MANU/SC/0104/1993

Equivalent Citation: AIR1993SC477, [1992]Supp2SCR454

IN THE SUPREME COURT OF INDIA
Civil Appeals Nos. 2684-90; 4043 of 1982,
Decided On: 16.11.1992
Appellants: Indra Sawhney etc. etc
Vs.
Respondent: Union of India and others, etc. etc.
Hon'ble Judges:
M. H. Kania, C.J., M.N. Venkatachaliah, S. Ranavel Pandian, Dr. T.K Thommen, A. M.
Ahmadii, Kuldip Singh Singh, P.B. Sawant, R.M. Sahai and B.P. Jeevan Reddy Reddy,
JJ.
Counsels: 
For Appellant/Petitioner/Plaintiff: M.L. Verma, G.L. Sanghi, S. K. Verma Manoj
Prasad, Minoti Mukerji andA.K. Srivastava, Advs
Subject: Constitution
Catch Words
Mentioned IN
Acts/Rules/Orders: 
Constitution of India - Articles 5, 10, 12, 14-18, 25, 29, 32, 38, 73, 77(3), 87(2), 118,
141, 145(1), 146(1), 148(5), 162, 166(3), 176(2), 187(3), 208, 225, 226, 227(2),; Civil
Rights Act, 1964; Communications Act, 1934; Scheduled Castes and Scheduled Tribes
Order (Amendment) Act, 1976 - Section 5
Cases Referred:
State of Andhra Pradesh v. P. Sagar MANU/SC/0028/1968; State of Andhra Pradesh v.
U. S. K Balram,MANU/SC/0061/1972; T. Devadasan v. Union of
India MANU/SC/0270/1963; General Manager, Southern Railway v.
Rangachari MANU/SC/0388/1961; State of Madras v. Champakam
Dorairajan,MANU/SC/0007/1951; Chitralekha v. State of Mysore MANU/SC/0030/1964;
Minor P. Rajendran v. State of Madras, MANU/SC/0025/1968; State of Uttar Pradesh v.
Pradip Tandon, MANU/SC/0086/1974; Auditor General of India v. Mohan Lal
Mehrotra, MANU/SC/0495/1991; Sant Ram Sharma v. State of
Rajasthan,MANU/SC/0330/1967; Akhil Bhartiya Soshit Karamchari Sangh (Railways) v.
Union of IndiaMANU/SC/0058/1980; Golaknath v. State of
Pubjab MANU/SC/0029/1967; Barium Chemicals v. Company Law
Board MANU/SC/0037/1966; State of Punjab v. Hiralal MANU/SC/0066/1970; State of
M.P. v. Nivedita JainMANU/SC/0093/1981; Punjab Province v. Daulat
Singh, MANU/PR/0001/1946; Orient Paper and Industries Ltd. v. State of
Orissa MANU/SC/0169/1991; Hari Vishnu Kamath v. Syed Ahmed
Ishaque, MANU/SC/0095/1954; Mangal Singh v. Punjab State
Police, MANU/PH/0065/1968; Official Liquidator v. Dharti DhanMANU/SC/0049/1977;
Delhi Administration v. I.K. Nangia MANU/SC/0251/1979; Dr. N.B. Khare v. The State of
Delhi MANU/SC/0004/1950; Govindji v. Municipal Corporation,
Ahmedabad MANU/MH/0010/1958; Virendra v. The Stateof
Punjab, MANU/SC/0023/1957; Hindustan Zinc v. A.P. State Electricity
BoardMANU/SC/0340/1991; Sitaram Sugars v. Union of India MANU/SC/0249/1990;
D.C.M. v. S. Paramjit SinghMANU/SC/0410/1990; Minerva Talkies v. State of
Karnataka MANU/SC/0281/1988; State of Karnataka v. Ranganath
Reddy MANU/SC/0062/1977; Kerala State Electricity Board v. S.N. Govind
PrabhuMANU/SC/0288/1986; Prag Ice Company v. Union of
India MANU/SC/0493/1978; Saraswati Industries Syndicate Ltd. v. Union of
India MANU/SC/0075/1974; Narender Kumar v. Union of India, MANU/SC/0013/1959;
Mohan Kumar Singhania v. Union of India; Oliver Brown et. al. v. Board of Education of
Topeka et. al. 347 US 483 , 98 L Ed 873); The Central Bank of India v. Their
Workmen, MANU/SC/0142/1959; Harsharan Verma v. Union of
India MANU/SC/0112/1987; Smt. Indira Nehru Gandhi v. Shri Raj
Narain, MANU/SC/0304/1975; Shri Ram Krishna Dalmia v. Shri Justice S.R.
Tendolkar MANU/SC/0024/1958; Supreme Court Employees' Welfare Association v.
Union of India MANU/SC/0582/1989; Subhashini v. State of
Mysore, MANU/KA/0105/1966; Jagdish Rai v. State of Haryana MANU/PH/0013/1977;
Chhotey Lal v. State of U.P. MANU/UP/0039/1979
Authorities Referred: 
H.W.R. Wade Administrative Law v. Edn; Halsbury's Laws of England IV Edn. Vol. V;
Webster's Encyclopedic Unabridged Dictionary; Collins English Dictionary
Prior History: 
From the Judgment and Order dated 23.12.1981 of Madras High Court in Tax Cases
(Revision) Nos. 206-210, 586 and 825 of 1979
Case Note:

Constitution - reservation - Articles 16 (1) and 16 (4) of Constitution of India and

Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 - matter
pertaining to reservation for backward classes in public services - for reservation
class must be backward and not adequately represented in services under State -
identification of backward classes subject to judicial review - reservations
contemplated in matter of employment in Article 16 (4) not to exceed 50% - rule of
50% to be applied each year - said rule cannot be related to total strength of
class, service or cadre - reservation of posts under Article 16 (4) confined to
initial appointment only and cannot extend to providing reservation in matter of
promotion - vacancies reserved to be carried forward for maximum period of
three years - creamy layer amongst backward class of citizens to be excluded by
fixation of proper income or status.
Citing Reference: 

M.R. Balaji and Ors. v. State of Mysore Discussed

C.A. Rajendran v. Union of India MANU/SC/0358/1967

Dissented

State of Andhra Pradesh and Ors. v. P. Sugar MANU/SC/0028/1968

Discussed

State of Andhra Pradesh and Ors. v. U.S.V. Balram MANU/SC/0061/1972

Discussed
A. Peeriakaruppan etc. v. State of Tamil Nadu MANU/SC/0055/1970 Discussed

Devadasan v. Union of India MANU/SC/0270/1963 Discussed

Genral Manager, Southern Railway v. Rangahari

Dissented

State of Madras v. Champakam Dorairajan MANU/SC/0007/1951

Dissented

Venkataraman v. State of Madras Dissented

Chitralekha v. State of Mysore MANU/SC/0030/1964 Discussed

Minor P.Rajendran v. State of Madras

Discussed

State of Andhra Pradesh v. Balram Discussed

Janaki Prasad Parimoo v. State of Jammu & Kashmir MANU/SC/0393/1973

Mentioned

K.C.Vasant Kumar and Anr. v. State of Karnataka Discussed

Dred Scott v. Sanford Dissented

Oliver Brown v. Board of Education of Topeka

Mentioned

Boiling v. Shrarpe
Mentioned

Plessey v. Ferguson Discussed

Defunis v. Charles Odeqaard Discussed

Regents of the University of California v. Allan Bakke Discussed

Fullilove v. Phillip M. Klutznick Discussed

Metro Broadcasting, Inc. v. Federal Communications Commission

Discussed

Board of Education v. Swan

Mentioned

Comptroller and Auditor General of India v. Mohan Lal Mehrotra MANU/SC/0495/1991

Discussed

Sant Ram Sharma v. State of Rajasthan MANU/SC/0330/1967

Mentioned
Akhil Bhartiya Soshit Karamchari Sangh (Railways) v. Union of
India Discussed

State of Kerala and Ors. v. N.M. Thomas MANU/SC/0479/1975 Dissented

K.S.Jayasree and Anr. v. State of Kerala and Anr. MANU/SC/0068/1976 Dissented

Madhu Limaye Mentioned

Golaknath v. State of Punjab MANU/SC/0029/1967 Dissented

Dhillon v. Union of India MANU/SC/0060/1971

Mentioned

Kesvananda Bharti v. Kerala

Mentioned

Barium Chemicals v. Company Law Board MANU/SC/0037/1966

Mentioned

Narayan Rao v. State Dissented

State of Punjab v. Hiralal MANU/SC/0066/1970

Dissented

Comptroller and Auditor General v. K.S. Jagannathan MANU/SC/0066/1986

Dissented

State of M.P. v. Nivedita Jain MANU/SC/0093/1981 Discussed

Trilok Nath Tiku and Anr. v. State of Jammu & Kashmir and Ors. MANU/SC/0234/1966
Discussed

State of Uttar Pradesh v. Pradeep Tandon and Ors MANU/SC/0086/1974

Discussed

K.C. Vasanth Kumar v. Karnataka Dissented

State of Kerala and Ors. v. N.M. Thomas MANU/SC/0479/1975 and Ors

Dissented

M.R. Balaji v. State of Mysore Dissented

Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. MANU/SC/0068/1976
Dissented

Punjab Province v. Daulat Singh and Ors. Mentioned

Orient Paper and Industries Ltd. v. State of Orissa MANU/SC/0169/1991

Mentioned

In re. Hatschek's Patents Mentioned

Hari Vishnu Kamath v. Syed Ahmed Ishaque and Ors. MANU/SC/0095/1954
Mentioned

B. Venkataramana v. State of Madras Dissented

Mangal Singh v. Punjab State Police MANU/PH/0065/1968 Mentioned

Chief Controlling Revenue Authority v. Maharashtra Sugar Mills

Ltd. Mentioned

Official Liquidator v. Dharti Dhan MANU/SC/0049/1977

Mentioned

Delhi Administration v. I.K. nangia MANU/SC/0251/1979

Mentioned

Dr. N.B. Khare v. The State of Delhi MANU/SC/0004/1950 Mentioned

Govindji v. Municipal Corporation, Ahmedabad MANU/MH/0010/1958 Mentioned

Virendra v. The State of Punjab and Anr. MANU/SC/0023/1957

Mentioned

Rohtas Industries v. S.D. Agarwal and Ors. MANU/SC/0020/1968

Mentioned

Hindustan Zinc v. A.P. State Electricity Board MANU/SC/0340/1991 Mentioned

Sitaram Sugars v. Union of India and Ors. Mentioned

D.C.M. v. S. Paramjit Singh MANU/SC/0410/1990

Mentioned

Minerva Talkies v. State of Karnataka and Ors.

Mentioned

State of Karnataka v. Ranganath Reddy MANU/SC/0062/1977 Mentioned

Kerala State Electricity Board v. S.N. Govind Prabhu MANU/SC/0288/1986

Mentioned

Prag Ice Company v. Union of India and Ors.

Mentioned

Saraswati Industries Syndicate Ltd. v. Union of India MANU/SC/0075/1974

Mentioned

Murti Match Works v. Assistance Collector, Central Excise and Ors.

Mentioned

I. Govindraja Mudaliar v. State of Tamil Nadu and Ors. MANU/SC/0323/1973 Mentioned

Narender Kumar v. Union of India and Ors.
Mentioned

Mohan Kumar Singhania v. Union of India

Dissented

Sreenarayana Dharma Paripalana Yogam v. Union of India Mentioned

City of Richmond v. J.A. Croson Co Mentione

Wendy Wygant v. Jackson Board of Education Mentioned

Smt. Indira Nehru Gandhi v. Shri Raj Narain MANU/SC/0304/1975

Mentioned

Minerva Mills Ltd. and Ors. v. Union of India and Ors. MANU/SC/0075/1980
Mentioned

Waman Rao and Ors. v. Union of India and Ors. MANU/SC/0091/1980 Mentioned

The General Manager, Southern Railway v. Rangachari MANU/SC/0388/1961 Mentioned

State of Kerala and Anr. v. N.M. Thomas and Ors. MANU/SC/0479/1975

Mentioned

Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors. MANU/SC/0024/1958
Mentioned

Kumari K.S. Jayasree and Anr. v. State of Kerala and Anr. MANU/SC/0068/1976
Discussed

Janki Prasad Parimoo and Ors. v. State of Jummu & Kashmir and Ors. Dissented

'Supreme Court Employees' Welfare Association v. Union of India

and Anr. Mentioned
he Central The Central Bank of India v. Their WorkmenMentioned

Harsharan Verma v. Union of India and Anr. MANU/SC/0112/1987

Mentioned

Kahar Singh and Anr. v. Union of India and Anr. MANU/SC/0240/1988 Mentioned

Kihota Hollohon v. Zechilhu

Mentioned

State of Rajasthan and Ors. v. Union of India MANU/SC/0370/1977

Mentioned

Sturges v. Crowninshield Dissented

Javed Niaz Beg and Anr. v. Union of India and Anr. MANU/SC/0070/1980
Dissented
State of Rajasthan v. Pradip Singh MANU/SC/0024/1960 Dissented

Chitra Ghosh and Anr. v. Union of India MANU/SC/0042/1969 Dissented

D.N. Chanchala v. State of Mysore MANU/SC/0040/1971 Dissented

Jagdish Rai v. State of Haryana MANU/PH/0013/1977

Mentioned

Political, sufferers, sportsman, Children of MISA, State of Karnataka

v. Jacob Maltew Mentioned

DSIR, Chhotey Lal v. State of U.P. MANU/UP/0039/1979

Mentioned

Griffin v. Illionoi
Dissented

Harper v. Virginia Board of Educations Dissented

Dhirendra Kumar Mandal v. The Supdt. & Remembrancer of Legal

Affairs to the Govt. of West Bengal and Anr
Mentioned

ORDER
1. Judgment of The Chief Justice, M.N. Venkatachallah, A.M. Ahmadi and B.P. Jeevan
Reddy, JJ. Delivered by B.P. Jeevan Reddy, J.
B.P. Jeevan Reddy, J.
Forty and three years ago was founded this republic with the fourfold objective of
securing to its citizens justice, liberty, equality and fraternity. Statesmen of the highest
order the like of which this country has not seen since - belonging to the fields of law,
politics and public life came together to fashion the instrument of change - the
Constitution of India. They did not rest content with evolving the framework of the State;
they also pointed out the goal-and the methodology for reaching that goal. In the
preamble, they spelt out the goal and in parts III and IV, they elaborated the
methodology to be followed for reaching that goal.
2. The Constituent Assembly, though elected on the basis of a limited franchise, was yet
representative of all sections of society. Above all, it was composed of men of vision,
conscious of the historic but difficult task of carving an egalitarian society from out of a
bewildering mass of religions, communities, castes, races, languages, beliefs and
practices. They knew their country well. They understood their society perfectly. They
were aware of the historic injustices and inequities afflicting the society. They realised
the imperative of redressing them by constitutional means, as early as possible - for the
alternative was frightening. Ignorance, illiteracy and above all, mass poverty, they took
note of. They were conscious of the fact that the Hindu religion - the religion of the
overwhelming majority - as it was being practiced, was not known for its egalitarian
ethos. It divided its adherents into four watertight compartments. Those outside this
fourtier system (chaturvarnya) were the outcastes (Panchamas), the lowliest. They did
not even believed all the caste system - ugly as its face was. The fourth, shudras, were
no better, though certainly better than the Panchamas. The lowliness attached to them
(Shudras and Panchamas) by virtue of their birth in these castes, unconnected with
their deeds. There was to be no deliverance for them from this social stigma, except
perhaps death. They were condemned to be inferior. All lowly, menial and unsavoury
occupations were assigned to them. In the rural life, they had no alternative but to follow
these occupations, generation after generation, century after century. It was their
'karma', they were told, the penalty for the sins they allegedly committed in their
previous birth. Pity is, they believed all this. They were conditioned to believe it. This
mental blindfold had to be removed first. This was a phenomenon peculiar to this
country. Poverty there has been - and there is - in every country. But none had the
misfortune of having this social division - or as some call it, degradation - super-
imposed on poverty. Poverty, low social status in Hindu caste system and the lowly
occupation constituted - and do still constitute - a vicious circle. The founding fathers
were aware of all this - and more.
3. 'Liberty, equality and fraternity' was the battle cry of the French Revolution. It is also
the motto of our Constitution, with the concept of 'Justice-Social Economic and Poilitical'
- the sum-total of modern political thought - super-added to it. Equality has been and is
the single greatest craving of all human beings at all points of time. It has inspired many
a great thinker and philosopher. All religious and political schools of thought swear by it,
including the Hindu religious thought, if one looks to it ignoring the later crudities and
distortions. Liberty of thought, expression, belief, faith and worship has equally been an
abiding faith with all human beings, and at all times in this country in particular.
Fraternity assuring the dignity of the individual has a special relevance in the Indian
context, as this Judgment will illustrate in due course.
4. The doctrine of equality has many facets. It is a dynamic, and an evolving concept. Its
main facets, relevant to Indian Society, have been referred to in the preamble and the
articles under the sub-heading "Right to equality"-(Articles 14 to 18). In short, the goal is
"equality of status and of opportunity". Articles 14 to 18 must be understood not merely
with reference to what they say but also in the light of the several articles in Part IV
(Directive Principles of State Policy). "Justice, Social, Economic and Political", is the
sum total of the aspirations incorporated in part IV.
5. Article 14 enjoins upon the state not to deny to any person "equality before the law"
or "the equal protection of the laws" within the territory of India. Most constitutions speak
of either "equality before the law" or "the equal protection of the laws", but very few of
both. Section 1 of the XIV. Amendment to the U.S. Constitution uses only the latter
expression while the Austrian Constitution (1920), the Irish Constitution (1937) and the
West German Constitution (1949) use the expression "equal before the law". (Article 7
of the Universal Declaration of Human Rights, 1948, of course, declares that "all are
equal before the law and are entitled without any discrimination to equal protection of
the law".) The content and sweep of these two concepts is not the same though there
may be much in common. The content of the expression "equality before the law" is
illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in
particular, Articles 38, 39,39A, 41 and 46. Among others, the concept of equality before
the law contemplates minimising the inequalities in income and eliminating the
inequalities in status, facilities and opportunities not only amongst individuals but also
amongst groups of people, securing adequate means of livelihood to its citizens and to
promote with special care the educational and economic interests of the weaker
sections of the people, including in particular the Scheduled Castes and Scheduled
Tribes and to protect them from social injustice and all forms of exploitation. Indeed, in a
society where equality of status and opportunity do not obtain and where there are
glaring inequalities in incomes, there is no room for equality - either equality before law
or equality in any other respect.
6. The significance attached by the founding fathers to the right to equality is evident not
only from the fact that they employed both the expressions 'equality before the law' and
'equal protection of the laws' in Article 14 but proceeded further to state the same rule in
positive and affirmative terms in Articles 15 to 18. Through Article 15they declared in
positive terms that the state shall not discriminate against any citizen on the grounds
only of religion, race, caste, sex, place of birth or any of them. With a view to eradicate
certain prevalent undesirable practices it was declared in Clause (2) of Article 15 that no
citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of
them be subject to any disability, liability, restriction or condition with regard to shops,
public restaurants, hotels and place of public entertainment or to the use of well, tanks,
bathing ghats, roads and place of public resort maintained wholly or partly out of state
funds or dedicated to the use of general public. At the same time, with a view to
ameliorate the conditions of women and children a provision was made in Clause (3)
that nothing in the said Article shall prevent the state from making any special provision
for women and children.
7. In as much as public employment always gave a certain status and power - it has
always been the repository of State power - besides the means of livelihood, special
care was taken to declare equality of opportunity in the matter of public employment by
Article 16. Clause (1) expressly declares that in the matter of public employment or
appointment to any office under the state, citizens of this country shall have equal
opportunity while Clause (2) declares that no citizen shall be discriminated in the said
matter on the grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them. At the same time, care was taken to declare in Clause (4) that
nothing in the said Article shall prevent the state from making any provision for
reservation of appointments or posts in favour of any backward class of citizen which in
the opinion of the state is not adequately represented in the services under the state.
Article 17 abolishes the untouchability while Article 18 prohibits conferring of any titles
(not representing military or academic distinction). It also prohibits the citizens of this
country from accepting any title from a foreign state.
8. Article 16 has remained unamended, except for a minor amendment in Clause (3)
whereas Article 15 had Clause (4) inserted in it by the First Amendment Act, 1951. As
amended, they read as follows:

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
- (1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to-

(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
(4) Nothing in this article or in Clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
16. Equality of opportunity in matters of public employment. - (1) There shall be equality
of opportunity for all citizens in matters relating to employment or appointment to any
office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in
regard to a class or classes of employment or appointment to an office under the
Government of, or any local or other authority within, a State of Union territory, any
requirement as to residence within that State or Union territory prior to such
employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the
reservation of apointments or posts in favour of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under the State.
(5) Noting in this article shall affect the operation of any law which provides that the
incumbent of an office in connection with the affairs of any religious or denominational
institution or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.

The other provisions of the Constitution having a bearing on Article 16 are

Articles 38, 46 and the set of articles in Part XVI. Clause (1) of Article 38 obligates the
State to "strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall
inform all the institutions of the national life."
Clause (2) of Article 38, added by the 44th Amendment Act says, "the State shall, in
particular, strive to minimise the inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only amongst individuals but also
amongst groups of people residing in different areas or engaged in different vocations."
Article 46 contains a very significant directive to the State. It says:

46. Promotion of educational and economic interests of Scheduled Castes, Scheduled

Tribes and other weaker sections. - The State shall promote with special care the
educational and economic interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation.

It is evident that "the weaker sections of the people" do include the "backward class of
citizens" contemplated by Article 16(4).
Part XVI of the Constitution contains "special provisions relating to certain classes". The
"classes" for which special provisions are made are, Scheduled Castes, Scheduled
Tribes and the Anglo-Indian Community. It also provides for appointment of a
Commission to investigate the conditions of and the difficulties faced by the socially and
educationally backward classes and to make appropriate recommendations.
Article 340 reads as follows:

340. Appointment of a Commission to investigate the conditions of backward classes. -

(1) The President may by order appoint a Commission consisting of such persons as he
thinks tit 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 taken by the Union of any State to
remove such difficulties and to improve their condition and as to the grants that should
be made for the purpose by the Union or any State and the conditions subject to which
such grants should be made, and the order appointing such Commission shall define
the procedure to be followed by the Commission.
(2) A Commission so appointed shall investigate the matters referred them and present
to the President a report setting out the facts as found by them and making such
recommendations as they think proper.
(3) The President shall cause a copy of the report so presented together with a
memorandum explaining the action taken thereon to be laid before each House of
Parliament.

Article 338, which has been extensively amended by the Sixty-fifth Amendment Act,
provides for establishment of a Commission for the Scheduled Castes and Scheduled
Tribes to be known as 'the National Commission for the Scheduled Castes and
Scheduled Tribes'. Clause (5) prescribes the duties of the Commission. They are:

(5) It shall be duty of the Commission-

(a) to investigate and monitor all matters relating to the safeguards provided for the
Scheduled Castes and Scheduled Tribes under this Constitution or under any other law
for the time being in force or under any order of the Government and to evaluate the
working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and
safeguards of the Scheduled castes and Scheduled Tribes;
(c) to participate and advise on the planning process of socio-economic development of
the Scheduled Castes and Scheduled Tribes and to evaluate the progress of their
development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission
may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendations as to the measures that should be taken
by the Union or any State for the effective implementation of those safeguards and
other measures for the protection, welfare and socioeconomic development of the
Scheduled Castes and Scheduled Tribes; and
(f) to discharge such other functions in relation to the protection, welfare and
development and advancement of the Scheduled Castes and Scheduled Tribes as the
President may, subject to the provisions of any law made by Parliament, by rule specify.

Clause (6) provides that "the President shall cause all such reports to be laid before
each House of Parliament along with a memorandum explaining the action taken or
proposed to be taken on the recommendations relating to the Union and the reasons for
the non-acceptance, if any, of any of such recommendations."
Clause (7) being relevant may also be read here. It reads, "where any such report, or
any part thereof, relates to any matter with which any State Government is concerned, a
copy of such report shall be forwarded to the Governor of the State who shall cause it to
be laid before the Legislature of the State along with a memorandum explaining the
action taken or proposed to be taken on the recommendations relating to the State and
the reasons for the non-acceptance, if any, of any of such recommendations."
Clause (10) [Clause (3) prior to 65th Amendment Act] brings in socially and
educationally backward classes identified by the Government on the basis of the report
of the Commission appointed under Article 340 and Anglo-Indians within the purview of
the expressions "Scheduled Castes and Scheduled Tribes". It reads as follows:

10. In this article references to the Scheduled Castes and Scheduled Tribes shall be
construed as including references to such other backward classes as the President
may, on receipt of the report of a Commission appointed under Clause (1) of
Article 340, by order specify and also to the Anglo-Indian community.

Article 335 provides that "the claims of the members of the Scheduled Castes and the
Scheduled Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State." It is obvious that if the claims of
even Scheduled Castes and Scheduled Tribes are to be taken into consideration
consistently with the maintenance of efficiency of administration, the said admonition
has to be respected equally while taking into consideration the claims of other backward
classes and other weaker sections.
THE FIRST BACKWARD CLASSES COMMISSION (KALELKAR COMMISSION):
9. The proceedings of the Constituent Assembly on draft Article (10) disclose a
persistent and strident demand from certain sections of the society for providing
reservations in their favour in the matter of public employment. While speaking on the
draft Article 10(3) [corresponding to Article 16(4)] Dr. Ambedkar had stated, "then we
have quite a massive opinion which insists that although theoretically it is good to have
the principle that there shall be equality of opportunity, there must at the same time be a
provision made for the entry of certain communities which have so far been outside the
administration." It was this demand which was mainly responsible for the incorporation
of Clause (4) in Article 16. As matter of fact, in some of the southern States,
reservations in favour of O.B.Cs. were in vogue since quite a number of years prior to
the Constitution. There was a demand for similar reservations at the center. In response
to this demand and also in realisation of its obligation to provide for such reservations in
favour of backward sections of the society, the Central Government appointed a
Backward Class Commission under Article 340 of the Constitution on January 29, 1953.
The Commission, popularly known as Kaka Kalelkar Commission, was required "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 taken by the Union or any State to
remove difficulties and to improve their conditions". The Commission submitted its
report on March 30, 1955. According to it, the relevant factors to consider while
classifying backward classes would be their traditional occupation and profession, the
percentage of literacy or the general educational advancement made by them; the
estimated population of the community and the distribution of the various communities
throughout the state or their concentration in certain areas. The Commission was also
of the opinion that the social position which a community occupies in the caste hierarchy
would also have to be considered as well as its representation in Government service or
in the Industrial sphere. According to the Commission, the causes of educational
backwardness amongst the educationally and backward communities were (i) traditional
apathy for education on account of social and environmental conditions or occupational
handicaps: (ii) poverty and lack of educational institutions in rural areas and (iii) living in
inaccessible areas. The Chairman of the commission, Kaka Kalelkar, however, had
second thoughts after signing the report. In the enclosing letter addressed to the
President he virtually pleaded for the rejection of the report on the ground that the
reservations and other remedies recommended on the basis of caste would not be in
the interest of society and country. He opined that the principle of caste should be
eschewed altogether. Then alone, he said, would it be possible to help the extremely
poor and deserving members of all the communities. At the same time, he added,
preference ought to be given to those who come from traditionally neglected social
classes.
10. The report made by the Commission was considered by the Central Government,
which apparently was not satisfied with the approach adopted by the Commission in
determining the criteria for identifying the backward classes under Article 15(4). The
Memorandum of action appended to the Report of the Commission while placing it on
the table of the Parliament [as required by Clause (3) of Article 340] on September 3,
1956, pointed out that the caste system is the greatest hindrance in the way of our
progress to egalitarian society and that in such a situation recognition of certain
specified castes as backward may serve to maintain and perpetuate the existing
distinctions on the basis of caste. The Memorandum also found fault with certain tests
adopted by the Commission for identifying the backward classes. It expressed the
opinion that a more systematic and elaborate basis has to be evolved for identifying
backward classes. Be that as it may, the Report was never discussed by the
Parliament.
11. No meaningful action was taken after 1956 either for constituting another
Commission or for evolving a better criteria. Ultimately, on August 14, 1961, the Central
Government wrote to ail the State Governments stating inter alia that "while the State
Governments have the discretion to choose their own criteria for defining
backwardness, in the view of the Government of India it would be better to apply
economic tests than to go by caste." The letter stated further, rather inexplicably, that
"even if the Central Government were to specify under Article 338(3) certain groups of
people as belonging to 'other backward classes', it will still be open to every State
Government to draw up its own lists for the purposes of Articles 15 and 16. As,
therefore, the State Governments may adhere to their own lists, any All-India list drawn
up by the Central Government would have no practical utility." Various State
Governments thereupon appointed Commissions for identifying backward classes and
issued orders identifying the socially and educationally backward classes and reserving
certain percentage of posts in their favour. So far as the Central services are
concerned, no reservations were ever made in favour of other backward classes though
made in favour of Scheduled Castes and Scheduled Tribes.
THE SECOND BACKWARD CLASSES COMMISSION (MANUAL COMMISSION):
12. By an Order made by the President of India, in the year 1979, under Article 340 of
the Constitution, a Backward Class Commission was appointed to investigate the
conditions of socially and educationally backward classes within the territory of India,
which Commission is popularly known as Mandal Commission. The terms of reference
of the Commission were:

The terms of reference of the Commission were:-

(i) to determine the criteria for defining the socially and educationally backward classes;
(ii) to recommend steps to be taken for the advancement of the socially and
educationally backward classes of citizens so identified;
(iii) to examine the desirability or otherwise of making provision for the reservation of
appointments or posts in favour of such backward classes of citizens which are not
adequately represented in public services and posts in connection with the affairs of the
Union or of any State; and
(iv) present to the President a report setting out the facts as found by them and making
such recommendations as they think proper.

The Commission was empowered to:-

(a) obtain such information as they may consider necessary or relevant for their purpose
in such form and such manner as they may think appropriate, from the Central
Government, the State Government, the Union Territory Administrations and such other
authorities, organisations or individuals as may in the opinion of the Commission, be of
assistance to them: and
(b) hold their sittings or the sittings of such sub-committees as they may appoint from
amongst their own members of such times and such places as may be determined by,
or under the authority of the Chairman.

13. The report of the Commission was required to be submitted not later than 31st
December, 1979, which date was later extended upto December 31, 1980. It was so
submitted.
Chapter-I of the Report deals with the Constitution of First Backward Classes
Commission (Kaka Kalelkar Commission), its report, the letter of Kaka Kalelkar to the
President, the lack of follow-up action and the letter of the Central Government referred
to hereinbefore to State Governments to draw up their own lists. It also points out
certain "internal contradictions" in the Report. Chapter-II deals with the "Status of other
backward classes in some States". It sets out the several provisions relating to
reservation in favour of O.B.Cs. obtaining in several States and the history of such
reservations. Chapter-III is entitled 'methodology and data base'. It sets out the
procedure followed by the Commission and the material gathered by them. Paras 3.1
and 3.2 read thus:

3.1. One important reason as to why the Central Government could not accept the
recommendations of Kaka Kalelkar Commission was that it had not worked out
objective tests and criteria for the proper classification of socially and educationally
backward classes. In several petitions filed against reservation orders issued by some
State Governments, the Supreme Court and various High Courts have also emphasised
the imperative need for an empirical approach to the defining of socially and
educationally backwardness or identification of Other Backward Classes.
3.2 The Commission has constantly kept the above requirements in view in planning the
scope of its activities. It was to serve this very purpose that the Commission made
special efforts to associate the leading Sociologists, Research Organisations and
Specialised Agencies of the country with every important facet of its activity. Instead of
relying on one or two established techniques of enquiry, we tried to caste our net far
and wide so as to collect facts and get feed-back from as large an area as possible. A
brief account of this activity is given below.

It then refers to the Seminar held by Department of Anthropology of Delhi University in

March 1979, to the questionnaire issued to all departments of Central Government and
to the State Governments (the proforma are compiled in Vol. II of the Report) the
country-wide touring undertaken by the Commission, the evidence recorded by it, the
socio-educational field survey conducted by it and other studies and Reports involved in
its work. In Chapter-IV the Commission deals with the interrelationship between social
backwardness and caste. It describes how the fourth caste, Shudras, were kept in a
state of intellectual and physical subjugation and the historical injustices perpetrated on
them. In para 4.5 the Commission states: "The real triumph of the caste system lies not
in upholding the supremacy of the Brahmin, but in conditioning the consciousness of the
lower castes in accepting their inferior status in the ritual hierarchy as a part of the
natural order of things.... It was through an elaborate, complex and subtle scheme of
scripture, mythology and ritual that Brahminism succeeded in investing the caste
system with a moral authority that has been seldom effectively challenged even by the
most ardent social reformers."
14. Chapter-V deals with 'social dynamics of caste'. In this chapter, the Commission
emphasises the fact that notwithstanding public declarations condemning the caste, it
has remained a significant basis of action in politics and public life. Reference is made
to several caste associations, which have come into being after the Constitution. The
concluding part in this Chapter, para 5.17, reads:

The above account should serve as a warning against any hasty conclusion about the
weakening of caste as the basis of social organisation of the Hindu society. The pace of
social mobility is no doubt increasing and some traditional features of the caste system
have inevitably weakened. But what caste has lost on the ritual front, it has more than
gained on the political front. This has also led to some adjustments in the power
equation between the high and low castes and thereby accentuated social tensions.
Whether these tensions rent the social fabric or the country is able to resolve them by
internal adjustments will depend on how understandingly the ruling high castes handle
the legitimate aspirations and demands of the historically suppressed and backward
classes.

Chapter-VI deals with 'Social Justice, Merit and Privilege'. It attempts to establish, that
merit in a elitist society is not something inherent but is the consequence of
environmental privileges enjoyed by the members of higher castes. This is sought to be
illustrated by giving an example of two boys - Lallu and Mohan. Lallu is a village boy
belonging to a backward class occupying a low social position in the village caste
hierarchy. He comes from a poor illiterate family and studies at a village school, where
the level of instruction is woeful. On the other hand, Mohan comes from a fairly well-off
middle class and educated family, attends one of the good public schools in the city,
has assistance at home besides the means of acquiring knowledge through television,
radio, magazines and so on. Even though both Lallu and Mohan possess the same
level of intelligence, Lallu can never compete with Mohan in any open competition
because of the several environmental disadvantages suffered by him.
15. Chapter-VII deals with 'Social justice. Constitution and the law'. It refers to the
relevant provisions of the Constitution, to the decision in M.R. Balaji and Ors. v. State of
Mysore [1963] Suppl. 1 S.C.R. 439 and various subsequent decisions of this Court and
discusses the principles flowing from the said decisions. It notes that the subsequent
decisions of this Court in C.A. Rajendran v. Union of India MANU/SC/0358/1967 :
(1968)IILLJ407SC ; State of Andhra Pradesh and Ors. v. P. Sugar
MANU/SC/0028/1968 : [1968]3SCR595 and State of Andhra Pradesh and Ors.
v. U.S.V. Balram MANU/SC/0061/1972 : [1972]3SCR247 etc. show a marked shift from
the original position taken in Balaji on several important points. In particular, it refers to
the observations in Rajendran to the effect that "caste is also a class of citizens and if
the class as a whole is socially and educationally backward, reservation can be made in
favour of such a caste on the ground that it was socially and educationally backward
class of citizens within the meaning of Article 15(4)". It refers to the statement in A.
Peeriakaruppan etc. v. State of Tamil Nadu MANU/SC/0055/1970 : [1971]2SCR430 , to
the effect that "a caste has always been recognised as a class." It also commends the
dissenting view of Subba Rao, J. in T. Devadasan v. Union of India
MANU/SC/0270/1963 : (1965)IILLJ560SC , (wrongly referred to as Rangachari) -
General Manager, Southern Railway v. Rangahari MANU/SC/0388/1961 :
(1970)IILLJ289SC .
Chapter-VIII deals with 'North-South Comparison of other Backward Classes Welfare'. It
is a case study of provisions in force in two Southern States namely Tamil Nadu and
Karnataka and the two Northern States, Bihar and Uttar Pradesh. The conclusions
drawn from the discussion are stated in para 8.45 in the following words:
"In view of the foregoing account, the reasons for much stronger reaction in the North
than South to reservations, etc. for other Backward Classes may be summarised as
below:-

(1) Tamil Nadu and Karnataka had a long history of Backward Classes movements and
various measures for their welfare were taken in a phased manner. In Uttar Pradesh
and Bihar such measures did not mark the culmination of a mass movement.
(2) In the South "the forward communities have been divided either by the classification
schemes or politically or both.... In Bihar and U.P. the G.Os. have not divided the
forward castes.
(3) In the South, clashes between Scheduled Castes and Backward peasant castes
have been rather mild. In the North these cleavages have been much sharper, often
resulting in acts of violence. This has further weakened the backward classes solidarity
in the North.
(4) in the non-Sanskritic South, the basic Varna cleavage was between Brahmins and
non-Brahmins and Brahmins constituted only about 3 per cent of the population. In the
Sanskritic North, there was no sharp cleavage between the forward castes and together
they constituted nearly 20 per cent of the population. In view of this the higher castes in
U.P. and Bihar were in a stronger position to mobilise opposition to backward class
movement.
(5) Owing to the longer history and better organisation of Other Backward castes in the
South, they were able to acquire considerable political clout. Despite the lead given by
the Yadavas and other peasant castes, a unified and strong OBC movement has not
emerged in the North so far.
(6) The traditions of semi-feudalism in Uttar Pradesh and Bihar have enabled the
forward castes to keep tight control over smaller backward castes and prevent them
from joining the mainstream of backward classes movement. This is not so in the south.
(7) "The economies of Tamil Nadu and Karnataka have been expanding relatively
faster. The private tertiary sector appears to be growing. It can shelter many forward
caste youths. Also, they are prepared to migrate outside the State. The private tertiary
sectors in Bihar and U.P. are stagnant. The forward caste youths in these two States
have to depend heavily on Government jobs. Driven to desperation, they have reacted
violently."

16. Chapter-IX sets out the evidence tendered by Central and State Governments while
Chapter-X deals with the evidence tendered by the Public. Chapter-XI is quite important
inasmuch as it deals with the "Socio-Educational Field Survey and Criteria of
Backwardness". In this Chapter, the Commission says that it decided to tap a of number
of sources for the collection of data, keeping in mind the criticism against the Kaka
Kalelkar Commission as also the several Judgments of this Court. It says that Socio-
Educational Field Survey was the most comprehensive inquiry made by the
Commission in this behalf. Right from the beginning, this Survey was designed with the
help of top social scientists and specialists in the country. Experts from a number of
disciplines were associated with different phases of its progress. It refers to the work of
Research Planning Team of Sociologists and the work done by a panel of experts led
by Prof. M.N. Srinivas. It refers to the fact that both of them concurred that "in the Indian
context such collectivities can be castes or other hereditary groups traditionally
associated with specific occupations which are considered to be low and impure and
with which educational backwardness and low income are found to be associated." The
Commission says further that with a view to providing continuous guidance at the
operational level, a Technical Advisory Committee was set up under Dr. K.C. Seal.
Director General, Central Statistical Organisation with the Chief Executive, National
Sample Survey Organisation and representatives of Directors of State Bureau of
Economics and Statistics as Members. The Commission sets out the Methodology
evolved by the Experts' panel and states that survey operations were entrusted to the
State Statistical Organisations of the concerned States/Union Territories. It refers to the
training imparted to the survey staff and to the fact that the entire data so collected was
fed into a computer for electronic processing of such data. Out of the 406 districts in the
country, the survey covered 405 districts. In every district, two villages and one urban
block was selected and in each of these villages and urban blocks, every single
household was surveyed. The entire data collected was tabulated with the aid and
National Informatics center of Electronics Commission of India. The Technical
Committee constituted a Sub-Committee of Experts to help the Commission prepare
"Indicators of Backwardness" for analysing the data contained in the computerised
tables. In para 11.23 (page 52) the Commission sets out the eleven Indicators/Criteria
evolved by it for determining social and educational backwardness. Paras 11.23, 11.24
and 11.25 are relevant and may be set out in full:-

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

A. Social:

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

(ii) Castes/Classes which mainly depend on manual labour for their livelihood.
(iii) Castes/Classes where at least 25% females and 10% males above the state
average get married at an age below 17 years in rural areas and at least 10% females
and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females in work is at least 25% above the
State average.

B. Educational:

(v) Castes/Classes where the number of children in the age group of 5-15 years who
never attended school is at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is
at least 25% above the State average.
(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below
the State average.
C. Economic:

(viii) Castes/Classes where the average value of family assets is at least 25% below the
State average.
(ix) Castes/Classes where the number of families living in Kuccha houses is at least
25% above the State average.
(x) Castes/Classes where the source of drinking water is beyond half a kilometer for
more than 50% of the households.
(xi) Castes/Classes where the number of households having taken consumption loan is
at least 25% above the State average.

11.24. As the above three groups are not of equal importance for our purpose, separate
weightage was given to 'Indicators' in each group. All the Social 'Indicators' were given
a weightage of 3 points each. Educational 'Indicators' a weightage of 2 points each and
Economic 'Indicators' a weightage of one point each. Economic, in addition to Social
and Educational Indicators, were considered important as they directly flowed from
social and educational backwardness. This also helped to highlight the fact that socially
and educationally backward classes are economically backward also.
11.25. It will be seen that from the values given to each Indicators, the total score adds
upto 22. All these 11 Indicators were applied to all the castes covered by the survey for
a particular State. As a result of this application, all castes which had a score of 50
percent (i.e., 11 points) or above were listed as socially and educationally backward and
the rest were treated as 'advanced'. (It is a sheer coincidence that the number of
indicators and minimum point score for backwardness, both happen to be eleven).
Further, in case the number of households covered by the survey for any particular
caste were below 20, it was left out of consideration, as the sample was considered too
small for any dependable inference.

It will also be useful to set out the observations of the Commission in para 11.27:-

11.27. In the end it may be emphasised that this survey has no pretentions to being a
piece of academic research. It has been conducted by the administrative machinery of
the Government and used as a rough and ready tool for evolving a set of simple criteria
for identifying social and educational backwardness. Throughout this survey our
approach has been conditioned by practical considerations, realities of field conditions,
constraints of resources and trained manpower and paucity of time. All these factors
obviously militate against the requirements of a technically sophisticated and
academically satisfying operation.

17. Chapter-XII deals with 'Identification of OBCs'. In the first instance, the Commission
deals with OBCs among Hindu Communities. It says that it applied several tests for
determining the SEBCs like stigmas of low-occupation, criminality, nomadism, beggary
and untouchability besides inadequate representation in public services. The multiple
approach adopted by the Commission is set out in para 12.7 which reads:-
12.7. Thus, the Commission has adopted a multiple approach for the preparation of
comprehensive lists of Other Backward Classes for all the States and Union Territories.
The main sources examined for the preparation of these lists are:-

(i) Socio-educational field survey;

(ii) Census Report of 1961 (particularly for the identification of primitive tribes, aboriginal
tribes, hill tribes, forest tribes and indigenous tribes);
(iii) Personal knowledge gained through extensive touring of the country and receipt of
voluminous public evidences as described in Chapter X of this Report; and
(iv) Lists of OBCs notified by various State Governments.

The Commission next deals with OBCs among Non-Hindu Communities. In paragraphs
12.11 to 12.16 the Commission refers to the fact that even among Christian, Muslim and
Sikh religions, which do not recognise caste, the caste system is prevailing though
without religious sanction. After giving a good deal of thought to several difficulties in the
way of identifying OBCs among Non-Hindus, the Commission says, it has evolved a
rough and ready criteria viz., (1) all untouchables converted to any Non-Hindu religion
and (2) such occupational communities which are known by the name of their traditional
hereditary occupation and whose Hindu counter-parts have been included in the list of
Hindu OBCs - ought to be treated as SEBCs. The Commission then sought to work out
the estimated population of the OBCs in the country and arrived at the figure of 52 per
cent. Paras 12.19, 12.22 may be set out in full in view of their relevancy:

12.19 Systematic caste-wise enumeration of population was introduced by the Registrar

General of India in 1881 and discontinued in 1931. In view of this, figures of castewise
population beyond 1931 are not available. But assuming that the inter se rate of growth
of population of various castes communities and religious groups over the last half a
century has remained more or less the same, it is possible to work out the percentage
that all these groups constitute of the total population of the country.
12.22. From the foregoing it will be seen that excluding Scheduled Castes and
Scheduled Tribes, Other Backward Classes constitute nearly 52% of the Indian
population.

Percentage Distribution of Indian

Population by Caste and Religious
Groups

Percentage of
S.No. Group Name total
population
Scheduled
Castes and
I.
Scheduled
Tribes
Scheduled
A--1 15.05
Castes
A--2 Scheduled 7.51
 Tribes

Total of 'A' 02.56

Non-Hindu
Communities,
II.
Religious
Groups, etc.
Muslims
B--1 (other than 11.19
STs)
(0.02)*
Christians
B--2 (other than 2.16
STs)
(0.44)*
Sikhs (other
B--3 than SCs & 1.67
STs)
(0.22)*
Buddhists
B--4 (other than 0.67
STs)
(0.03)*
B--5 Jains 0.47

Total of 'B' 16.16

Forward
Hindu Castes
III.
&
Communities
Brahmins
C--1 (including 5.52
Bhumidars)
C--2 Rajputs 3.90
C--3 Marathas 2.21
C--4 Jats 1.00
Vaishyas-
C--5 1.88
Bania, etc.
C--6 Kayasthas 1.07
Other forward
C--7 Hindu castes 2.00
groups
Total of 'C'
TOTAL OF 'A',
56.30
'B' & 'C'
Backward
Hindu Castes
IV.
&
Communities
D. Remaining 43.70@
Hindu castes/
groups which
come in the
 category of
"Other
Backward
Classes"
V. Backward
Non-Hindu
Communities
52% of
religious
groups under
E. Section B may 8.40
also be
treated as
OBCs.
The
approximate
derived
population of
Other
F. 52%
Backward
Classes
including non-
Hindu
Communities
(Aggregate of
D& E,
rounded)

@ This is a derived figure.

* Figures in brackets give the
population of S.C. & S.T. among
these non-Hindu Communities."
1993 S.C./33 III G--9

18. Chapter-XIII contains various recommendations including reservations in services.

In view of the decisions of the Supreme Court limiting the total reservation to 50 per
cent, the Commission recommended 27 per cent reservation in favour of OBCs (in
addition to 22.5 per cent already existing in favour of SCs and STs). It recommended
several measures for improving the condition of these backward classes. Chapter-XIV
contains a summary of the report.
19. Volumes 2 to 9 of the Report contain and set out the material and the data on the
basis of which the Commission made its recommendations. Vol. II contains the State-
wise lists of Backward Classes, as identified by the Commission. (It may be
remembered that both the Scheduled Castes order and Scheduled Tribes order notified
by the President contain State-wise lists of Scheduled Castes and Scheduled Tribes).
Volume II inter alia contains the questionnaire issued to the State Governments/Union
Territories, the questionnaire issued to the Central Government Ministries/Departments,
the questionnaire issued to the general public, the list of M.Ps. and other experts who
appeared and gave evidence before the Commission, the criteria furnished to Central
Government offices for identifying OBC employees for both Hindu and non-Hindu
Communities, report of the Research Planning Team of the Sociologists and the
proformas employed in conducting the Socio-Education Survey.
20. The Report of the Mandal Commission was laid before each House of Parliament
and discussed on two occasions - once in 1982 and again in the year 1983. The
proceedings of the Lok Sabha placed before us contain the statement of Sri R.
Venkataraman, the then Minister for Defence and Home Affairs. He expressed the view
that "the debate has cut across party lines and a number of people on this side have
supported the recommendations of the Mandal Commission. A large number of people
on the other side have also supported it. If one goes through the entire debate one will
be impressed with a fairly unanimous desire on the part of all sections of the House to
find a satisfactory solution to this social evil of backwardness of Scheduled
Castes/Scheduled Tribes etc. which is a festering sore in our body politic," The Hon'ble
Minister then proceeded to state," the Members generally said that the
recommendations should be accepted. Some Members said that it should be accepted
in toto. Some Members have said that it should be accepted with certain reservations.
Some Members said, there should be other criteria than only social and educational
backwardness. But all these are ideas which Government will take into account. The
problem that confronts Government today is to arrive at a satisfactory definition of
backward classes and bring about an acceptance of the same by all the state
concerned." The Hon'ble Minister referred to certain difficulties the Government was
facing in implementing the recommendations of the Commission on account of the large
number of castes identified and on account of the variance in the State lists and the
Mandal Commission lists and stated that consultation with various departments and
State Governments was in progress in this behalf. He stated that a meeting of the Chief
Ministers would be convened shortly to take decisions in the matter.
The Report was again discussed in the year 1983. The then Hon'ble Minister for Home
Sri P.C. Sethi, while replying to the debate stated: "While referring to the Commission
whose report has been discussed today, I would like to remind the House that although
this Commission had been appointed by our predecessor Government, we now desire
to continue with this Commission and implement its recommendations."
The Office Memorandum dated 13th August, 1090:
21. No action was, however, taken on the basis of the Mandal Commission Report until
the issuance of the Office Memorandum on 25th September, 1991. On that day, the
then Prime Minister Sri V.P. Singh made a statement in the Parliament in which he
stated inter alia as follows:

After all, if you take the strength of the whole of the Government employees as a
proportion of the population, it will be 1% or 1-1/2. I do not know exactly, it may be less
than 1%. We are under no illusion that this 1% of the population, or a fraction of it will
resolve the economic problems of the whole section of 52%. No. We consciously want
to give them a position in the decision-making of the country, a share in the power
structure. We talk about merit. What is the merit of the system itself? That the section
which has 52% of the population gets 12.55% in Government employment. What is the
merit of the system? That in Class I employees of the Government it gets only 4.69%,
for 52% of the population in decision-making at the top echelons it is not even one-tenth
of the population of the country; in the power structure it hardly 4.69. I want to challenge
first the merit of the system itself before we come and question on the merit, whether on
merit to reject this individual or that. And we want to change the structure basically,
consiciously, with open eyes. And I know when changing the structures comes, there
will be resistance....
What I want to convey is that treating unequals as equals is the greatest injustice.
And, correction of this injustice is very important and that is what I want to convey. Here,
the National Front Government's Commitment for not only change of Government, but
also change of the social order, is something of great significance to all of us; it is a
matter of great significance. Merely making programmes of economic benefit to various
sections of the society will not do....
There is a very big force in the argument to involve the poorest in the power structure.
For a lot of time we have acted on behalf of the poor. We represent the poor....
Let us forget that the poor are begging for some crumbs. They have suffered it for
thousands of years. Now they are fighting for their honour as a human being....
A point was made by Mahajan ji that if there are different lists in different States how will
the Union List harmonise? It is so today in the case of the Scheduled Castes and the
Scheduled Tribes, That has not caused a problem. On the same pattern, this will be
there and there will be no problem.

22. The Office Memorandum dated 13th August, 1990 reads as follows:
OFFICE MEMORANDUM

Subject : Recommendations of the Second backward Classes Commission (Mandal

Report) - Reservation for Socially and Educationally Backward Classes in services
under the Government of India.

In a multiple undulating society like ours, early achievement of the objective of social
justice as enshrined in the Constitution is a must. The Second Backward Classes
Commission called the Mandal Commission was established by the then Government
with this purpose in view, which submitted its report to the Government of India on
31.12.1980.
2. Government have carefully considered the report and the recommendations of the
Commission in the present context regarding the benefits to be extended to the socially
and educationally backward classes as opined by the Commission and are of the clear
view that at the outset certain weightage has to be provided to such classes in the
services of the Union and their Public Undertakings. Accordingly orders are issued as
follows:-

(i) 27% of the vacancies in civil posts and services under the Government of India shall
be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment.
Detailed instructions relating to the procedures to be followed for enforcing reservation
will be issued separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open
competition on the same standards prescribed for the general candidates shall not be
adjusted against the reservation quota of 27%.
(iv) The SEBC would comprise in the first phase the castes and communities which are
common to both the list in the report of the Mandal Commission and the State
Governments' lists, a list of such castes/communities is being issued separately.
(v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not
apply to vacancies where the recruitment process has already been initiated prior to the
issue of these orders.

3. Similar instructions in respect of public sector undertakings and financial institutions

including public sector banks will be issued by the Department of Public Enterprises and
Ministry of Finance respectively.

sd/- 
(Smt. Krishna Singh) 
Joint Secretary to the Govt. of India
23. Soon after the issuance of the said Memorandum there was wide-spread protest in
certain Northern States against it. There occurred serious disturbance to law and order
involving damage to private and public property. Some young people lost their lives by
self-immolation. Writ Petitions were filed in this Court questioning the said Memorandum
along with applications for staying the operation of the Memorandum. It was stayed by
this Court.
The Office Memorandum dated 25th September, 1991:
24. After the change of the Government at the center following the general election held
in the first half of 1991, another Office Memorandum was issued on 25th September,
1991 modifying the earlier Memorandum dated 13th August, 1990. The later
Momorandum reads as follows:
OFFICE MEMORANDUM

Subject : Recommendations of the Second Backward Classes Commission (Mandal

Report) - Reservation for socially and Educationally Backward Classes in service under
the Government of India.
The undersigned is directed to invite the attention to O.M. of even number dated the
13th August, 1990, on the above mentioned subject and to say that in order to enable
the poorer sections of the SEBCs to receive the benefits of reservation on a preferential
basis and to provide reservation for other economically backward sections of the people
not covered by any of the existing schemes of reservation, Government have decided to
amend the said Memorandum with immediate effect as follows:-

(i) Within the 27% of the vacancies in civil posts and services under the Government of
India reserved for SEBCs, preference shall be given to candidates belonging to the
poorer sections of the SEBCs. In case sufficient number of such candidates are not
available, unfilled vacancies shall be filled by the other SEBC candidates.
(ii) 10% of the vacancies in civil posts and services under the Government of India shall
be reserved for other economically backward sections of the people who are not
covered by any of the existing schemes of reservation.
(iii) The criteria for determining the poorer sections of the SEBCs or the other
economically backward sections of the people who are not covered by any of the
existing schemes of reservations are being issued separately.

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

sd/- 
(A.K. Harit)
DY. SECRETARY TO THE GOVERNMENT OF INDIA
25. Till now, the Central Government has not evolved the economic criteria as
contemplated by the later Memorandum, though the hearing of these writ petitions was
adjourned on more than one occasion for the purpose. Some of the writ petitions have
meanwhile been amended challenging the later Memorandum as well. Let us notice at
this stage what do the two memorandums say, read together. The first provision made
is: 27% of vacancies to be filled up by direct recruitment in civil posts and services
under the Government of India are reserved for backward classes. Among the members
of the backward classes preference has to be given to candidates belonging to the
poorer sections. Only in case, sufficient number of such candidates are not available,
will the unfilled vacancies be filled by other backward class candidates. The second
provision made is: backward class candidates recruited on the basis of merit in open
competition along with general candidates shall not be adjusted against the quota of
27% reserved for them. Thirdly, it is provided that backward classes shall mean those
castes and communities which are common to the list in the report of the Mandal
Commission and the respective State Government's list. It may be remembered that
Mandal Commission has prepared the list of backward classes State-wise, Lastly, it is
provided that 10% of the vacancies shall be reserved for other economically backward
sections of the people who are not covered by any of the existing schemes of
reservations. As stated above, the criteria for determining the poorer sections among
the backward classes or for determining other economically backward sections among
the non-reserved category has so far not been evolved. Though the first Memorandum
stated that the orders made therein shall take effect from 7.8.1990, they were not in fact
acted upon on account of the orders made by this Court.
Issues for consideration:

26. These writ petitions were heard in the first instance by a Constitution Bench
presided over by the then Chief Justice Sri Ranganath Misra. After hearing them for
some them, the Constitution Bench referred them to a Special Bench of Nine Judges,
"to finally settle the legal position relating to reservations." The reason for the reference
being, "that the several Judgments of this Court have, not spoken in the same voice on
this issue and a final look by a larger Bench in our opinion should settle the law in an
authoritative way.

We have, accordingly, heard all the parties and interveners who wished to be heard in
the matter. Written submissions have been filed by almost all the parties and
intervenOrs. Together, they run into several hundreds of pages.
At the inception of arguments, counsel for both sides put their heads together and
framed eight questions arising for our discussion. They read as follows:

(1) Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the

right to reservation to posts in services under the State?
(II) What would be the content of the phrase Backward Class in Article 16(4) of the
Constitution and whether caste by itself could constitute a class and whether economic
criterion by itself could identify a class for Article 16(4) and whether backward Classes
in Article 16(4) would include the Article 46 as well?
(III) If economic criterion by itself could not constitute a Backward Classes under
Article 16(4)whether reservation of posts in services under the State based exclusively
on economic criteria would be covered by Article 16(1) of the Constitution?
(IV) Can the extent of reservation to posts in the services under the State under
Article 16(4) or, if permitted under Articles 16(1) and 16(4) together, exceed 50% of the
posts in a cadre or Service under the State or exceed 50% of the appointment in a
cadre or Service in any particular year and can such extent of reservation be
determined without determining the inadequacy of representation of each class in the
different categories and grades of Services under the State?
(V) Does Article 16(4) permit the classification of 'Backward Classes' into Backward
Classes and Most Backward Classes or permit Classification among them based on
economic or other considerations?
(VI) Would making "any provision" under Article 16(4) for reservation "by the State"
necessarily have to be by law made by the Legislatures of the State or by law made by
Parliament? Or could such provisions be made by an executive order?
(VII) Will the extent of judicial review be limited or restricted in regard to the
identification of Backward Classes and the percentage of reservations made for such
classes, to a demonstrably perverse identification or a demonstrably unreasonable
percentage?
(VIII) Would reservation of appointments or posts "in favour of any Backward Class" be
restricted to the initial appointment to the post or would it extend to promotions as well?

For the sake of convenient discussion and in the interest of clarity, we found it
necessary to elaborate them. Accordingly, we have re-framed the questions. We shall
proceed to answer them in the same order. The reframed questions are:

1(a) Whether the 'provision' contemplated by Article 16(4) must necessarily be made by

the legislative wing of the State?
(b) If the answer to Clause (a) is in the negative, whether an executive order making
such a provision is enforceable without incorporating it into a rule made under the
proviso to Article 309?
2(a) Whether Clause (4) of Article 16 is an exception to Clause (1) of Article 16?
(b) Whether Clause (4) of Article 16 is exhaustive of the special provisions that can be
made in favour of 'backward class of citizens'? Whether it is exhaustive of the special
provisions that can be made in favour of all sections, classes or groups?
(c) Whether reservations can be made under Clause (1) of Article 16 or whether it
permits only extending of preferences/concessions?
3(a) What does the expression 'backward class of citizens' in Article 16(4) means?
(b) Whether backward classes can be identified on the basis and with reference to caste
alone?
(c) Whether a class, to be designated as a backward class, should be situated similarly
to the S.Cs./S.Ts.?
(d) Whether the 'means' test can be applied in the course of identification of backward
classes? And if the answer is yes, whether providing such a test is obligatory?
4(a). Whether the backward classes can be identified only and exclusively with
reference to economic criteria?
(b) Whether a criteria like occupation-cum-income without reference to caste altogether,
can be evolved for identifying the backward classes?
5. Whether the backward classes can be further categorised into backward and more
backward categories?
6. To what extent can the reservation be made?

(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or
rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under Clause (4) of
Article 16 or whether it takes in all types of reservations that can be provided under
Article 16?
(c) Further while applying 50% rule, if any, whether an year should be taken as a unit or
whether the total strength of the cadre should be looked to?
(d) Whether Devadasan was correctly decided?

7. Whether Article 16 permits reservations being provided in the matter of promotions?

8. Whether reservations are anti-meritian? To what extent are
Articles 335, 38(2) and 46 of the Constitution relevant in the matter of construing
Article 16?
9. Whether the extent of judicial review is restricted with regard to the identification of
Backward Classes and the percentage of reservations made for such classes to a
demonstrably perverse identification or a demonstrably unreasonable percentage?
10. Whether the distinction made in the Memorandum between 'poorer sections' of the
backward classes and others permissible under Article 16?
11. Whether the reservation of 10% of the posts in favour of 'other economically
backward sections of the people who are not covered by any of the existing schemes of
the reservations' made by the Office Memorandum dated 25.9.1991 permissible under
Article 16?

26A. Before we proceed to deal with the question, we may be permitted to make a few
observations: The questions arising herein are not only of great moment and
consequence, they are also extremely delicate and sensitive. They represent complex
problems of Indian Society, wrapped and presented to us as constitutional and legal
questions. On some of these questions, the decisions of this Court have not been
uniform. They speak with more than one voice. Several opposing points of view have
been pressed upon us with equal force and passion and quite often with great emotion.
We recognize that these view-points are held genuinely by the respective exponents.
Each of them feels his own point of view is the only right one. We cannot, however,
agree with all of them. We have to find and we have tried our best to find - answers
which according to us are the right ones constitutionally and legally. Though, we are
sitting in a larger Bench, we have kept in mind the relevance and significance of the
principle of Stare, decisis. We are conscious of the fact that in law certainty, consistency
and continuity are highly desirable features. Where a decision has stood the test of time
and has never been doubted, we have respected it unless, of course, there are
compelling and strong reasons to depart from it. Where, however, such uniformity is not
found, we have tried to answer the question on principle keeping in mind the scheme
and goal of our Constitution and the material placed before us.
There are occasions when the obvious needs to be stated and, we think, this is one
such occasion. We are dealing with complex social, constitutional and legal questions
upon which there has been a sharp division of opinion in the Society, which could have
been settled more satisfactorily through political processes. But that was not to be. The
issues have been relegated to the judiciary - Which shows both the disinclination of the
executive to grapple with these sensitive issues as also the confidence reposed in this
organ of the State. We are reminded of what Sir Anthony Mason, Chief Justice of
Australia once said:

Society exhibits more signs of conflict and disagreement today than it did before....
Governments have always had the option of leaving questions to be determined by the
courts according to law....
There are other reasons, of course - that cause governments to leave decisions to be
made by Courts. They are of expedient political character. The community may be so
divided on a particular issue that a government feels that the safe course for it to pursue
is to leave the issue to be resolved by the Courts, thereby diminishing the risk it will
alienate significant sections of the Community.

But then answering a question as to the legitimacy of the Court to decide such crucial
issues, the learned Chief Justice says:

....my own feeling is that the people accept the Courts as the appropriate means of
resolving disputes when governments decide not to attempt to solve the disputes by the
political process.
(Judging the World: Law and Politics in the Worlds Leading Courts - page 343)

We hope and trust that our people too are mature enough to appreciate our endeavour
in the same spirit. They may well remember that "the law is not an abstract concept
removed from the society it serves, and that Judges, as safe-guarders of the
Constitution, must constantly strive to narrow the gap between the ideal of equal justice
and the reality of social inequality."
PART - II
Before we proceed to answer the questions aforementioned, it would be helpful to
notice (a) the debates in the Constituent Assembly on Article 16 (draft Article 10); (b)
the decisions of this Court on Articles 16 and 15; and (c) a few decisions of the
U.S.Supreme Court considering the validity of race-conscious programmes.
The Framing of Article 16: Debates in the Constituent Assembly

25. Draft Article 10 corresponds to Article 16. The debate in the Constituent Assembly

on draft Article 10 and particularly Clause (3), thereof [corresponding to Clause (4) of
Article 16] helps us to appreciate the background and understand the objective
underlying Article 16, and in particular, Clause (4) thereof. The original intent comes out
clear and loud from these debates.
Omitting draft Clause (4) [which corresponds to Clause (5) of Article 16] the three
clauses in draft Article 10, as introduced in the Constituent Assembly, read as follows:

10(1). There shall be equality of opportunity for all citizens in matters of employment
under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth
or any of them by ineligible for any office under the State.
(3) Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favour of any class of citizens who in the opinion
of the State are not adequately represented in the services under the State.

It was the Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar that
inserted the word "backward" in between the words "in favour of any" and 'class of
citizens". The discussion on draft Article 10 took place on November 30, 1948. Several
members including S/Sri Damodar Swarup Seth, Pt. Hirdya Nath Kunzru and R.M.
Nalavade complained that the expressions 'backward' and 'backward classes' are quite
vague and are likely to lead to complications in future. They suggested that
appointments to public services should be made purely on the basis of merit. Some
others suggested that such reservations should be available only for a period of first ten
years of the Coustitution. To this criticism the Vice-President of the Assembly (Dr.
H.C.Mookherjee) replied in the following words:

Before we start the general discussion, i would like to place a particular matter before
the Honourable Members. The clause which has so long been under discussion affects
particularly certain sections of our population sections which have in the past been
treated very cruelly and although we are today prepared to make reparation for the evil
deeds of our ancestors, still the old story continues, at least here and there, and capital
is made out of it outside India.... I would therefore very much appreciate the permission
of the House so that I might give full discussion on this particular matter to our brethren
of the backward classes. Do I have that permission?

26. In the ensuing discussion Sri Chandrika Ram (Bihar-General) supported draft
Clause (3) with great passion. He pleaded for reservations in favour of Backward
Classes both in services as well as in the legislature, just as in the case of Harijans.
Sri Chandrika Ram was supported by another Member Sri P.Kakkan (Madras-General)
and Sri T.Channiah (Mysore), Sri Channiah, in particular, commented upon the
Members coming from Northern India being puzzled about the meaning of the
expression 'backward class' and proceeded to clarify the same in the following words:-
The backward classes of people as understood in South India, are those classes of
people who are educationally backward, it is those classes that require adequate
representation in the services. There are other classes of people who are socially
backward; they also require adequate representation in the service.

27. After the discussion proceeded for some more time, Sri K.M.Munshi, who was a
Member of the Drafting Committee rose to explain the content of the word 'backward'.
He said:-

What we want to secure by this clause are two things. In the fundamental right in the
first clause we want to achieve the highest efficiency in the services of the State-highest
efficiency which would enable the services to function effectively and promptly. At the
same time, in view of the conditions in our country prevailing in several provinces, we
want to see that backward classes, classes who are really backward, should be given
scope in the State services; for it is realised that State services give a status and an
opportunity to serve the country, and this opportunity should be extended to every
community, even among the backward people. That being so, we have to find out some
generic term and the word "backward class" was the best possible term.

Sri Munshi proceeded to state:

I may point out that in the province of Bombay for several years now, there has been a
definition of backward classes, which includes not only Scheduled Castes and
Scheduled Tribes but also other backward classes who are economically, educationally
and socially backward. We need not, therefore, define or restrict the scope of the word
"backward" to a particular community. Whoever is backward will be covered by it and I
think the apprehensions of the Honourable Members are not justified.

Ultimately Dr. B.R.Ambedkar, the Chairman of the Drafting Committee, got up to clarify
the matter. His speech, which put an end to all discussion and led to adopting of draft
Article 10(3), is worth quoting in extenso, since it throws light on several questions
relevant herein:

...there are three points of view which it is necessary for us to reconcile if we are to
produce a workable proposition which will be accepted by all. Of the three points of
view, the first is that there shall be equality of opportunity for all citizens. It is the desire
of many Members of this House that every individual who is qualified for a particular
post should be free to apply for that post, to sit for examinations and to have his
qualifications tested so as to determine whether he is fit for the post or not and that
there ought to be no limitations, there ought to be no hindrance in the operation of this
principle of equality or opportunity. Another view mostly shared by a section of the
House is that, if this principle is to be operative-and it ought to be operative in their
judgment to its fullest extent-there ought to be no reservations of any sort for any class
or community at all, that all citizens, if they are qualified, should be placed on the same
footing of equality so far as the public services are concerned. That is the second point
of view we have. Then we have quite a massive opinion which insists that, although
theoretically it is good to have the principle that there shall be equality of opportunity,
there must at the same time be a provision made for the entry of certain communities
which have so far been outside the administration. As I said, the Drafting Committee
had to produce a formula which would reconcile these three points of view, firstly, that
there shall be equality of opportunity, secondly that there shall be reservations in favour
of certain communities which have not so far had a 'proper look-in' so to say into the
administration. If honourable Members will bear these facts in mind-the-three principles
we had to reconcile,-they will see that no better formula could be produced than the one
that is embodies in Sub-clause (3) of Article 10 of the Constitution. It is a generic
principle. At the same time, as I said, we had to reconcile this formula with the demand
made by certain communities that the administration which has now-for historical
reasons-been controlled by one community or a few communites, that situation should
disappear and that the others also must have an opportunity of getting into the public
services. Supposing, for instance, we were to concede in full the demand of those
communities who have not been so far employed in the public service to the fullest
extent, what would really happen is, we shall be completely destroying the first
proposition upon which we are all agreed, namely, that there shall be an equality of
opportunity. Let me give an illustration. Supposing, for instance, reservations were
made for a community or a collection of communities, the total of which came to
something like 70 per cent of the total posts under the State and only 30 per cent are
retained as the unreserved. Could anybody say that the reservation of 30 per cent as
open to general competition would be satisfactory from the point of view of giving effect
to the first principle, namely, that there shall be equality of opportunity? It cannot be in
my judgment. Therefore the seats to be reserved, if the reservation is to be consistent
with Sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only
that the first principle could find its place in the Constitution and effective in operation. If
honourable Members understand this position that we have to safeguard two things,
namely, the principle of equality of opportunity and at the same time satisfy the demand
of communities which have not had so far representation in the State, then, I am sure
they will agree that unless you use some such qualifying phrase as "backward" the
exception made in favour of reservation will ultimately eat up the rule altogether.
Nothing of the rule will remain. That I think if I may say so, is the justification why the
Drafting Committee undertook on its own shoulders the responsibility of introducing the
word "backward" which, I admit, did not originally find a place in the fundamental right in
the way in which it was passed by this Assembly....
Somebody asked me: "What is a backward community"? Well, I think any one who
reads the language of the draft itself will find that we have left it to be determined by
each local Government. A backward community is a community which is backward in
the opinion of the Government.

The above material makes it amply clear that the objective behind Clause (4) of
Article 16 was the sharing of State power. The State power which was almost
exclusively monopolised by the upper castes i.e., a few communities, was now sought
to be made broad-based. The backward communities who were till then kept out of
apparatus of power, were sought to be inducted there into and since that was not
practicable in the normal course, a special provision was made to effectuate the said
objective. In short, the objective behind Article 16(4)is empowerment of the deprived
backward communities - to give them a share in the administrative apparatus and in the
governance of the community.
Decisions of this Court on Articles 16 and 15:
28. Soon after the enforcement of the Constitution two cases reached this Court from
the State of Madras - one under Article 15 and the other under Article 16. Both the
cases were decided on the same date and by the same Bench. The one arising under
Article 15 is State of Madras v. Champakam Dorairajan MANU/SC/0007/1951 :
[1951]2SCR525 , and the other arising under Article 16 is Venkataraman v. State of
Madras A.I.R. 1951 S.C. 229 . By virtue of certain orders issued prior to coming into
force of the Constitution,-popularly known as 'Communal G.O.' - seats in the Medical
and Engineering Colleges in the State of Madras were apportioned in the following
manner: Non-Brahmin (Hindus)-6, Backward Hindus-2, Brahmin-2, Harijan-2, Anglo
Indians and Indian Christians-1, Muslims-1. Even after the advent of the Constitution,
the G.O. was being acted upon which was challenged by Smt. Champakam as violative
of the fundamental rights guranteed to her by Articles 15(1) and 29(2) of the
Constitution of India. A Full Bench of Madras High Court declared the said G.O. as void
and un-enforceable with the advent of the Constitution. The State of Madras brought the
matter in appeal to this Court. A Special Bench of Seven Judges heard the matter and
came to the unanimous conclusion that the allocation of seats in the manner aforesaid
is violative of Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent
(writ petitioner) notwithstanding her higher marks, was based only on the ground of
caste. The State of Madras sought to sustain the G.O. with reference to Article 46 of the
Constitution. Indeed the argument was that Article 46 over-rides Article 29(2). This
argument was rejected. The Court pointed out that while in the case of employment
under the State, Clause (4) of Article 16 provides for reservations in favour of backward
class of citizens, no such provision was made in Article 15.
29. In the matter of appointment to public services too, a similar communal G.O. was in
force in the State of Madras since prior to the Constitution. In December, 1949, the
Madras Public Service Commission invited applications for 83 posts of District Munsifs,
specifying at the same time that the selection of the candidates would be made from the
various castes, religions and communities as specified in the communal G.C. The 83
vacancies were distributed in the following manner: Harijans-19, Muslims-5, Christians-
6, Backward Hindus-10, Non-Brahmin (Hindus)-32 and Brahmins-11. The petitioner
Venkataraman (it was a petition under Article 32 of the Constitution) applied for and
appeared at the interview and the admitted position was that if the provisions of the
communal G.O. were to be disregarded, he would have been selected. Because of the
CO., he was not selected (he belonged to Brahmin community). Whereupon he
approached this Court. S.R.Das, J. speaking for the Special Bench referred to
Article 16 and in particular to Clause (4) thereof and observed: "Reservation of posts in
favour of any backward class of citizens cannot, therefore, be regarded as
unconstitutional". He proceeded to hold:

The Communal G.O. itself makes an express reservation of seats for Harijans &
Backward Hindus. The other categories, namely, Muslims, Christians, Non-Brahmin
Hindus & Brahmins must be taken to have been treated as other than Harijans &
Backward Hindus. Our attention was drawn to a schedule of Backward Classes set out
in Schedule III to Part I of the Madras Provincial & Subordinate Service Rules. It was,
therefore, argued that Backward Hindus would mean Hindus of any of the communities
mentioned in that Schedule. It is, in the circumstances, impossible to say that classes of
people other than Harijans & Backward Hindus can be called Backward Classes. As
regards the posts reserved for Harijans & Backward Hindus it may be said that the
petitioner who does not belong to those two classes is regarded as ineligible for those
reserved posts not on the ground of religion, race, caste etc. but because of the
necessity for making a provision for reservation of such posts in favour of a backward
class of citizens, but the ineligibility of the petitioner for any of the posts reserved for
communities other than Harijans and Backward Hindus cannot but be regarded as
founded on the ground only of his being a Brahmin. For instance, the petitioner may be
far better qualified than a Muslim or a Christian or a Non-Brahmin candidate & if all the
posts reserved for those communities were open to him he would be eligible for
appointment, as is conceded by the learned Advocate General of Madras, but,
nevertheless, he cannot expect to get any of those posts reserved for those different
categories only because he happens to be a Brahmin. His ineligibility for any of the
posts reserved for the other communities, although he may have far better qualifications
than those possessed by members falling within those categories, is brought about only
because he is a Brahmin & does not belong to any of those categories. This ineligibility
created by the Communal G.O. does not appear to us to be sanctioned by Clause (4) of
Article 16 and it is an infringement of the fundamental right guaranteed to the petnr. as
an individual citizen under Article 16(1) & (2). The Communal G.O., in our opinion, is
repugnant to the provisions of Article 16 & is as such void and illegal.

30. Sri Ram Jethmalani, the learned Counsel appearing for the Respondent-State of
Bihar placed strong reliance on the above passage. He placed before us an extract of
the Schedule of the backward classes appended to the Madras Provincial and
Subordinate Service Rules, 1942. He pointed out that Clause (3)(a) in Rule 2 defined
the expression backward classes to mean "the communities mentioned in Schedule III
to this part", and that Schedule III is exclusively based upon caste. The Schedule
describes the communities mentioned therein under the heading 'Race, Tribe or Caste'.
It is pointed out that when the said Schedule was substituted in 1947, the basis of
classification still remained the caste, though the heading "Races, Tribes and Castes"
was removed. Mr. Jethmalani points out that the Special Bench took note of the fact that
Schedule III was nothing but a collection of certain 'communities', notified as backward
classes and yet upheld the reservation in their favour. According to him, the decision in
Venkataraman clearly supports the identification of backward classes on the basis of
caste. The Communal G.O. was struck down, he submits, only in so far as it
apportioned the remaining vacancies between sections other than Harijans and
backward classes. It is rather curious, says the counsel, that the decision in
Venkataraman has not attracted the importance it deserves all these years; All the
subsequent decisions of this Court refer to Champakam. Hardly any decision refers to
Venkataraman notwithstanding the fact that Venkataraman was a decision rendered
with reference to Article16.
31. Soon after the said two decisions were rendered the Parliament intervened and in
exercise of its constituent power, amended Article 15 by inserting Clause (4), which
reads:

Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making
any special provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

It is worthy of notice that the Parliament, which enacted the first Amendment to the
Constitution, was in fact the very same Constituent Assembly which had framed the
Constitution. The speech of Dr. Ambedkar on the occasion is again instructive. He said:-

Then with regard to Article 16, Clause (4), my submission is this that it is really
impossible to make any reservation which would not result in excluding somebody who
has a caste. I think it has to be borne in mind and it is one of the fundamental principles
which I believe is stated in Mulla's edition on the very first page that there is no Hindu
who has not a caste. Every Hindu has a caste-he is either a Brahmin or a Mahratta or a
Kundby or a Kumbhar or a carpenter. There is no Hindu-that is the fundamental
proposition-who has not a caste. Consequently, if you make a reservation in favour of
what are called backward classes which are nothing else but a collection of certain
castes, those who are excluded are persons who belong to certain castes. Therefore, in
the circumstances of this country, it is impossible to avoid reservation without excluding
some people who have got a caste.

After the enactment of the First Amendment the first case that came up before this
Court is Balaji v. The State of Mysore. (In the year 1961, this Court decided the General
Manager, Southern Railway v. Rasngachari, but that related to reservations in favour of
the Scheduled Castes and Scheduled Tribes in the matter of promotion in the Railways.
Rangachari will be referred to at an appropriate stage later.) In the State of Karnataka,
reservations were in force since a few decades prior to the advent of the Constitution
and were being continued even thereafter. On July 26, 1958 the State of Mysore issued
an order under Article 15(4) of the Constitution declaring all the communities excepting
the Brahmin community as socially and educationally backward and reserving a total of
75 per cent seats in Educational Institutions in favour of SEBCs and SCs/STs. Such
orders were being issued every year, with minor variation in the percentage of
reservations. On 13th of July, 1972, a similar order was issued wherein 68 per cent of
the seats in all Engineering and Medical Colleges and Technical Institutions in the State
were reserved in the favour of the SEBCs, SCs and STs. SEBCs were again divided
into two categories-backward classes and more backward classes. The validity of this
order was questioned under Article 32 of the Constitution. While striking down the said
order this Court enunciated the following principles:-

(1) Clause (4) of Article 15 is a proviso or an exception to Clause (1) of Article 15 and to

Clause (2) of Article 29;
(2) For the purpose of Article 15(4), backwardness must be both social and educational.
Though caste in relation to Hindus may be a relevant factor to consider, in determining
the social backwardness of a class of citizens, it cannot be made the sole and dominant
test. Christians, Jains and Muslims do not believe in caste system; the test of caste
cannot be applied to them. Inasmuch as identification of all backward classes under the
impugned order has been made solely on the basis of caste, it is bad.
(3) The reservation made under Clause (4) of Article 15 should be reasonable. It should
not be such as to defeat or nullify the main Rule of equality contained in Clause (1).
While it is not possible to predicate the exact permissible percentage of reservations, it
can be stated in a general and broad way that they should be less than 50 per cent.
(4) A provision under Article 15(4) need not be in the form of legislation; it can be made
by an executive order.
(5) The further categorisation of backward classes into backward and more backward is
not warranted by Article 15(4).

It must be remembered that Balaji was a decision rendered under and with reference to
Article 15 though it contains certain observations with respect to Article 16 as well.
33. Soon after the decision in Balaji this Court was confronted with a case arising under
Article 16 - Devadasan v. Union of India. This was also a petition under Article 32 of the
Constitution. It related to the validity of the 'carry-forward' rule obtaining in Central
Secretariat Service. The reservation in favour of Scheduled Castes was twelve and half
per cent while the reservation in favour of Scheduled Tribes was five per cent. The
'carry-forward' rule considered in the said decision was in the following terms: "If a
sufficient number of candidates considered suitable by the recruiting authorities, are not
available from the communities for whom reservations are made in a particular year, the
unfilled vacancies should be treated as unreserved and filled by the best available
candidates. The number of reserved vacancies, thus, treated as unreserved will be
added as an additional quota to the number that would be reserved in the following year
in the normal course; and to the extent to which approved candidates are not available
in that year against this additional quotas, a corresponding addition should be made to
the number of reserved vacancies in the second following year." Because sufficient
number of SC/ST candidates were not available during the earlier years the unfilled
vacancies meant for them were carried forward as contemplated by the said rule and
filled up in the third year - that is in the year 1961. Out of 45 appointments made, 29
went to Scheduled Castes and Scheduled Tribes. In other words, the extent of
reservation in the third year came to 65 per cent. The rule was declared unconstitutional
by the Constitution Bench, with Subba Rao, J. dissenting. The majority held that the
carry forward rule which resulted in more than 50 per cent of the vacancies being
reserved in a particular year, is bad. The principle enunciated in Balaji regarding 50
percent was followed. Subba Rao, J. in his dissenting opinion, however, upheld the said
rule. The learned Judge observed: "The expression, "nothing in this article" is a
legislative device to express its intention in a most emphatic way that the power
conferred thereunder is not limited in any way by the main provision but falls outside it.
It has not really carved out an exception, but has preserved a power untrammelled by
the other provisions of the Article." The learned Judge opined that once a class is a
backward class, the question whether it is adequately represented or not is left to the
subjective satisfaction of the State and is not a matter for this Court to prescribe.
We must, at this stage, clarify that a 'carry-forward' rule may be in a form different than
the one considered in Devadasan. The Rule may provide that the vacancies reserved
for Scheduled Castes or Scheduled Tribes shall not be filled up by general (open
competition) candidates in case of non-availability of SC/ST candidates and that such
vacancies shall be carried forward.
34. In the year 1964 another case from Mysore arose, again under Article 15 -
Chitralekha v. State of Mysore. The Mysore Government had by an order defined
backward classes on the basis of occupation and income, unrelated to caste. Thirty per
cent of seats in professional and technical institutions were reserved for them in addition
to eighteen per cent in favour of SCs and STs. One of the arguments urged was that the
identification done without taking the caste into consideration is impermissible. The
majority speaking through Subba Rao, J., held the identification or classification of
backward classes on the basis of occupation-cum-income, without reference to caste, is
not bad and does not offend Article 15(4).
35. During the years 1968 to 1971, this Court had to consider the validity of
identification of backward classes made by Madras and Andhra Pradesh Governments.
Minor P.Rajendran v. State of Madras related to specification of socially and
educationally backward classes with reference to castes. The question was whether
such an identification infringes Article 15. Wanchoo, CJ., speaking for the Constitution
Bench dealt with the contention in the following words:

The contention is that the list of socially and educationally backward classes for whom
reservation is made under Rule 5 nothing but a list of certain castes. Therefrore,
reservation in favour of certain castes based only on caste considerations violates
Article 15(1), which prohibits discrimination on the ground of caste only. Now 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 mean that caste was the sole consideration and that person
belonging to these castes are also not a class of socially and educationally backward
citizens.... As it was found that members of these castes as a whole were educationally
and socially backward, the list which had been coming on from as far back as 1906 was
finally adopted for purposes of Article 15(4)
In view however of the explanation given by the State of Madras, which has not been
controverted by and rejoinder, it must be accepted that though the list shows certain
castes, the members of those castes are really classes of educationally and socially
backward citizens. No attempt was made on behalf of the petitioners/appellant to show
that any caste mentioned in this list was not educationally and socially backward. In this
state of the pleadings, we must come to the conclusion that though the list is prepared
caste-wise, the castes included therein are as a whole educationally and socially
backward and therefore the list is not violative of Article 15. The challenge to Rule 5
must therefore fail.
36. The shift in approach and emphasis is obvious. The Court now held that a caste is a
class of citizens and that if a 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). More over
the burden of proving that the specification/identification was bad, was placed upon the
petitioners. In case of failure to discharge that burden, the identification made by the
State was upheld. The identification made on the basis of caste was upheld inasmuch
as the petitioner failed to prove that any caste mentioned in the list was not socially and
educationally backward.
37. Another Constitution Bench took a similar view in Triloki Nath [1969] 1 S.C.R. 103 .
Rajendran was expressly referred to and followed in Peeriakaruppun v. State of Tamil
Nadu, a decision rendered by a Bench of three Judges (J.C.Shah, K.S.Hegde and
A.N.Grover, JJ.). This was a Petition under Article 32 of the Constitution and one arising
under Article 15. The argument was that identification of SEBCs having been done on
the basis of caste alone is bad. Repelling the argument, Hegde, J. held:-

There is no gainsaying the fact that there are numerous castes in this country which are
socially and educationally backward. To ignore their existence is to ignore the facts of
life. Hence, we are unable to uphold the contention that impugned reservation is not in
accordance with Article 15(4).

38. Again, in State of Andhra Pradesh v. Balram, a case arising from Andhra Pradesh, a
Division Bench (Vaidyalingam and Mathew,JJ.) adopted the same approach and upheld
the identification made by Andhra Pradesh Government on the basis of caste.
Answering the criticism that the Backward Classes Commission appointed by the State
Government did not do a scientific and thorough job, the Bench observed:

In our opinion, the Commission has taken considerable pains to collect as much
relevant material as possible to judge the social and educational backwardness of the
persons concerned. When, for instance, it had called for information regarding the
student population in classes X and XI from nearly 2224 institutions, if only 50% of the
institutions sent replies, it is not the fault of the Commission for they could not get more
particulars. If the commission has only to go on doing the work of collecting particulars
and materials, it will be a never ending matter. In spite of best efforts that any
commission may make in collecting materials and datas, its conclusions cannot be
always scientifically accurate in such matters. Therefore, the proper approach, in our
opinion should be to see whether the relevant data and materials referred to in the
report of the Commission justify its conclusions. In our opinon, there was sufficient
material to enable the Commission to be satisfied that the persons included in the list
are really socially and educationally bakcward. No doubt there are few instances where
the educational average is slightly above the State average, but that circumstances by
itself is not enough to strike down the entire list. Even assuming there are few
categories which are little above the State average, in literacy, that is a matter for the
State to take note of and review the position of such categories of persons and take a
suitable decision.
We respectfully agree with these observations.
Answering the main criticism that the list of SEBCs was wholly based upon caste, the
Bench observed:-

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. Even on the assumption
that the list is based exclusively on caste, it is clear from the materials before the
Commission and the reasons given by it in its report that the entire caste is socially and
educationally backward and therefore their inclusion in the list of Backward Classes is
warranted by Article 15(4). The groups mentioned therein have been included in the list
of Backward classes as they satisfy the various tests, which have been laid down by
this Court for ascertaining the social and educational backwardness of a class.

39. In certain cases including Janaki Prasad Parimoo v. State of Jammu & Kashmir
MANU/SC/0393/1973 : [1973]3SCR236 and State of Uttar Pardesh v. Pradip Tandon
MANU/SC/0086/1974 : [1975]2SCR761 , it was held that poverty alone cannot be the
basis for determining or identifying the social and educational backwardness. It was
emphasised that Article 15(4) - or for that matter Article 16(4) - is not an instance of
poverty alleviation programme. They were directed mainly towards removal of social
and educational bachwardness, it was pointed out. In Pradip Tandon, a decision under
Article 15(4), Ray,C.J. speaking for the Division Bench of three Judges opined:

Broadly stated, neither caste nor race nor religion can be made the basis of
classification for the purposes of determining social and educational backwardness
within the meaning of Article 15(4). When Article 15(1) forbids discrimination on grounds
only of religion, race, caste, caste cannot be made one of the criteria for determining
social and educational backwardness. If caste or religion is recognised as a criterion of
social and educational backwardness Article 15(4) will stultify Article 15(1). It is true that
Article 15(1) forbids discrimination only on the ground of religion, race, caste but when a
classification taken recourse to caste as one of the criteria in determining socially and
educationally backward classes the expression "classes" in that case violates the rule of
expressio unions est exclusio alterius. The socially and educationally backward classes
of citizens are groups other than groups based on caste.

This statement was made without referring to the dicta in Rajendran, a decision of a
larger Bench. Though Balaji was referred to, we must point out with respect that Balaji
does not support the above statement. Balaji indeed said 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."
40. Thomas marks the beginning of a new thinking on Article 16, though the seed of this
thought is to be found in the dissenting opinion of Subba Rao,J. in Devadasan. The
Kerala Government had, by amending Kerala State and Subordinate Service Rules
empowered the Government to exempt, by order, for a specified period, any member or
members belonging to Scheduled Castes or Scheduled Tribes and already in service,
from passing the test which an employee had to pass as a precondition for promotion to
next higher post. Exercising the said power, the Government of Kerala issued a
notification granting "temporary exemption to members already in service belonging to
any of the Scheduled Castes or Scheduled Tribes from passing all tests (unified, special
or departmental test) for a period of two years". On the basis of the said exemption, a
large number of employees belonging to Scheduled Castes and Scheduled Tribes, who
had been stagnating in their respective posts for want of passing the departmental tests,
were promoted. They were now required to pass the tests within the period of
exemption. Out of 51 vacancies which arose in the category of Upper Division Clerks in
the year 1972, 34 were filled up by members of Scheduled Castes leaving only 17 for
others. This was questioned by Thomas, a member belonging to non-reserved
category. His grievance was: but for the said concession/exemption given to members
of Scheduled Castes/Scheduled Tribes he would have been promoted to one of those
posts in view of his passing the relevant tests. He contended that Article 16(4)permits
only reservations in favour of backward classes but not such an exemption. This
argument was accepted by the Kerala High Court. It also upheld the further contention
that inasmuch as more than 50% vacancies in the year had gone to the members of
Scheduled Castes as a result of the said exemption, it is bed for violating the 50% rule
in Balaji. The Stats of Kerala carried the matter in appeal to this Court which was
allowed by a majority of 5:2. All the Seven Judges wrote separate opinions. The head-
note to the decision in Supreme Court Reports succinctly sets out the principles
enunciated in each of the judgments. We do not wish to burden this judgment by
reproducing them here. We would rest content with delineating the broad features
emerging from these opinions. Ray, CJ. held that Article 16(1), being a facet of
Article 14, permits reasonable classification. Article 16(4) clarifies and explains that
classification on the basis of backwardness. Classification of Scheduled Castes does
not fall within the mischief of Article 16(2) since Scheduled Castes historically
oppressed and backward, are not castes. The concession granted to them is
permissible under and legitimate for the purposes of Article 16(1). The rule giving
preference to an un-represented or under-represented backward community does not
contravene Articles 14, 16(1) or 16(2). Any doubt on this score is removed by
Article 16(4). He opined further that for determining whether a reservation is excessive
or not one must have to look to the total number of posts in a given unit or department,
as the case may be. Mathew, J. agreed that Article 16(4) is not an exception to
Article 16(1), that. Article 16(1) permits reasonable classification and that Scheduled
Castes are not 'castes' within the meaning of Article 16(2). He espoused the theory of
'proportional equality' evolved in certain American decisions. He does not refer to the
decisions in Balaji or Devadasan in his opinion nor does he express any opinion the
extent of permissible reservation. Beg, J. adopted a different reasoning. According to
him, the rule and the orders issued thereunder was "a kind of reservation" falling under
Article 16(4) itself. Krishna Iyer,J. was also of the opinion that Article 16(1) being a facet
of Article 16 permits reasonable classification, that Article 16(4) is not an exception but
an emphatic statement of what is inherent in Article 16(1) and further that Scheduled
Castes are not 'castes' within the meaning of Article 16(2) but a collection of castes,
races and groups. Article 16(4) is one made of reconciling the claims of backward
people and the opportunity for free competition the forward sections are ordinarily
entitled to, held the learned Judge. He approved the dissenting opinion of Subba Rao,J.
in Devadasan. Fazal Ali, J. too adopted a similar approach. The learned Judge pointed
out "if we read Article 16(4) as an exception to Article 16(1) then the inescapable
conclusion would be that Article 16(1) does not permit any classification at all because
an express provision has been made for this in Clause (4). This, however, is contrary to
the basic concept of equality contained in Article 14 which implicitly permits
classification in any form provided certain conditions are fulfilled. Furthermore, if no
classification can be made under Article 16(1) except reservation contained in Clause
(4) then the mandate contained in Article 335 would be defeated." He held that the Rule
and the orders impugned are referable to and sustainable under Article 16. The learned
Judge went further and held that the rule of 50% evolved in Balaji is a mere rule of
caution and was not meant to be exhaustive of all categories. He expressed the opinion
that the extent of reservation depends upon the proportion of the backward classes to
the total population and their representation in public services. He expressed a doubt as
to the correctness of the majority view in Devadasan. Among the minority Khanna, J.
preferred the view taken in Balaji and other cases to the effect that Article 16(4) is an
exception to Article 16(1). He opined that no preference can be provided in favour of
backward classes outside Clause (4). A.C.Gupta, J. concurred with this view.
41. The last decision of this Court on this subject is in K.C.Vasant Kumar and Anr. v.
State of Karnataka [1985] Suppl. 1 S.C.R. 352 . The Five Judges constituting the Bench
wrote separate opinions, each treading a path of his own. Chandrachud, C.J. opined
that the present reservations should continue for a further period of 15 years making a
total of 50 years from the date of commencement of the Constitution. He added that the
means test must be applied to ensure that the benefit of reservations actually reaches
the deserving sections. Desai, J. was of the opinion that the only basis upon which
backward classes should be identified is the economic one and that a time has come to
discard all other bases. Chinnappa Raddy, J. was of the; view that identification of
backward classes on the basis of caste cannot be taken exception to for the reason that
in the Indian context caste is a class. Caste, the learned Judge said, is the primary
index of social backwardness, so that social backwardness is often readily identificable
with reference to a person's caste. It it is found in the case of a given caste that a few
members have progressed far enough so as to compare favourably with the forward
classes in social, economic and educational fields, an upper income ceiling can perhaps
be prescribed to ensure that the benefit of reservation reaches the really deserving. He
opined that identification of SEBCs in the Indian milieu is a difficult and complex
exercise, which does not admit of any rigid or universal tests. It is not a matter for the
courts. The "backward class of citizens", he held, are the very same SEBCs referred to
in Article 15(4). The learned Judge condemned the argument that reservations are likely
to lead to deterioration in efficiency or that they are anti-merit. He disagreed with the
view that for being identified as SEBCs, the relevant groups should be comparable to
SCs/STs in social and educational backwardness. The learned Judge agreed with the
opinion of Fazal Ali, J. in Thomas that the rule of 50% in Balaji is a rule of caution and
not an inflexible rule. At any rate, he said, it is not for the court to lay down any such
hard and fast rule. A.P.Sen, J. was of the opinion that the predominant and only factor
for making special provision under Article 15(4) or 16(4) should be poverty and that
caste should be used only for the purpose of identification of groups comparable to
Scheduled Castes/Scheduled Tribes. The reservation should continue only till such time
as the backward classes attain a state of enlightenment. Venkataramiah, J. agreed with
Chinnappa Reddy,J. that identification of backward classes can be made on the basis of
caste. He cited the Constituent Assembly and Parliamentary debates in support of this
view. According to the learned Judge, equality of opportunity revolves around two
dominant principles viz., (i) the traditional value of equality of opportunity and (ii) the
newly appreciated - though not newly conceived idea of equality of results. He too did
not agree with the argument of 'merit'. Application of the principle of individual merit, un-
mitigated by other consideration, may quite often lead to inhuman results, he pointed
out. He supported the imposition of the 'means' test but disagreed with the view that the
extent of reservations can exceed 50%. Periodic review of this list of SEBCs and
extention of other facilities to them is stressed.
Decisions of U.S. Supreme Court
42. At this stage, it would be interesting to notice the development of law on the subject
in the U.S.A. The problem of blacks (Negroes) - holds a parallel to the problem of
Scheduled Castes, Scheduled Tribes and Backward Classes in India, with this
difference that in U.S.A. the problem is just about 200 years' old and far less complex.
Blacks were held not entitled to be treated as citizens. They were the lawful property of
their masters [Dred Scott v. Sanford [1857] 15 L.E. 691 . In spite of the Thirteenth
Amendment abolishing slavery and the Fourteenth Amendment guaranteeing equality, it
persisted in South and Mid-West for several decades. All challenges to slavery and
apartheid failed in courts. World War II and its aftermath, however, brought about a
radical change in this situation, the culmination of which was the celebrated decisions in
Brown v. Board of Education [1954] 98 L.E. 591 and Boiling v. Shrarpe [1954] 98 L.E.
583 over-ruling the 'separate but equal' doctrine evolved in Plessey v. Ferguson [1986]
41 L.E. 256 . In quick succession followed several decisions which effectively out-lowed
all discrimination against blacks in all walks of life. But the ground-realities remained.
Socially, educationally and economically, blacks remained a backward community.
Centuries of discrimination, deprivation and degradation had left their mark. They were
still unable to compete with their white counterparts. Similar was the case of other
minorities like Indians and Hispanics. It was not a mere case of economics. It was really
a case of 'persisting effects of past-descrimination'. The Congress, the State
Universities and other organs of the State took note of these lingering effects and the
consequent disadvantage suffered by them. They set out to initiate measures to
ameliorate them. That was the command of the Fourteenth Amendment. Not
unnaturally, these measures were challenged in Courts-with varying results. The four
decisions examined hereinafter, rendered during the period 1974-1990 mirror the
conflict and disclose the judicial thinking in that country.
43. The first decision is in Defunis v. Charles Odeqaard [1974] 40 L.Ed. 2nd. 164 . The
University of Washington Law School - a school operated by the State - evolved, in
December 1973, an admissions policy whereunder certain percentage of seats in the
Law School were reserved for minority racial groups. Para 6 of the programme stated,
"because certain ethnic groups in our society have historically been limited in their
access to the legal profession and because the resulting under-representation can
affect the quality of legal services available to members of such groups, as well as limit
their opportunity for full participation in the governance of our communities, the faculty
recognises a special obligation in its admissions policy to contribute to the solution of
the problem." (emphasis added) Procedure for admission for the minority students was
different and of a lesser standard than the one adopted for all others. Defunis, a non-
minority student was denied admission while granting it to minority applicants with lower
evaluation. He commenced an action challenging the validity of the programme.
According to him, the special admissions programme was violative of the Equal
Protection Clause in the Fourteenth Amendment. The Trial Court granted the requested
relief including admission to the plaintiff. On Appeal, the Supreme Court of Washington
reversed the Trial Court's Judgment. It upheld the constitutionality of the Admissions
Policy. The matter was brought by Defunis to United States Supreme Court by way of
certiorari. The Judgment of the Washington Supreme Court was stayed pending the
decision. By the time the matter reached the stage of final hearing, Defunis had arrived
in the final quarter of the last term. In view of this circumstance, five Members of the
Court held that the Constitutional question raised has become 'moot' (academic) and,
therefore, it is unnecessary to go into the same. Four of the Judges Brennan, Douglas,
White and Marshall, JJ., however, did not agree with that view. Of them, only Douglas,
J. recorded his reasons for upholding the Special Admissions' Programme. The learned
Judge was of the opinion that the Equal Protection Clause did not require that law
schools employ an admissions formula based solely upon testing results and under-
graduate grades nor does it prohibit Law Schools from evaluating an applicant's prior
achievements in the light of the barriers that he had to overcome. It would be
appropriate to quote certain observations of the learned Judge to the above affect which
inter alia emphasise the importance of looking to the promise and potential of a
candidate rather than to mere scores obtained in the relevant tests. He said:

the Equal Protection Clause did not enact a requirement that Law Schools employ as
the sole criterion for admissions a formula based upon the LSAT (Law School
Admission Test) and under-graduate grades, nor does it prohibit law schools from
evaluating an applicant's prior achievements in light of the barriers that he had to
overcome. A black applicant who pulled himself out of the ghetto into a junior college
may thereby demonstrate a level of motivation, perseverance and ability that would lead
a fair-minded admissions committee to conclude that he shows more promise for law
study than the son of a rich alumnus who achieved better grades at Harvard. That
applicant would not be offered admission because he is black, but because as an
individual he has shown he has the potential, while the Harvard man may have taken
less advantage of the vastly superior opportunities offered to him. Because of the
weight of the prior handicaps, the black applicant may not realize his full potential in the
first year of law school, or even in the full three years, but in the long pull of a legal
career, his achievements may far outstrip those of his classmates whose earlier records
appeared superior by conventional criteria.

The learned Judge while agreeing that any programme employing racial classification to
favour certain minority groups would be subject to strict scrutiny under Equal Protection
Clause, yet concluded that the material placed before the Court did not establish that
Defunis was invidiously discriminated against because of his race. Accordingly, he
opined that the matter should be remanded for fresh trial to consider whether the
plaintiff has been individually discriminated against because of his race.
44. The next case is in Regents of the University of California v. Allan Bakke [1978] 57
L.Ed. 2nd 750 . The Medical School of the University of California at Davis had been
following two admissions programmes, one in respect of the 84 seats (general) and the
other, a special admissions programme under which only disadvantaged members of
certain minority races were considered for the remaining 16 seats - the total seats
available being 100 a year. For these 16 seats, none except the members of the
minority races were considered and evaluated. The respondent, Bakke, a white, could
not obtain admission for two consecutive years, in view of his evaluation scores, while
admission was given to members of minority races who had obtained lesser scores than
him. He questioned the validity of special admissions programme on the ground that it
violated the equal protection clause in the Fourteenth Amendment to the Constitution
and also Title VI of the Civil Rights Act. 1964. The Trial Court upheld the plea on the
ground that the programme excluded members of non-minority races from the 16
reserved seats only on the basis of race and thus operated as a racial quota. It,
however, refused to direct the plaintiff to be admitted inasmuch as he failed to establish
that he would have been admitted but for the existence of the special admissions
programme. The matter was carried in direct appeal to Supreme Court of California,
which not only affirmed the Trial Court's Judgment in so far as it held the special
admission programme to be invalid but also granted admission to the plaintiff-
respondent into the Medical School. It was of the view that the University had failed to
prove that in the absence of special admissions programme the respondent would not
have been admitted. The matter was then carried to the United States Supreme Court,
where three distinct view-points emerged. Brennan, White, Marshall and Blackmun, JJ.
were of the opinion that the special admissions programme was a valid one and is not
violative of the Federal or State Constitutions or of Title VI of the Civil Rights Act, 1964.
They were of the opinion that the purpose of overcoming substantial, chronic minority
under-representation in the medical profession is sufficiently important to justify the
University's remedial use of race. Since the Judgment of the Supreme Court of
California prohibited the use of race as a factor in University admissions, they reversed
that Judgment. Chief Justice Warren Burger, Stevens, Stewart and Rehnquist, JJ. took
the other view. They affirmed the judgment of the California Supreme Court. They
based their judgment mainly on Title VI of Civile Rights Act, 1964, which provided that
"no person in the United States shall, on the ground of race, colour or national origin, be
excluded from participation in, be denied the benefits of or be subjected to
discrimination under any programme or activity receiving Federal Financial assistance."
They opined that Bakke was the victim of, what may be called, reverse discrimination
and that his exclusion from consideration in respect of the 16 seats being solely based
on race, is impermissible. Powell, J. took the third view in his separate opinion, partly
agreeing and partly disagreeing with the other view-points. He based his decision on
Fourteenth Amendment alone. He did not take into consideration the 1964 Act. The
learned Judge held that though racial and ethnic classifications of any kind are
inherently suspect and call for the most exacting judicial scrutiny, the goal of achieving a
racially balanced student body is sufficiently compelling to justify consideration of race
in admissions decisions under certain circumstances. He was of the opinion that while
preference can be provided in favour of minority races in the matter of admission,
setting up of quotas (which have the effect of foreclosing consideration of all others in
respect thereof) is not necessary for achieving the said compelling goal. He was of the
opinion that impugned programme is bad since it set apart a quota for minority races.
He sustained the admission granted to Bakke on the ground that the University failed to
establish that even without the quota, he would not have been admitted.
45. It would be useful to notice the three points of view in a little more detail. Brennan, J.
(with whom Marshall, White and Blackmun, JJ. agreed) observed that though the U.S.
Constitution was founded on the principle that "all men are created equal", the truth is
that it is not so in fact. Racial discrimination still persists in the society. In such a
situation the claim that the law must be "colour-blind" is more an aspiration rather than a
description of reality. The context and the reasons for which Title VI of the Civil Rights
Act, 1964 was enacted leads to the conclusion that the prohibition contained in Title VI
was intended to be consistent with the commands of the Constitution and no more.
Therefore, "any claim that the use of racial criteria is barred by the plain language of the
statute must fail in light of the remedial purpose of Title VI and its legislative history." On
the contrary, said the learned Judge, prior decisions of the court strongly suggest that
Title VI does not prohibit the remedial use of race where such action is constitutionally
permissible.
Dealing with the equal protection clause in the Fourteenth Amendment, the learned
Judge observed:

The assertion of human equality is closely associated with the proposition that
differences in colour or creed, birth or status, are neither significant nor relevant to the
way in which person should be treated. Nonetheless, the position that such factors must
be "constitutionally an irrelevance" summed up by the shorthand phrase "our
Constitution is colour-blind" has never been adopted by this Court as the proper
meaning of the Equal Protection clause. We conclude, therefore, that racial
classifications are not per se invalid under the Fourtheenth Amendment.Accordingly, we
turn to the problem of articulating what our role should be in reviewing state action that
expressly classifies by race.
(emphasis added)

After examining a large number of decided cases, the learned Judge held:

The conclusion that state educational institutions may constitutionally adopt admissions
programs designed to avoid exclusion of historically disadvantaged minorities, even
when such programs explicitly take race into account, finds direct support in our cases
construing congressional legislation designed to overcome the present effects of past
discrimination.

Indeed, held the learned Judge, failure to take race into account to remedy unequal
access to University programs caused by their own or by past societal discrimination
would not be consistent with the mandate of the Fourteenth Amendment. The special
admissions programme whereunder whites are excluded from the 16 reserved seats is
not bad for the reason that "its purpose is to overcome the effects of segregation by
bringing races together." The learned Judge then pointed out the relevance of race and
the lesser impact of economic disadvantage, with reference to certain facts and figures,
and concluded:

While race is positively correlated with differences in GPA and MCAT scores, economic
disadvantage is not. Thus, it appears that economically disadvantaged whites do not
score less well than economically advantaged whites while economically advantaged
blacks score less well than do disadvantaged whites.

46. Warren Burger,CJ., with whom Stevens, Stewart and Rehnquist, JJ. agreed opined
that since in respect of 16 seats reserved for racial minorities, whites are totally
excluded only on the basis of their race, it is a clear case of discrimination on the basis
of race and, therefore, violative of the Fourteenth Amendment to the Constitution as well
as Title VI of the Civil Rights Act, 1964.
47. Powell, J. took different line agreeing in part with both the points of view. His
approach is this:

(1) It is not necessary to consider the impact or the scope of Title VI of the Civil Rights
Act inasmuch as the said question was not raised or considered in the courts below.
The matter had to be examined only with reference to the Fourteenth Amendment;
(2) Any distinction based on race is inherently suspect in the light of the equal protection
clause and calls for more exacting judicial examination. It is for the State in such a case
to establish that the distinction was precisely tailored to serve a compelling
governmental interest.
(3) Since the special admissions program of the University totally excluded some
individual (non-minorities) from enjoying the State provided benefit of admission to the
medical school solely because of their race, the classification must be regarded as
suspect and it will be sustained only if it is supported by substantial state purpose or
interest and only where it is established that the classification is necessary to the
accomplishment of such purpose or for safeguarding such interest. The University has
failed to discharge this burden, though the State interest in removing "identified
discrimination" and attainment of a "diverse student body" were certainly compelling
interests. In other words, the University has failed to establish that for attaining the said
abjectives, creation of quotas was necessary.
(4) While preferences can be provided in favour of disadvantaged sections, reservation
of seats which had the effect of excluding members of a race or races from those seats
altogether, is not permissible. For this reason too, the special admissions program of
the University must be held to violate the Fourteenth Amendment.

In the course of his opinion, the learned Judge observed:

A facial intent to discriminate, however, is evident in petitioner's preference program and

not denied in this case. No such facial infirmity exists in an admissions program where
race or ethnic background is simply one element - to be weighed fairly against other
elements - in the selection process....
In summary, it is evident that the Davis special admissions program involves the use of
an explicit racial classification never before countenanced by this Court. It tells
applicants who are not Negro, Asian, or Chicano that they are totally excluded from a
specific percentage of the seats in an entering class. No matter how strong their
qualifications, quantitative and extracurricular including their own potential for
contribution to educational diversity, they are never afforded the chance to compete with
applicants from the preferred groups for the special admissions seats. At the same time,
the preferred applicants have the opportunity to compete for every seat in the class.

In this manner, the learned Judge agreed with Brennan, J. that race-conscious
admissions programmes are permissible under the Fourteenth Amendment, but
qualified the meaning of the race-conscious programmes. At the same time, he agreed
with the learned Chief Justice that the special admissions programme of Davis was
unconstitutional. He commended the Harvard admissions programme which provided
for certain preferences in favour of racially disadvantaged sections, without reserving
any seats as such for them.
48. We may next notice the decision in Fullilove v. Phillip M. Klutznick [1980] 65 LEd.
2nd 90 . The Public Works Employment Act, 1977 contained a provision to the effect
that atleast 10% of federal funds granted for local public works projects must be used by
the State or the local grantee to procure services or supplies from businesses owned by
minority group members, defined as United State citizens "who are negroes, spanish-
speaking, Orientals, Indians, Eskimos and Aleuts". Regulations were framed under the
Act and guidelines issued requiring the grantees and private contractors to seek out all
available qualified bona fide minority business enterprises (MBEs), to the extent
feasible, for fulfilling the 10% MBE requirement. The guidelines provided that contracts
shall be awarded to bona fide MBEs, even though they are not the lowest bidders if their
bids reflect merely attempts to cover costs inflated by the present effects of prior
disadvantage and discrimination. This requirement could, however, be waived in
individual cases if the grantee established the infeasibility of the requirement. Several
associations of construction contractors and Sub-contractors filed a suit in the Federal
District Court for a declaration that the said provision of the Public Works Employment
Act and the regulations made thereunder are void and enforceable being violative of the
equal protection clause of the Fourteenth Amendment and equal protection component
of the due process clause of the Fifth Amendment. The challenge failed in the District
Court as well as in the Court of Appeals. The matter was then carried to the United
State Supreme Court. By a majority of 6:3 (Stewart, Rehnquist and Stevens, JJ.
dissenting) the Supreme Court repelled the challenge. Chief Justice Burger speaking for
himself. White and Powell, JJ. stated the object of the impugned provision in the
following words:

The device of a 10% MBE participation requirement, subject to administrative waiver,

was thought to be required to assure minority business participation, otherwise it was
thought that repetition of the prior experience could be expected, with participation by
minority business accounting for an inordinately small percentage of government
contracting.
The learned Chief Justice then proceeded to examine" the question whether as a
means to accomplish these plainly constitutional objectives, congress can use racial
and ethnic criteria in this limited way as a condition attached to a federal grant." Indeed,
he posed the same question in this form: "Whether the limited use of racial and ethnic
criteria is a constitutionally permissible means for achieving the congressional
objectives", and proceeded to answer the same - after referring exhaustively to the
earlier decisions of the court relating to school admissions - in the following words:

We held that "just as the race of students must be considered in determining whether a

constitutional violation has occurred, so also must race be considered in formulating a
remedy."
(emphasis added)

... In dealing with this facial challenge to the statute, doubts must be resolved in support
of the congressional judgment that this limited program is a necessary step to effectuate
the constitutional mandate for equality of economic opportunity.

49. Marshall, J. speaking for himself, Brennan and Blackmun, JJ. in his concurring
opinion, pointed out the approach to be adopted in judging the validity of the race-
conscious programmes and concluded with these resounding words:

In my separate opinion in Bakke, I recounted the ingenious and pervasive forms of

discrimination against the Negro" long condoned under the Constitution and concluded
that "the position of the Negro today in America is the tragic but inevitable consequence
of centuries of unequal treatment" I there stated:

It is because of a legacy of unequal treatment that we now must permit the institutions
of this society to give consideration to race in making decisions about who will hold the
positions of influence, affluence, and prestige in America. For far too long, the doors to
those positions have been shut to Negroes. If we are ever to become a fully integrated
society, one in which the color of a person's skin will not determine the opportunities
available to him or her, we must be willing to take steps to open those doOrs.

50. We may now examine the decision in Metro Broadcasting, Inc. v. Federal
Communications Commission, rendered on June 27, 1990 (Copies of the decision have
been made available to us by Sri K. Parasaran, counsel for Union of India). Under the
Communications Act, 1934, the Federal Communications Commission was vested with
the exclusive authority to grant licences to persons wishing to construct and operate
Radio and Television Broadcasting Station in United States. The grant of licences was
to be based on 'public convenience, interest or necessity'. The commission found that
over the last two decades relatively fewer members of minority groups have held
broadcasting licences, indeed less than one percent. Even as late as in 1986, they
owned just 2.1%. The Commission proposed to remedy this under-representation and
accordingly evolved a policy whereunder minorities were to be granted certain
preferences in the matter of grant of these licences. The policy had two prominent
features. The first was to provide for a preference in the matter of evaluation of
applicants and the second was, what may be called, 'distress sale policy'. The second
feature meant that where the qualifications of a licencee to hold a broadcast licence
comes into question he was entitled to transfer the said licence to save the
disqualification provided such transfer is made in favour of a member of a minority. The
said two features were questioned by Metro Broadcasting Inc., which matter was
ultimately brought to the Supreme Court. The decision of the majority (Brennan, White,
Marshall, Blackmun and Stevens, JJ.) rendered by Brennan, J. is note-worthy for the
shift of approach from the earlier decisions. It is now held that a classification based on
race (benign race conscious measures) is constitutionally permissible even if it is not
designed to compensate victims of past governmental or societal discrimination so long
as it serves important governmental objectives and is substantially related to
achievement of those objectives. In other words, it is held that it is not necessary that
the court apply a strict standard of scrutiny to evaluate racial classification to ascertain
whether it is necessary for achieving the relevant objective and further whether it is
narrowly tailored to achieve a compelling state interest. Brennan, J. relied upon the
opinion of Chief Justice Burger in Fullilove for this liberal approach. It would be
appropriate to quote certain observations from his opinion:

We hold that benign race-conscious measures mandated by Congress - even if those

manures are not "remedial" in the sense of being designed to compensate victims of
past governmental or societal discrimination - are constitutionally permissible to the
extent that they serve important governmental objectives within the power of Congress
and are substantially related to achievement of those objectives. Congress and the FCC
have selected the minority ownership policies primarily to promote programming
diversity, and they urge that such diversity is an important governmental objective that
can serve as a constitutional basis for the preference policies. We agree....
Against this background, we conclude that the interest in enhancing broadcast diversity
is, at the very least an important governmental objective and is therefore a sufficient
basis for the Commission's minority ownership policies...we must pay close attention to
the expertise of the Commission and the fact finding of the Congress when analyzing
the nexus between minority ownership and programming diversity. With respect to this
"complex" empirical question, ibid., we are required to give "great weight to the
decisions of Congress and the experience of the Commission.

51. On the other hand, the minority (O'connor, J. speaking for herself, Rehnquist, C.J.,
Scalia and Kennedy, JJ.) protested against the abandonment of what they thought was
a well established standard of scrutiny in such cases in the following words:

Strict scrutiny" requires that, to be upheld, racial classifications must be determined to

be necessary and narrowly tailored to achieve a compelling state interest. The court
abandons this traditional safeguard against discrimination for a lower standard of
review, and in practice applies a standard like that applicable to routine legislation. This
Court's precedents in no way justify the Court's marked departure from our traditional
treatment or race classifications and its conclusion that different equal protection
principles apply to these federal actions.
52. We have examined the decisions of U.S. Supreme Court at some length only with a
view to notice how another democracy is grappling with a problem similiar in certain
respects to the problem facing this country. The minorities (including blacks) in United
States are just about 16 to 18% of the total population, whereas the backward classes
(including the Scheduled Castes and Scheduled Tribes) in this country - by whichever
yardstick they are measured - do certainly constitute a majority of the population. The
minorites there comprise 5 to 7 groups - Blacks, spanish-speaking people, Indians,
Purto Ricano, Aleuts and so on - whereas the castes and communities comprising
backward classes in this country run into thousands. Untouchability - and
'unapproachability', as it was being practised in Kerala - is something which no other
country in the world had the misfortune to have - nor the blessed caste system. There
have been equally old civilisations on earth like ours, if not older, but none had evolved
these pernicious practices, much less did they stamp them with scriptural sanction. Now
coming to Constitutional provisions, Section 1 of the Fourteenth Amendment (insofar as
it guarantees equal protection of the laws) corresponds to Article 14 but they do not
have provisions corresponding to Article 16(4) or 15(4). Title VI of the Civil Rights Act
enacted in 1964 roughly corresponds to Clause (2) of Articles 15 and 16.
53. At this stage, we wish to clarify one particular aspect. Article 16(1) is a facet of
Article 14. Just as Article14 permits reasonable classification, so does Article 16(1). A
classification may involve reservation of seats or vacancies, as the case may be. In
other words, under Clause (1) of Article 16, apointments and/or posts can be reserved
in favour of a class. But an argument is now being advanced - evidently inspired by the
opinion of Powell, J. in Bakke that Article 16(1) permits only preferences but not
reservations. The reasoning in support of the said argument is the same as was put
forward by Powell, J. This argument, in our opinion, disregards the fact that that is not
the unanimous view of the court in Bakke. Four Judges including Brennan, J. took the
view that such a reservation was not barred by the Fourteenth Amendment while the
other four (including Warren Burger, C.J.) took the view that the Fourteenth Amendment
and Title VI of the Civil Right Acts, 1964 bars all race-conscious progammes. At the
same time, there are a series of decisions relating to school desegregation - from Brown
to Board of Education v. Swann 28 L.Ed. 2nd 586 - where the court has been
consistently taking the view that if race be the basis of discrimination, race can equally
form the basis of remedial action. The shift in approach indicated by Metro Broadcasting
Inc. is equally significant. The 'lingering effects' (of past discrimination) theory as well as
the standard of strictest scrutiny of race-conscious programmes have both been
abandoned. Suffice it to note that no single uniform pattern of thought can be discerned
from these decisions. Ideas appear to be still in the process of evolution.
PART - III (QUESTIONS 1 AND 2)
We may now proceed to deal with the questions aforementioned.
Question. 1(a): Whether the 'provision' in Article 16(4) must necessarily be made by the
Parliament/Legislature?
54. Sri K.K.Venugopal, learned Counsel for the petitioner in Writ Petition No. 930 of
1990 submits that the "provision" contemplated by Clause (4) of Article 16 can be made
only by and should necessarily be made by the legislative wing of the State and not by
the executive or any other authority. He disputes the correctness of the holding in Balaji
negativing an identical contention. He submits that since the provision made under
Article16(4) affects the fundamental rights of other citizens, such a provision can be
made only by the Parliament/Legislature. He submits that if the power of making the
"provision" is given to the executive, it well give room for any amount of abuse.
According to the learned Counsel, the political executive, owing to the degeneration of
the electoral process, normally acts out of political and electoral compulsions, for which
reason it may not act fairly and indepenently. If, on the other hand, the provision is to be
made by the legislative wing of the State, it will not only provide an opportunity for
debate and discussion in the Legislature where several shades of opinion are
represented but a balanced and unbiased decision free from the allurements of electoral
gains is more likely to emerge from such a deliberating body. Sri Venugopal cites the
example of Tamil Nadu where, according to him, before every general election a few
communities are added to the list of backward classes, only with a view to winning them
over to the ruling party. We are not concerned with the aspect of what is ideal or
desirable but with what is the proper meaning to be ascribed to the expression
'provision' in Article 16(4) having regard to the context. The use of the expression
'provision' in Clause (4) of Article 16appears to us to be not without design. According to
the definition of 'State' in Article 12, it includes not merely the government and
Parliament of India and Government and Legislature of each of the States but all local
authorities and other authorities within the territory of India or under the control of the
Government of India which means that such a measure of reservation can be provided
not only in the matter of services under the Central and State Governments but also in
the services of local and other authorities referred to in Article 12. The expression 'Local
Authority' is defined in Section 3(31) of the General Clauses Act. It takes in all
municipalites, Panchayats and other similar bodies. The expression 'other authorities'
has received extensive attention from the court. It includes all statutory authorities and
other agencies and instrumentalities of the State Government/Central Government.
Now, would it be reasonable, possible or practicable to say that the Parliament or the
Legislature of the State should provide for reservation of posts/appointments in the
services of all such bodies besides providing for in respect of services under the
Central/State Government? This aspect would become clearer if we notice the definition
of "Law" in Article 13(3)(a). It reads:

13(3) In this article, unless the context otherwise requires,-

(a) "Law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law;...

The words "order", "bye-law", "rule" and "regulation" in this definition are significant.
Reading the definition of "State" in Article 12 and of "Law" in Article 13(3)(a), it becomes
clear that a measure of the nature contemplated by Article 16(4) can be provided not
only by the Parliament/Legislature but also by the executive in respect of Central/State
services and by the local bodies and "other authorities" contemplated by Article 12, in
respect of their respective services. Some of the local bodies and and some of the
statutory corporations like Universities may have thier own legislative wings. In such a
situation, it would be unreasonable and inappropriate to insist that reservation in all
these services should be provided by Parliament/Legislature. The situation and
circumstances of each of these bodies may vary. The rule regarding reservation has to
be framed to suit the particular situations. All this cannot reasonably be done by
Parliament/Legislature.
Even textually speaking, the contention cannot be accepted. The very use of the word
"provision" in Article16(4) is significant. Whereas Clauses (3) and (5) of Article 16 - and
Clauses (2) to (6) of Article 19 - use the word "Law", Article 16(4) uses the word
"provision". Regulation of service conditions by orders and Rules made by the
Executive was a well known feature at the time of the framing of the Constitution.
Probably for this reason, a deliberate departure has been made in the case of Clause
(4). Accordingly, we hold, agreeing with Balaji, that the "provision" contemplated by
Article 16(4) can also be made by the executive wing of the Union or of the State, as the
case may be, as has been done in the present case. Bajaji has been followed recently
in Comptroller and Auditor General of India v. Mohan Lal Mehrotra
MANU/SC/0495/1991 : (1992)ILLJ335SC . With respect to the argument of abuse of
power by the political executive, we may say that there is adequate safeguard against
misuse by the political executive of the power under Article 16(4) in the provision itself.
Any determination of backwardness is not a subjective exercise nor a matter of
subjective satisfaction. As held herein - as also by earlier judgments - the exercise is an
objective one. Certain objective social and other criteria has to be satisfied before any
group or class of citizens could be treated as backward. If the executive includes, for
collateral reasons, groups or classes not satisfying the relevant criteria, it would be a
clear case of fraud on power.
Question 1(b): Whether an executive order making a 'provision' under Article 16(4) is
enforceable forthwith?
55. A question is raised whether an executive order made in terms of Article 16(4) is
effective and enforceable by itself or whether it is necessary that the said "provision" is
enacted into a law made by the appropriate Legislature under Article 309 or is
incorporated into and issued as a Rule by the President/Governor under the proviso to
Article 309 for it to become enforceable? Mr. Ram Jethmalani submits that
Article 16(4) is merely declaratory in nature, that it is an enabling provision and that it is
not a source of power by itself. He submits that unless made into a law by the
appropriate Legislature or issued as a rule in terms of the proviso to Article309, the
"provision" so made by the Executive does not become enforceable. At the same time,
he submits that the impugned Memorandums must be deemed to be and must be
treated as Rules made and issued under the proviso to Article 309 of the Constitution.
We find it difficult to agree with Sri Jethmalani. Once we hold that a provision under
Article 16(4) can be made by the executive, it must necessarily follow that such a
provision is effective the moment it is made. A Constitution Bench of this Court in B.S.
Yadav (1981 S.C. 561), (Y.V. Chandrachud, C.J., speaking for the Bench) has
observed:

Article 235 does not confer upon the High Court the power to make rules relating to
conditions of service of judicial officers attached to district courts and the courts
subordinate thereto. Whenever it was intended to confer on any authority the power to
make any special provisions or rules, including rules relating to conditions of service,
the Constitution has stated so in express terms. See, for example
Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and
(2), 148(5), 166(3),176(2), 187(3), 208, 225, 227(2) and (3), 229(1) and
(2), 234, 237 and 283(1) and (2).

Be that as it may, there is yet another reason, why we cannot agree that the impugned
Memorandums are not effective and enforceable the moment they are issued. It is well
settled by the decisions of this Court that the appropriate government is empowered to
prescribe the conditions of service of its employees by an executive order in the
absence of the rules made under the proviso to Article 309. It is further held by this
Court that even where Rules under the proviso to Article 309 are made, the government
can issue orders/instructions with respect to matters upon which the Rules are silent.
[see Sant Ram Sharma v. State of Rajasthan MANU/SC/0330/1967 : (1968)IILLJ830SC
]. This view has been reiterated in a recent decision of this Court in Comptroller and
Auditor General v. Mohanlal Mehrotra MANU/SC/0427/1990 : 1990(47)ELT188(SC)
wherein it is held:

The High Court is not right in stating that there cannot be an administrative order
directing reservation for Scheduled Castes and Scheduled Tribes as it would alter the
statutory rules in force. The rules do not provide for any reservation. In fact it is silent on
the subject of reservation. The Government could direct the reservation by executive
orders. The administrative orders cannot be issued in contravention of the statutory
rules but it could be issued to supplement the statutory rules [See the observations in
Santram Sharma v. State of Rajasthan MANU/SC/0330/1967 : (1968)IILLJ830SC . In
fact similar circulars were issued by the Railway Board introducing reservations for
Scheduled Castes and Scheduled Tribes in the Railway Services both for selection and
non-selection categories of posts. They were issued to implement the policy of the
Central Government and they have been upheld by this Court in Akhil Bhartiya Soshit
Karamchari Sangh (Railways) v. Union of India MANU/SC/0058/1980 :
(1981)ILLJ209SC .

It would, therefore, follow that until a law is made or rules are issued under
Article 309 with respect to reservation in favour of backward classes, it would always be
open to the Executive (Government) to provide for reservation of appointments/posts in
favour of Backward Classes by an executive order. We cannot also agree with Sri
Jethmalani that the impugned Memorandums should be treated as Rules made under
the proviso to Article 309. There is nothing in them suggesting even distantly that they
were issued under the proviso to Article 309. They were never intended to be so, nor is
that the stand of the Union Government before us. They are executive orders issued
under Article 73 of the Constitution read with Clause (4) of Article 16. The mere
omission of a recital "in the name and by order of the President of India" does not affect
the validity or enforceability of the orders, as held by this Court repeatedly.
Question 2(a). Whether Clause (4) of Article 16 is an exception to Clause (1)?
56. In Balaji it was held - "there is no doubt that Article 15(4) has to be read as a proviso
or an exception to Articles 15(1) and 29(2)". It was observed that Article 15(4) was
inserted by the First Amendment in the light of the decision in Champakam, with a view
to remove the defect pointed out by this Court namely, the absence of a provision in
Article 15 corresponding to Clause (4) of Article 16. Following Balaji it was held by
another Constitution Bench (by majority) in Devadasan - "further this Court has already
held that Clause (4) of Article 16is by way of a proviso or an exception to Clause (1)".
Subbarao, J., however, opined in his dissenting opinion that Article 16(4) is not an
exception to Article 16(1) but that it is only an emphatic way of stating the principle
inherent in the main provision itself. Be that as it may, since the decision in Devadasan,
it was assumed by this Court that Article 16(4) is an exception to Article 16(1). This
view, however, received a severe set-back from the majority decision in State of Kerala
and Ors. v. N.M. Thomas MANU/SC/0479/1975 : (1976)ILLJ376SC . Though the
minority (H.R. Khanna and A.C. Gupta, JJ.) stuck to the view that Article 16(4) is an
exception, the majority (Ray, C.J., Mathew, Krishna Iyer and Fazal Ali, JJ.) held that
Article 16(4) is not an exception to Article 16(1) but that it was merely an emphatic way
of stating a principle implicit in Article 16(1). (Beg. J. took a slightly different view which
it is not necessary to mention here). The said four learned Judges - whose views have
been referred to in para 41 - held that Article 16(1) being a facet of the doctrine of
equality enshrined in Article 14 permits reasonable classification just as Article 14 does.
In our respectful opinion, the view taken by the majority in Thomas is the correct one.
We too believe that Article 16(1) does permit reasonable classification for ensuring
attainment of the equality of opportunity assured by it. For assuring equality of
opportunity, it may well be necessary in certain situations to treat unequally situated
persons unequally. Not doing so, would perpetuate and accentuate inequality.
Article 16(4) is an instance of such classification, put in to place the matter beyond
controversy. The "backward class of citizens" are classified as a separate category
deserving a special treatment in the nature of reservation of appointments/posts in the
services of the State. Accordingly, we hold that Clause (4) of Article 16 is not exception
to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by
Clause (1). The speech of Dr. Ambedkar during the debate on draft
Article 10(3) [corresponding to Article 16(4)] in the Constituent Assembly - referred to in
para 28 - shows that a substantial number of members of the Constituent Assembly
insisted upon a "provision (being) made for the entry of certain communities which have
so far been outside the administration", and that draft Clause (3) was put in recognition
and acceptance of the said demand. It is a provision which must be read along with and
in harmony with Clause (1). Indeed, even without Clause (4), it would have been
permissible for the State to have evolved such a classification and made a provision for
reservation of appointments/posts in their favour. Clause (4) merely puts the matter
beyond any doubt in specific terms.
Regarding the view expressed in Balaji and Devadasan, it must be remembered that at
that time it was not yet recognised by this Court that Article 16(1) being a facet of
Article 14 does implicitly permit classification. Once this feature was recognised the
theory of Clause (4) being an exception to Clause (1) became untenable. It had to be
accepted that Clause (4) is an instance of classification inherent in Clause (1). Now, just
as Article 16(1)is a facet or an elaboration of the principle underlying Article 14, Clause
(2) of Article 16 is also an elaboration of a facet of Clause (1). If Clause (4) is an
exception to Clause (1) then it is equally an exception to Clause (2). Question then
arises, in what respect is Clause (4) an exception to Clause (2), if 'class' does not
means 'caste'. Neither Clause (1) nor Clause (2) speak of class. Does the contention
mean that Clause (1) does not permit classification and therefore Clause (4) is an
exception to it. Thus, from any point of view, the contention of the petitioners has no
merit.
Question 2(b): Whether Article 16(4) is exhaustive of the concept of reservations in
favour of backward classes?
57. The question than arises whether Clause (4) of Article 16 is exhaustive of the topic
of reservations in favour of backward classes. Before we answer this question it is well
to examine the meaning and content of the expression "reservation". Its meaning has to
be ascertained having regard to the context in which it occurs. The relevant words are
"any provision for the reservation of appointments or posts." The question is whether
the said words contemplate only one form of provision namely reservation simplicitor, or
do they take in other forms of special provisions like preferences, concessions and
exemptions. In our opinion, reservation is the highest form of special provision, while
preference, concession and exemption are lesser forms. The Constitutional scheme and
context of Article 16(4) induces us to take the view that larger concept of reservations
takes within its sweep all supplemental and ancilliary provisions as also lesser types of
special provisions like exemptions, concessions and relaxations, consistent no doubt
with the requirement of maintenance of efficiency of administration - the admonition of
Article 335. The several concessions, exemptions and other measures issued by the
Railway Administration and noticed in Karamchari Sangh are instances of
supplementay, incidental and ancilliary provisions made with a view to make the main
provision of reservation effective i.e., to ensure that the members of the reserved class
fully avail of the provision for reservation in their favour. The other type of measure is
the one in Thomas. There was no provision for reservation in favour of Scheduled
Castes/Scheduled Tribes in the matter of promotion to the category of Upper Division
Clerks. Certain tests were required to be passed before a Lower Division Clerk could be
promoted as Upper Division Clerk. A large number of Lower Division Clerks belonging
to S.C./S.T. were not able to pass those tests, with the result they were stagnating in
the category of L.D.Cs. Rule 13AA was accordingly made empowering the government
to grant exemption to members of S.C./S.T. from passing those tests and the
Government did exempt them, not absolutely, but only for a limited period. This
provision for exemption was a lesser form of special treatment than reservation. There
is no reason why such a special provision should not be held to be included within the
larger concept of reservation. It is in this context that the words "any provision for the
reservation of appointments and posts" assume significance. The word "any" and the
associated words must be given their due meaning. They are not a mere surplusage. It
is true that in Thomas it was assumed by the majority that Clause (4) permits only one
form of provision namely reservation of appointments/posts and that if any concessions
or exemptions are to be extended to backward classes it can be done only under
Clause (1) of Article 16. In fact the argument of the writ petitioners (who succeeded
before the Kerala High Court) was that the only type of provision that the State can
make in favour of the backward classes is reservation of appointments/posts provided
by Clause (4) and that the said clause does not contemplate or permit granting of any
exemptions or concessions to the backward classes. This argument was accepted by
Kerala High Court. This Court, however, by a majority (Ray,C.J., Mathew, Krishna Iyer
and Fazal Ali, JJ.) reversed the view taken by Kerala High Court, holding that such
exemptions/concessions can be extended under Clause (1) of Article16. Beg, J. who
joined the majority in exemption provided by impugned notification was indeed a kind of
reservation and was warranted by and relatable to Clause (4) of Article 16 itself. This
was because - according to the learned Judge - Clause (4) was exhaustive of the
provisions that can be made in favour of the backward classes in the matter of
employment. We are inclined to agree with the view taken by Beg, J. for the reasons
given hereinabove. In our opinion, therefore, where the State finds it necessary - for the
purpose of giving full effect to the provision of reservation to provide certain exemptions,
concessions or preferences to members of backward classes, it can extend the same
under Clause (4) itself. In other words, all supplemental and ancilliary provisions to
ensure full availment of provisions for reservation can be provided as part of concept of
reservation itself. Similarly, in a given situation, the State may think that in the case of a
particular backward class it is not necessary to provide reservation of
appointments/posts and that it would be sufficient if a certain preference or a
concession is provided in their favour. This can be done under Clause (4) itself. In this
sense, Clause (4) of Article 16 is exhaustive of the special provisions that can be made
in favour of "the backward class of citizens". Backward Classes having been classified
by the Constitution itself as a class deserving special treatment and the Constitution
having itself specified the nature of special treatment, it should be presumed that no
further classification or special treatment is permissible in their favour apart from or
outside of Clause (4) of Article 16.
Question 2(c): Whether Article 16(4) is exhaustive of the very concept of reservations?
58. The aspect next to be considered is whether Clause (4) is exhaustive of the very
concept of reservations? In other words, the question is whether any reservations can
be provided outside Clause (4) i.e., under Clause (1) of Article 16. There are two views
on this aspect. On a fuller consideration of the matter, we are of the opinion that Clause
(4) is not, and cannot be held to be, exhaustive of the concept of reservations; it is
exhaustive of reservations in favour of backward classes alone. Merely bacause, one
form of classification is stated as a specific clause, it does not follow that the very
concept and power of classification implicit in Clause (1) is exhausted thereby. To say
so would not be correct in principle. But, at the same time, one thing is clear. It is in very
exceptional situations, and not for all and sundry reasons - that any further reservations,
of whatever kind, should be provided under Clause (1). In such cases, the State has to
satisfy, if called upon, that making such a provision was necessary (in public interest) to
redress a specific situation. The very presence of Clause (4) should act as a damper
upon the propensity to create further classes deserving special treatment. The reason
for saying so is very simply. If reservations are made both under Clause (4) as well as
under Clause (1), the vacancies available for free competition as well as reserved
categories would be correspondingly whittled down and that is not a reasonable thing to
do.
Whether Clause (1) of Article 16 does not permit any reservations?
59. For the reasons given in the preceding paragraphs we must reject the argument that
Clause (1) of Article 16permits only extending of preferences, concessions and
exemptions, but does not permit reservation of appointments/posts. As pointed out in
para (54) the argument that no reservations can be made under Article16(1) is really
inspired by the opinion of Powell, J. in Bakke. But in the very same paragraph we had
pointed out that it is not the unanimous opinion of the Court. In principle, we see no
basis for acceding to the said contention. What kind of special provision should be
made in favour of a particular class is a matter for the State to decide, having regard to
the facts and circumstances of a given situation - subject, of course, to the observations
in the preceding paragraph.
PART - IV (QUESTIONS 3, 4 AND 5)
Question 3(a): Meaning of the expression "Backward Class of citizens" in Article 16(4).
60. What does the expression "Backward Class of Citizens" in Article 16(4) signify and
how should they be identified? This has been the single most difficult question
tormenting this nation. The expression is not defined in the Constitution. What does it
mean then? The arguments before us mainly revolved round this question. Several
shades of opinion have been presented to us ranging from one extreme to the other.
Indeed, it may be difficult to set out in full the reasoning presented before us orally and
in several written propositions submitted by various counsel. We can mention only the
substance of and the broad features emerging from those submissions. At one end of
the spectrum stands Sri N.A. Palkhiwala (supported by several other counsel) whose
submissions may briefly be summarised in the following words: a secular, unified and
caste-less society is a basic feature of the Constitution. Caste is a prohibited ground of
distinction under the Constitution. It ought be erased altogether from the Indian Society.
It can never be the basis for determining backward classes referred to in Article 16(4).
The Report of the Mandal Commission, which is the basis of the impugned
Memorandums, has treated the expression "backward classes" as synonymous with
backward castes and has proceed to identify backward classes solely and exclusively
on the basis of caste, ignoring all other considerations including poverty. It has indeed
invented castes for Non-Hindus where none exists. The Report has divided the nation
into two sections, backward and forward, placing 52% of the population in the former
section. Acceptance of Report would spell disaster to the unity and integrity of the
nation. If half of the posts are reserved for backward classes, it would seriously
jeopardise the efficiency of the administration, educational system, and all other
services resulting in backwardness of the entire nation. Merit will disappear by deifying
backwardness. Article 16(4) is broader than Article 15(4). The expression "backward
class of citizens" in Article 16(4) is not limited to "socially and educationally backward
classes" in Article 15(4). The impugned Memorandums, based on the said report must
necessarily fall to the ground along with the Report. In fact the main thrust of Sri
Palkhiwala's argument has been against the Mandal Commission Report.
61. Sri K.K.Venugopal appearing for the petitioner in Writ Petition No. 930 of 1990
adopted a slightly different approach while reiterating that the expression "backward
classes of citizens" in Article 16(4) cannot be construed as backward castes. According
to him, backwardness may be social and educational and may also be economic. The
authority appointed to identify backward classes must first settle the criteria or the
indicators for determining backward classes and then it must apply the said criteria to
each and every group in the country. In the course of such identification, it may well
happen that certain castes answer and satisfy the criteria of backwardness and may as
a whole qualify for being termed as a backward class. But it is not permissible to start
with castes to determine whether a caste is a backward class. He relied upon the
provision in Clause (2) of Article 38 and Article 46 to say that the objective is to
minimize the inequalities in income not only among individuals but also among groups
of persons and to help the weaker sections of the society. The economic criterion is an
important one and must be applied in determining backward classes and also for
excluding those sections or identified groups who may for the sake of convenience be
referred to as the 'creamy layer'. Since castes do not exist among Muslims, Christians
and Sikhs, caste can never be the basis of identification. The learned Counsel too
pointed out the alleged basic errors in the approach adopted by and conclusions arrived
at by the Mandal Commission.
62. Smt. Shyamala Pappu also took the stand that caste can never be the basis for
identification. According to her, survey to identify backward classes should be from
individual to individual; it cannot be caste-wise. To the same effect are the submissions
of Sri P.P. Rao appearing for the Supreme Court Bar Association. According to him, the
only basis for identifying backward classes should be occupation-cum-means as was
done in the State of Karnataka at a particular stage which aspect is dealt with and
approved by this Court in Chitralekha and Ors. v. State of Mysore
MANU/SC/0030/1964 : [1964]6SCR368 . A secular socialist society, he submitted, can
never countenance identification of backward classes on the basis of caste which would
only perpetuate and accentuate caste differences and generate antagonism and
antipathy between castes.
63. At the other end of the spectrum stands Sri Ram Jethmalani, counsel appearing for
the State of Bihar supported by several other counsel. According to him, backward
castes in Article 16(4) meant and means only the members of Shudra casts which is
located between the three upper castes (Brahmins, Kshatriyas and Vaishyas) and the
out-castes (Panchamas) referred to as Scheduled Castes. According to him,
Article 16(4)was conceived only for these "middle castes" i.e., castes categorised as
shudras in the caste system and for none else. These backward castes have suffered
centuries of discrimination and disadvantage, leading to their backwardness. The
expression "backward classes" does not refer to any current characteristic of a
backward caste save and except paucity or inadequacies of representation in the
apparatus of the Government. Poverty is not a necessary criterion of backwardness; in
is in fact irrelevant. The provision for reservation is really a programme of historical
compensation. It is neither a measure of economic reform nor a poverty alleviation
programme. The learned Counsel further submitted that it is for the State to determine
who are the backward classes; it is not a matter for the court. The decision of the
Government is not judicially reviewable. Even if reviewable, the scope of judicial review
is extremely limited - to the only question whether the exercise of power is a fraud on
the Constitution. The learned Counsel referred to certain American decisions to show
that even in that country several programmes of affirmative action and compensatory
discrimination have been evolved and upheld by courts.
64. Dr. Rajiv Dhawan, learned Counsel appearing for Srinarayana Dharama Paripalana
Yogam (an association of Ezhavas in Kerala) submitted that
Article 16(4) and 15(4) occupy different fields and serve different purposes. Whereas
Article 15(4) contemplates positive action programmes, Article 16(4) enables the State
to undertake schemes of positive discrimination. For this reason, the class of intended
beneficiaries under both the clauses is different. The social and educational
backwardness which is the basis of identifying backwardness under Article 15(4) is only
partly true in the case of 'backward class of citizens' in Article 16(4). The expression
"any backward class of citizens" occurring in Article 16(4) must be understood in the
light of the purpose of the said clause namely, empowerment of those groups and
classes which have been kept out of the administration - classes which have suffered
historic disabilities arising from discrimination or disadvantage or both and who must
now be provided entry into the administrative apparatus. In the light of the fact that the
Scheduled Castes and Scheduled Tribes were also intended to be beneficiaries of
Article 16(4) there is no reason why caste cannot be an exclusive criteria for
determining beneficiaries under Article 16(4). Counsel emphasised the fact that
Article 16(4) speaks of group protection and not individual protection.
Sri R.K. Garg appearing for the Communist Party of India, an Intervenor, submitted that
caste plus poverty plus location plus residence should be the basis of identification and
not mere caste. According to the learned Counsel, a national concensus is essential to
introduce reservations for 'orther backward classes' under Article16(4) and that efforts
must be made to achieve such a concensus.
65. Sri Siva Subramanium appearing for the State of Tamil Nadu supported the Mandal
Commission Report in its entirety. According to him, backward classes must be
identified only on the basis of caste and that no economic criteria should be adopted for
the said purpose. He submitted that economic criteria may be employed as one of the
indicators for identification of backward classes but once a backward class is identified
as such, there is no question of excluding any one from that class on the basis of
income or means or on any other economic criterion. He referred to the history of
reservations in the province of Madras prior to independence and now it has been
working there successfully and peacefully over the last several decades.
Sri P.S. Poti appearing for the State of Kerala supported the identification of backward
classes solely and exclusively on the basis of caste. He submitted that the caste system
is scientifically organised and practiced in Kerala and, therefore, furnishes a perfectly
scientific basis for identification of backward classes. He submitted that besides the vice
of untouchability, another greater vice of 'unapproachability' was also being practiced in
that State.
Sri Ram Awadesh Singh, M.P., President of Lok Dal and President of All India
Federation of Backward Classes, Scheduled Castes, Scheduled Tribes and Religious
minorites submitted that caste should be the sole criteria for determining backwardness.
He referred to centuries of injustice meted out by upper castes to shudras and
panchamas and submitted that these castes must now be given a share in the
governance of the country which alone will assure their dignity besides instilling in them
a sense of confidence and a spirit of competition.
66. Sri K.Parasaran, learned Counsel appearing for the Union of India urged the
following submissions:

(1) The reservation provided for by Clause (4) of Article 16 is not in favour of backward
citizens, but in favour of backward class of citizens. What is to be identified is backward
class of citizens and not citizens who can be classified as backward. The homogeneous
groups based on religion, race, caste, place of birth etc. can form a class of citizens and
if that class is backward there can be a reservation in favour of that class of citizens.
(2) Caste is a relevant consideration. It can even be the dominant consideration.
Indeed, most of the lists prepared by the States are prepared with reference to and on
the basis of castes. They have been upheld by this Court.
(3) Article 16(2) prohibits discrimination only on any or all of the grounds mentioned
therein. A provision for protective discrimination on any of the said grounds coupled with
other relevant grounds would not fall within the prohibition of Clause (2). In other words,
if reservation is made in favour of backward class of citizens the bar contained in
Clause (2) is not attracted, even if the backward classes are identified with reference to
castes. The reason is that the reservation is not being made in favour of castes
simplicitor but on the ground that they are backward castes/classes which are not
adequately represented in the services of the State.
(4) The criteria of backwardness evolved by Mandal Commission is perfectly proper and
unobjectionable. It has made an extensive investigation and has prepared a list of
backward classes. Even if there are instances of under-inclusion or over-inclusion, such
errors do not vitiate the entire exercise. Moreover, whether a particular caste or class is
backward or not and whether it is adequately represented in the services of the State or
not are questions of fact and are within the domain of the executive decision.

67. In paragraphs 33 to 42, we have noticed how this Court has been grappling with the
problem over the years. In Venkataraman's case, a Seven-Judge Bench of this Court
noticed the list of backward classes mentioned in Schedule III to the Madras Provincial
and Subordinate Service Rules, 1942, as also the fact that backward classes were
enumerated on the basis of caste/race. It found no objection thereto though in
Champakam, rendered by the same Bench and on the same day it found such a
classification bad under Article 15 on the ground that Article 15 did not contain a clause
corresponding to Clause (4) of Article 16. In Venkataraman's case this Court observed
that in respect of the vacancies reserved for backward classes of Hindus, the petitioner
(a Brahmin) cannot have any claim inasmuch as "those reserved posts (were reserved)
not on the ground of religion, race, caste etc. but because of the necessity for making a
provision for reservation of such post in favour of a backward class of citizens." The writ
petition was allowed on the ground that the allocation of vacancies to and among
communities other than Harijans and backward classes of Hindus cannot be sustained
in view of Clauses (1) and (2) of Article 16.
68. Though Balaji was not a case arising under Article 16(4), what it said about
Article 15(4) came to be accepted as equally good and valid for the purpose of
Article 16(4). The formulations enunciated with respect to Article 15(4) were, without
question, applied and adopted in cases arising under Article 16(4). It is, therefore,
necessary to notice precisely the formulations in Balaji relevant in this behalf.
Gajendragadkar,J. speaking for the Constitution Bench found, on an examination of the
Nagangowda Committee Report, "that the Committee virtually equated the class with
the castes." The learned Judge then examined the scheme of Article 15, the meaning of
the expression 'class', the importance of caste in the Hindu social structure and
observed, while dealing with social backwardness:

Therefore, in dealing with the question as to whether any class of citizens is socially
backward or not, it may not be irrelevant to consider the caste of the said group of
citizens.... Though the caste of the group of citizens may be relevant, its importance
should not be exaggerated. If the classification of backward classes of citizens was
based solely on the caste of the citizen, it may not always be logical and may perhaps
contain the vice of perpetuating the caste themselves.

The learned Judge further proceeded to hold:

Besides, if the caste of the group of citizens was made the sole basis for determining
the social backwardness of the said group, the 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 Linguists 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 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 class of citizens, it cannot
be made the sole or the dominant test in that behalf. Social backwardness is in the
ultimate analysis the result of poverty to a very large extent.... It is true that social
backwardness which results form poverty is likely to be aggravated by considerations of
caste to which the poor citizens may belong, but that only shows the relevance of both
caste and poverty in determining the backwardness of citizens.

The learned Judge stressed the part played by the occupation, conventional beliefs and
place of habitation in determining the social backwardness. Inasmuch as the
identification of backward classes of Nagangowda Committee was based almost solely
on the basis of caste, it was held to be bad.
The criticism of the Respondents' counsel against the Judgment runs thus: While it
recognises the relevance and significance of the caste and the integral connection
between caste, poverty and social backwardness, it yet refuses to accept caste as the
sole basis of identifying socially backward classes, partly for the reason that castes do
not exist among non-Hindus. The Judgment does not examine whether caste can or
cannot form the starting- point of process of identification of socially backward classes.
Nor does it consider the aspect - how does the non-existence of castes among non-
Hindus (assuming that the said premise is factually true) makes it irrelevant in the case
of Hindus, who constitute the bulk of the country's population. There is no rule of law
that a test of basis adopted must be uniformly applicable to the entire population in the
country as such.
Before proceeding further it may be noticed that Balaji was dealing with Article 15(4),
which clause contains the qualifying words "socially and educationally" preceding the
expression "backward classes". Accordingly, it was held that the backwardness
contemplated by Article 15(4) is both social and educational. Though, Clause (4) of
Article 16 did not contain any such qualifying words, yet they came to be read into it. In
Janaki Prasad Parimoo, Palekar, J. speaking for a Constitution Bench, took it as "well-
settled that the expression 'backward classes' in Article 16(4) means the same thing as
the expression 'any socially and educationally backward class of citizens' in
Article 15(4)". More of this later.
69. In Minor P.Rajendran, the caste vis-a-vis class debate took a sharp turn. The ratio in
this case marks a definite and clear shift in emphasis. (We have dealt with it at some
length in para 36). Suffice it to mention here that in this decision, it was held 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 case the list of socially and educationally
backward classes has been specified by caste. But that does not necessarily mean that
caste was a sole consideration and that persons belonging to these castes are also not
a class of socially and educationally backward citizens." This principle was reiterated in
Peeriakarupan. Balram and Trilokinath-II. We have referred to these decisions at some
length in paras 38 and 39. In Peeriakaruppan, Hegde,J. concluded, "a caste has always
been recognised as a class."
70. This issue was gone into in some detail in Vasant Kumar, where all the five Judges
constituting the Constitution Bench expressed different opinions. Chandrachud,CJ. did
not express himself on this aspect but other four learned Judges did. Desai, J.
recognised that "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)." He also recognised that "there has been some vacillation on the part of
the judiciary on the question whether the caste should be the basis for recognising the
backwardness." After examining the significance of caste in the Indian social structure,
the learned Judge observed:

Social hierarchy and economic position exhibit an indisputable mutuality. The lower the
caste, the poorer its member. 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 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.

The learned Judge also recognised that caste system has even penetrated other
religions to whom the practice of caste should be anathema. He observed:

So sadly and oppressively deep-rooted is caste in our country that it has cut across
even the barriers of religion. The caste system has penetrated other religious and
dissentient Hindu sects to whom the practice of caste should be anathema and today
we find that practitioners of other religious faiths and Hindu dissentients are some times
as rigid adherents to the system of caste as the conservative Hindus. We find Christians
Harijans, Christian Madars, Christian Reddys, Christian Kammas, Mujbi Sikhs, etc. etc.
In Andhra Pradesh there is a community known as Pinjars or Dudekulas (known in the
North as 'Rui Pinjane Wala'): (professional cottonbeaters) who are really Muslims but
are treated in rural society, for all practical purposes, as a Hindu caste. Several other
instances may be given.

Having thus noticed the pernicious effects of the caste system, the learned Judge
opined that the only remedy in such a situation is to devise a method for determining
social and educational backward classes without reference to caste. He stressed the
significance of economic criterion and of poverty and concluded that a time has come
when the economic criterion alone should be the basis for identifying the backward
classes. Such an identification has the merit of advancing the secular character of the
nation and will tend towards nullifying caste influence, said the learned Judge.
71. Chinnappa Reddy,J. dealt with the question at quite some length. The learned
Judge quoted Max Weber, according to whom the three dimensions of social inequality
are class, status and power - and stressed the importance of poverty in this matter.
Learned Judge opined that caste system is closely entwined with economic power. In
the words of the learned Judge:

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.

The learned Judge too recognised the percolation of caste system into other religions
and concluded his opinion in the following words:

Poverty, caste, occupation and habitation are the principal factors which contribute to
brand a class as socially backward.... But mere poverty it seems is not enough to invite
the Constitutional branding, because of the vast majority of the people of our country
are poverty-struck but some among them are socially and educationally forward and
others backward.... 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.... Class poverty, not individual poverty, is therefore
the primary test.... Once the relevant conditions are taken into consideration and the
backwardness of a class of people is determined, it will not be for the court to interfere
in the matter. But, lest there be any misunderstanding, judicial review will not stand
excluded.

72. A.P.Sen,J. dealt with this question in a short opinion. According to him:

....The predominant and only factor for making special provisions under Article 15(4) or
for reservation of posts and appointments under Article 16(4) should be poverty, and
caste or a sub-caste or a group should be used only for purposes of identification of
persons comparable' to Scheduled Castes or Scheduled Tribes, till such members of
backward classes attain a state of enlightenment and there is eradication of poverty
amongst them and they become equal partners in a new social order in our national life.
73. "E.S.Venkataramiah,J. too dealt with this aspect at some length. After examining the
origins of the caste and the ugly practices associated with it, the learned Judge opined:

An examination of the question in the background of the Indian social conditions shows
that the expression 'backward classes' used in the Constitution referred only to those
who were born in particular castes, or who belonged to particular races or tribes or
religious minorities which were backward.

The learned Judge then referred to the debates in the Constituent Assembly on draft
Article 10 and other allied articles, including the speech of Dr. Ambedkar and observed
thus:

The whole tenor of discussion in the Constituent Assembly pointed to making

reservation for a minority of the population including Scheduled Castes and Scheduled
Tribes which were socially backward. During the discussion, the Constitution (First
Amendment) Bill by which Article 15(4)was introduced, Dr. Ambedkar referred to
Article 16(4) and said that backward classes are 'nothing else but a collection of certain
castes. 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.

The learned Judge also supported the imposition of a means test as was done by the
Kerala Government in K.S.Jayasree and Anr. v. State of Kerala and Anr.
MANU/SC/0068/1976 : [1977]1SCR194 .
The above opinions emphasise the integral connection between caste, occupation,
poverty and social backwardness. They recognise that in the Indian context, lower
castes are and ought to be treated as backward classes. Rajendran and Vasant Kumar
(opinions of Chinnappa Reddy and Venkataramiah, JJ.) constitute important milestones
on the road to recognition of relevance and significance of caste in the context of
Article 16(4) and Article 15(4).
74. At this stage, it would be fruitful to examine, how he words "caste" and "class" were
understood in pre Constitution India. We shall first refer to various Rules in force in
several parts of India, where these expressions were used and notice how were these
expressions defined and understood. In the Madras Provincial and Subordinate Service
Rules, 1942, framed by the Governor of Madras under Section 241(2)(b)read
with 255 and 275 of the Government of India Act. 1935, the expression "backward
classes" was defined in Clause 3(A) of Rule 2. (The provinces of Madras at that time
covered not only the present State of Tamil Nadu but also a major portion of the present
State of Andhra Pradesh and parts of present States of Kerala and Karnataka.) The
definition read as follows:

3(A)."Backward classes" means the communities mentioned in Schedule III of this part.

Schedule III bore the heading "backward classes". It was a collection of castes and
tribes under the sub-heading "race, tribe or caste." The backward classes in the
Schedule not only included the backward castes and tribes in Hindu religion but also
certain sections of Muslims in the nature of castes. For example, item (23) in Schedule
III referred to 'Dudekula' who, as is well known, is a socially disadvantaged section of
Muslims - in effect, a caste - pursuing the occupation of ginning and cleaning of cotton
and preparing pillows and mattresses. In this connection, reference may be had to
Chapter III - 'History of the Backward Classes Movement in Tamil Nadu' - of the Report
of the Tamil Nadu Second Backward Classes Commission (1985), which inter alia
refers to formation of 'The Madras Provincial Backward Classes League, an association
representing the various backward Hindu communities' in 1934 and its demand for
separate representation for them in services.
The former State of Mysore was one of the earliest States, where certain provisions
were made in favour of Backward Classes. The opinion of E.S.Venkataramiah, J. in
Vasant Kumar, (at pages 442-443) traces briefly the history of reservations in the State
of Mysore from 1918-21 upto the re-organisation of State. The learned Judge points out
how the expression 'backward classes' and 'backward communities' were used
interchangeably. All the castes/communities' except Brahmins in the State were notified
as backward communities/castes. As far back as 1921, preferential recruitment was
provided in favour of "backward communities", in Government services.
In Bombay province, the Government of Bombay, Finance Department Resolution No.
2610 dated 5.2.1925 defined "Backward Classes" as all except Brahmins, Prabhus,
Marwaris, Parsis, Banyas and Christians. Certain reservations in Government service
were provided for these classes. In 1930, the State Committee noticed the over-lapping
meanings attached to the expressions "depressed classes" and "backward classes" and
recommended that "Depressed Classes" should be used in the sense of untouchables,
a usage which "will coincide with existing common practice." They proposed that the
wider group should be called "Backward Classes", which should be subdivided into
Depressed Classes (i.e., untouchables); Aboriginals and Hill Tribes; Other Backward
Classes (including wandering tribes). They opined that the groups then currently called
Backward Classes should be renamed "intermediate classes". In addition to 36
Depressed classes (approximate 1921 population 1.475 millions) and 24 Aboriginal and
Hill Tribes (approximate 1921 population 1.323 millions), they listed 95 Other Backward
Classes (approximate 1921 population 1.041 millions)".
75. In the former princely State of Travancore, the expression used was "Communities",
as would be evident from the Proceedings of the Government of His Highness the
Maharaja of Travancore, contained in Order R. Dis. N. 893/general dated Trivandrum,
25th June, 1935. It refers to earlier orders on the subject as well. What is significant is
that the expression "communities" was used as taking in Muslims and certain sections
of Christians as well; it was not understood as confined to castes in Hindu social system
alone. The operative portion of the order reads as follows:

....Accordingly, Government have decided that all communities whose population is

approximately 2 per cent of the total population of the State or about one lakh, be
recognised as separate communities for the purpose of recruitment to the public
service. The only exception from the above rule will be the Brahmin community who,
though forming only 1.8 per cent of the total population, will be dealt with as a separate
community. On the above basis the classification of communities will be as follows:-
A. HINDU
1. Brahmin.
2. Nayar.
3. Other Caste Hindu.
4. Kummula.
5. Nudar.
6. Ezlmva.
7. Cheramar (Pulaya)
8. Other Hindu.

B. MUSLIM.
C. CHRISTIAN.

1. Jacobite.
2. Marthomite.
3. Syriac Catholic.
4. Latin Catholic.
5. South India United Church.
6. Other Christian.

In the then United Provinces, the term "Backward Classes" was understood as covering
both the untouchable classes as well other "Hindu Backward" classes. Marc Galanter
says:

The United Provinces Hindu Backward Classes League (founded in 1929) submitted a
memorandum which suggested that the term "Depressed" carried a connotation "of
untouchability, in the sense of causing pollution by touch as in the case of Madras and
Bombay" and that many communities were reluctant to identify themselves as
depressed. The League suggested the term "'Hindu' Backward'" as a more suitable
nomenclature. The list of 115 castes submitted included all candidates from the
untouchable category as well as a stratum above. "All of the listed communities belong
to non-Dwijas or degenerate or Sudra classes of the Hindus." They were described as
low socially, educationally and economically and were said to number over 60% of the
population.

The expression "depressed and other backward classes" occurs in the Objectives
Resolution of the Constituent Assembly moved by Jawaharlal Nehru on December 13,
1946.
76. We may also refer to a speech delivered by Dr. Ambedkar on May 9, 1916 at the
Columbia university of New York, U.S.A. on the subject "castes in India: their
mechanism, genesis and development" (the speech was published in Indian Antiquary-
May 1917-Vol.XLI), which shows that as early as 1916, "class" and "caste" were used
inter-changeably. In the course of the speech, he said:

....society is always composed of classes. It may be an exaggeration to assert the

theory of class-conflict, but the existence of definite classes in a society is a fact. Their
basis may differ. They may be economic or intellectual or social, but an individual in a
society is always a member of a class. This is a universal fact and early Hindu society
could not have been an exception to this rule, and, as a matter of fact, we know it was
not. If we bear this generalization in mind, our study of the genesis of caste would be
very much facilitated, for we have only to determine what was the class that first made
itself into a caste, for class and caste, so to say, are next door neighbours, and it is only
a span that separates the two. A Caste is an Enclosed Class.

A little later he stated:

We shall be well advised to recall at the outset that the Hindu society, in common with
other societies, was composed of classes and the earliest known are the (1) Brahmins
or the priestly class; (2) the Kshatriya, or the military class; (3) the Vaishya, or the
merchant class and (4) the Shudra or the artisan and menial class. Particular attention
has to be paid to the fact that this was essentially a class system, in which individuals,
when qualified, could change their class, and therefore classes did change their
personnel. At some time in the history of the Hindus, the priestly class socially detached
itself from the rest of the body of people and through a closed-door policy became a
caste by itself. The other classes being subject to the law of social division of labour
underwent differentiation, some into large, others into very minute groups.

77. In Encyclopaedia Britannica Vol. 16, the following statement occurs under the
heading "Slavery, Serfdom and Forced labour" under the sub-heading "servitude in
Ancient India and China." - "castes in India."

More abundant than slavery were serfdom. Within the rigid classification of social
classes in ancient India, the Sudra caste was obliged to serve the Ksatriya, or warrior
caste, the Brahmins, or priests, and the Vaisyas, or farmers, cattle raisers and
merchants. There is an unbreakable barrier, however, separating these castes from the
inferior Sudra caste, the descendants of the primitive indigenous people who lived in
serfdom.
In those times it was not a person's economic wealth that gave him his social rank but
rather his social and racial level; and thus one of the Manu's laws says" Although able,
a Sudra must not acquire excess riches, since when a Sudra acquires a fortune, he
vexes the Brahmans with his insolence." The barrier separating the servile castes took
on extreme cruelty in some laws:
The legal condition of the Sudra left him only death as a means of improving his
condition.

In Legal Thesaurus (Regular Edition) the following meanings are given to the word
"class":

Assortment, bracket, branch, brand, breed, caste, category, classification, classes,

denomination, designation, division...; gradation, grade, group, grouping hierarchy....
sect, social rank, social status....

The following meanings are given to the word "caste" in Webster's English Dictionary:
(1) a race, stock, or breed of men or animals (2): one of the hereditary classes into
which the society of India is divided in accordance with a system fundamental to
Hinduism, reaching back into distant antiquity, and dictating to every orthodox Hindu the
rules and restrictions of all social intercourse and of which each has a name of its own
and special customs that restrict that occupation of its members and their intercourse
with the members of the other classes (3)(a): a division or class of society comprised of
persons within a separate and exclusive order based variously upon differences of
wealth, inherited rank or privilege, profession, occupation... (b) the position conferred by
caste standing. (4) a system of social stratification more rigid than a class and
characterized by hereditary status, endogamy and social barriers rigidly sanctioned by
custom law or religion.

All the above material does go to show that in pre-Independence India, the expressions
'class' and 'caste' were used interchangeably and that caste was understood as an
enclosed class.
78. We may now turn to Constituent Assembly debates with a view to ascertain the
original intent underlying the use of words "backward class of citizens". At the outset we
must clarify that we are not taking these debates or even the speeches of Dr. Ambedkar
as conclusive on the meaning of the expression "backward classes." We are referring to
these debates as furnishing the context in which and the objective to achieve which this
phrase was put in Clause (4). We are aware that what is said during these debates is
not conclusive or binding upon the court because several members may have
expressed several views, all of which may not be reflected in the provision finally
enacted. The speech of Dr. Ambedkar on this aspect, however, stands on a different
footing. He was not only the Chairman of the Drafting Committee which inserted the
expression "backward" in draft Article 10(3) [it was not there in the original draft
Article 10(3)], he was virtually piloting the draft Article. In his speech, he explains the
reason behind draft Clause (3) as also the reason for which the Drafting Committee
added the expression "backward" in the clause. In this situation, we fail to understand
how can anyone ignore his speech while trying to ascertain the meaning of the said
expression. That the debates in Constituent Assembly can be relied upon as an aid to
interpretation of a constitutional provision is borne out by a series of decisions of this
Court. See Madhu Limaye A.I.R. 1969 S.C. 1014 ; Golaknath v. State of Punjab
MANU/SC/0029/1967 : [1967]2SCR762 (Subba Rao, CJ.); opinion of Sikri, CJ., in
Dhillon v. Union of India MANU/SC/0060/1971 : [1972]83ITR582(SC) and the several
opinions in Keshavananda BharatiMANU/SC/0445/1973 : AIR1973SC1461 where the
relevance of these debates is pointed out, emphasising at the same time, the extent to
which and the purpose for which they can be referred to). Since the expression
"backward" or "backward class of citizens" is not defined in the Act, reference to such
debates is permissible to ascertain, at any rate, the context, background and objective
behind them. Particularly, where the Court wants to ascertain the 'original intent' such
reference may be unavoidable.
79. According to Dr. Ambedkar (his speech is referred in para 28 and need not be
reproduced here), the Drafting Committee was of the opinion that such a qualifying
expression was necessary to indicate that the classes of citizens for whom reservations
were to be made are those "communities which have not had so far representation in
the State." It was also of the opinion that without such a qualifying expression (like
'backward') the "exemption made in favour of reservation will ultimately eat up the rule
altogether". This was also the opinion of Sri K.M.Munshi, who too was a member of the
Drafting Committee. In his speech (referred to in para 27) he explains why the said
qualifying expression "backward" was inserted by the Drafting Committee in draft
Article 10(3). His speech, in so far as it is relevant on this aspect, has been quoted in
extenso in para 28 and need not be repeated here.
In our opinion too, the words "class of citizens - not adequately represented in the
services under the State" would have been a vague and uncertain description. By
adding the word "backward" and by the speeches of Dr. Ambedkar and Sri K.M.Munshi,
it was made clear that the "class of citizens...not adequately represented in the services
under the State" meant only those classes of citizens who were not so represented on
account of their social backwardness.
Reference can also be made in this context to the speech of Dr. Ambedkar in the
Parliament at the time the First Amendment to the Constitution was being enacted. It
must be remembered that the Parliament which enacted the First Amendment was the
very same Constituent Assembly which framed the Constitution and Dr. Ambedkar as
the Minister of Law was piloting the Bill. He said that backward classes "are nothing else
but a collection of certain castes". (the relevant portion of his speech is referred to in
papa 32) and that it was for those backward classes that Article 15(4) was being
enacted.
80. Pausing here, we may be permitted to make a few observations. The speeches of
Dr. Ambedkar may have to be understood in the context of the then obtaining ground
realities viz., (a) Hindus constituted 84% of the total population of India. And among
Hindus, caste discrimination was unfortunately an unpleasant reality; (b) caste system
had percolated even the Non-Hindu religions - no doubt to varying extents. Particularly
among Christians in Southern India, who were converts from Hinduism, it was being
practised with as much rabidity as it was among Hindus. (This aspect has been
stressed by the Mandal Commission (Chapter 12 paras 11 to 16) and has also been
judicially recognised. (See, for instance, the opinions of Desai and Chinnappa Reddy,
JJ. in Vasant Kumar). Encyclopaedia Britannica-II-Micropaedia refers to existence of
castes among Muslims and Christians at pages 618 and 61.9. Among Muslims, it is
pointed out, a distinction is made between 'Ashrats' (supposed to be descendants
ascendants of Arab immigrants) and non-Ashrafs (native converts). Both are divided
into subgroups. Particularly, the non-Ashrafs, who are converts from Hinduism, it is
pointed out, practice caste system (including endogamy)" in a manner close to that of
their Hindu counter-parts." All this could not have been unknown to Dr. Ambedkar, the
keen social scientist that he was.
(c) It is significant to notice that throughout his speech in the Constituent Assembly, Dr.
Ambedkar was using the word "communities" (and not 'castes') which expression
includes not only the castes among the Hindus but several other groups. For example,
Muslims as a whole were treated as a backward community in the princely State of
Travancore besides several sections/denominations among the Christians. The word
"community" is clearly wider than "caste" - and "backward communities" meant not only
the castes - wherever they may be found - but also other groups, classes and sections
among the populace.
81. Indeed, there are very good reasons why the Constitution could not have used the
expression "castes" or "caste" in Article 16(4) and why the word "class" was the natural
choice in the context. The Constitution was meant for the entire country and for all time
to come. Non-Hindu religions like Islam, Christianity and Sikh did not recognise caste as
such though, as pointed out hereinabove, castes did exist even among these religions
to a varying degree. Further, a Constitution is supposed to be a permanent document
expected to last several centuries. It must surely have been envisaged that in future
many classes may spring-up answering the test of backwardness, requiring the
protection of Article 16(4). It, therefore, follows that from the use of the word "class" in
Article 16(4), it cannot be concluded either that "class" is antithetical to "caste" or that a
caste cannot be a class or that a caste as such can never be taken as a backward class
of citizens. The word "class" in Article 16(4), in our opinion, is used in the sense of
social class - and not in the sense it is understood in Marxist jargon.
In Rajendran, Trilokinath-II, Balram and Peerikarupan, this reality was recognised and
given effect to, notwithstanding the fact that they had to respect and operate within the
rather qualified formulation of Balaji.
For the sake of completeness, we may refer to a few passages from Vasant Kumar to
show what does the concept of 'caste' signify? D.A. Deasi, J. defines and describes
"caste" in the following terms:

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. Homo Hierarchicus is expected to be the central and substantive
element of the caste/system which differentiate it from other social systems. The
concept of purity and impurity conceptualises the caste system.... There are four
essential features of the caste system which maintained its homo hierarchicus
character: (1) hierarchy (2) commensality: (3) restrictions on marriage; and (4)
hereditary occupation. Most of the caste are endogamous groups. Intermarriage
between two groups is impermissible. But 'Pratilom' marriages are not wholly known.

Venkataramiah,J. also defined "caste" in practically the same terms. He said:

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.... 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 peculiar to each caste.... Even the choice of occupation of
members of castes was predetermined in many cases, and the members of particular
caste were prohibited from engaging themselves in other types of callings, profession or
occupations. Certain occupations were considered to be degrading or impure.

82. The above material makes it amply clear that a caste is nothing but a social class - a
socially homogeneous class. It is also an occupational grouping, with this difference that
its membership is hereditary. One is born into it. Its membership is involuntary. Even if
one ceases to follow that occupation, still he remains and continues a member of that
group. To repeat, it is a socially and occupationally homogenous class. Endogamy is its
main charateristic. Its social status and standing depends upon the nature of the
occupation followed by it. Lowlier the occupation, lowlier the social standing of the class
in the graded hierarchy. In rural India, occupation-caste nexus is true even today. A few
members may have gone to cities or even abroad but when they return - they do,
barring a few exceptions they go into the same fold again. It doesn't matter if he has
earned money. He may not follow that particular occupation. Still, the label remains. His
identity is not changed. For the purposes of marriage, death and all other social
functions, it is his social class - the caste - that is relevant. It is a matter of common
knowledge that an overwhelming majority of doctors, engineers and other highly
qualified people who go abroad for higher studies or employment, return to India and
marry a girl from their own caste. Even those who are settled abroad come to India in
search of brides and bridegrooms for their sons and daughters from among their own
caste or community. As observed by Dr. Ambedkar, a caste is an enclosed class and it
was mainly these classes the Constituent Assembly had in mind though not exclusively
- while enacting Article 16(4). Urbanisation has to some extent broken this caste-
occupation nexus but not wholly. If one sees around himself, even in towns and cities, a
barber by caste continues to do the same job - may be, in a shop (hair dressing saloon).
A washerman ordinarily carries on the same job though he may have a laundry of his
own. May be some others too carry on the profession of barber or washerman but that
does not detract from the fact that in the case of an over-whelming majority, the caste-
occupation nexus subsists. In a rural context, of course, a member of barber caste
carrying on the occupation of a washerman or vice versa would indeed be a rarity - it is
simply not done. There, one is supposed to follow his caste occupation, ordained for
him by his birth. There may be exceptions here and there, but we are concerned with
generality of the scene and not with exceptions or aberrations. Lowly occupation results
not only in low social position but also in poverty; it generates poverty. 'Caste-
occupation-poverty' cycle is thus an ever present reality. In rural India, it is strikingly
apparent; in urban centers, there may be some dilution. But since rural India and rural
population is still the overwhelmingly predominant fact of life in india, the reality
remains. All the decisions since Balaji speak of this 'caste-occupation-poverty' nexus.
The language and emphasis may very but the theme remains the same. This is the
stark reality notwithstanding all our protestations and abhorrence and all attempts at
weeding out this phenomenon. We are not saying it ought to be encouraged. It should
not be. It must be eradicated. That is the ideal - the goal. But any programme towards
betterment of these sections-classes of society and any programme designed to
eradicate this evil must recognise this ground reality and attune its programme
accordingly. Merely burying our heads in the sand - Ostrich-like - wouldn't help. One
cannot fight his enemy without recognizing him. The U.S.Supreme Court has said
repeatedly, if race be the basis of discrimination - past and present - race must also
form the basis of redressal programmes though in our constitutional scheme, it is not
necessary to go that far. Without a doubt, an extensive restructuring of socio-economic
system is the answer. That is indeed the goal, as would be evident from the preamble
and Part IV (Directive Principles). But we are concerned here with a limited aspect of
equality emphasised in Article 16(4) - equality of opportunity in public employment and a
special provision in favour of backward class of citizens to enable them to achieve it.
(b). Identification of "backward class of citizens".
83. Now, we may turn to the identification of "backward class of citizens". How do you
go about it? Where do you begin? Is the method to very from State to State, region to
region and from rural to urban? What do you do in the case of religions where caste
system is not prevailing? What about other classes, groups and communities which do
not wear the label of caste? Are the people living adjacent to cease-fire line (in Jammu
and Kashmir) or hilly or inaccessible regions to be surveyed and identified as backward
classes for the purpose of Article 16(4)? And so on and so forth are the many questions
asked of us. We shall answer them. But our answers will necessarily deal with
generalities of the situation and not with problems or issues of a peripheral nature which
are peculiar to a particular State, district or region. Each and every situation cannot be
visualised and answered. That must be left to the appropriate authorities appointed to
identify. We can lay down only general guidelines.
At the outset, we may state that for the purpose of this discussion, we keep aside the
Scheduled Tribes and Scheduled Castes (since they are admittedly included within the
backward classes), except to remark that backward classes contemplated by
Article 16(4) do comprise some castes - for it cannot be denied that Scheduled Castes
include quite a few castes.
Coming back to the question of identification, the fact remains that one has to begin
somewhere - with some group, class or section. There is no set or recognised method.
There is no law or other statutory instrument prescribing the methodology. The ultimate
idea is to survey the entire populace. If so, one can well begin with castes, which
represent explicit identifiable social classes/groupings, more particularly when
Article 16(4)seeks to ameliorate social backwardness. What is unconstitutional with it,
more so when caste, occupation, poverty and social backwardness are so closely inter-
twined in our society? [Individual survey is out of question, since Article 16(4) speaks of
class protection and not individual protection]. This does not mean that one can wind up
the process of identification with the castes. Besides castes (whether found among
Hindus or others) there may be other communities, groups, classes and denominations
which may qualify as backward class of citizens. For example, in a particular State,
Muslim community as a whole may be found socially backward. (As a matter of fact,
they are so treated in the State of Karnataka as well as in the State of Kerala by their
respective State Governments). Similarly, certain sections and denominations among
Christians in Kerala who were included among backward communities notified in the
former princely State of Travancore as far back as in 1935 may also be surveyed and
soon and so forth. Any authority entrusted with the task of identifying backward classes
may well start with the castes. It can take caste 'A', apply the criteria of backwardness
evolved by it to that caste and determine whether it qualifies as a backward class or not.
If it does qualify, what emerges is a backward class, for the purposes of Clause (4) of
Article 16. The concept of 'caste' in this behalf is not confined to castes among Hindus.
It extends to castes, wherever they obtain as a fact, irrespective of religious sanction for
such practice. Having exhausted the castes or simultaneously with it, the authority may
take up for consideration other occupational groups, communities and classes. For
example, it may take up the Muslim community (After excluding those sections, castes
and groups, if any, who have already been considered) and find out whether it can be
characterised as a backward class in that State or region, as the case may be. The
approach may differ from State to State since the conditions in each State may differ.
Nay, even within a State, conditions may differ from region to region. Similarly,
Christians may also be considered. If in a given place, like Kerala, there are several
denominations, sections or divisions, each of these groups may separately be
considered. In this manner, all the classes among the populace will be covered and that
is the central idea. The effort should be to consider all the available groups, sections
and classes of society in whichever order one proceeds. Since caste represents an
existing, identifiable, social group spread over an overwhelming majority of the country's
population, we say one may well begin with castes, if one so chooses, and then go to
other groups, sections and classes. We may say, at this stage, that we broadly
commend the approach and methodology adopted by Justice O.Chinnappa Reddy
Commission in this respect.
We do not mean to suggest - we may reiterate - that the procedure indicated
hereinabove is the only procedure or method/approach to be adopted. Indeed, there is
no such thing as a standard or model procedure/approach. It is for the authority
(appointed to identify) to adopt such approach and procedure as it thinks appropriate,
and so long as the approach adopted by it is fair and adequate, the court has no say in
the matter. The only object of the discussion in the preceding para is to emphasise that
if a Commission/Authority begins its process of identification with castes (among
Hindus) and occupational groupings among others, it cannot by that reason alone be
said to be constitutionally or legally bad. We must also say that there is no rule of law
that a test to be applied for identifying backward classes should be only one and/or
uniform. In a vast country like India, it is simply not practicable. If the real object is to
discover and locate backwardness, and if such backwardness is found in a caste, it can
be treated as backward; if it is found in any other group, section or class, they too can
be treated as backward.
83A. The only basis for saying that caste should be excluded from consideration
altogether while identifying the Backward Class of Citizens for the purpose of
Article 16(4) is Clause (2) of Article 16. This argument, however, overlooks and ignores
the true purport of Clause (2). It prohibits discrimination on any or all of the grounds
mentioned therein. The significance of the word "any" cannot be minimised. Reservation
is not being made under Clause (4) in favour of a 'caste' but a 'backward class'. Once a
caste satisfies the criteria of backwardness, it becomes a backward class for the
purposes of Article 16(4). Even that is not enough. It must be further found that that
backward class is not adequately represented in the services of the State. In such a
situation, the bar of Clause (2) of Article 16 has no application whatsoever. Similarly, the
argument based upon secular nature of the Constitution is too vague to be accepted. It
has been repeatedly held by the U.S. Supreme Court in School desegregation cases
that if race be the basis of discrimination, race can equally form the basis of redressal.
In any event, in the present context, it is not necessary to go to that extent. It is
sufficient to say that the classification is not on the basis of the caste but on the ground
that that caste is found to be a backward class not adequately represented in the
services of the State. Born Heathen, by baptism, it becomes a Christian - to use a
similie. Baptism here means passing the test of backwardness.
84. Another contention urged is that only that group or section of people, who are
suffering the lingering effects of past discrimination, can alone be designated as a
backward class and not others. This argument, inspired by certain American decisions,
cannot be accepted for more than one reason. Firstly, when the caste discrimination is
still prevalent, more particularly in rural India (which comprises the bulk of the total
population), the theory of lingering effects has no relevance. Where the discrimination
has ended, does that aspect become relevant and not when the discrimination itself is
continuing. Secondly, as we have noticed hereinabove, the said theory has practically
been given up by the U.S. Supreme Court in Metro Broadcasting. In this case, it is held
sufficient for introducing and implementing a race-conscious programme that such
programme serves important State objectives. In other words, according to this test, it is
no longer necessary to prove that such programme is designed to compensate victims
of past societal or governmental discrimination. Thirdly, the basic premise of the theory
of lingering effects is not accepted by all the learned Judges of U.S. Supreme Court. If
one sees the opinion of Douglas, J. in Defunis and of Marshall, J. in Bakke and
Fullilove. It would become evident. They also say that discriminatory practices against
blacks and other minorities have not come to an end but are still persisting. In this
country too, none can deny - in the face of the material collected by the various
Commissions including Mandal Commission - that discrimination persists even today in
India. The representation of the socially backward classes in the Government apparatus
is quite inadequate and that conversely the upper classes have a disproportionately
large representation therein. This is the lingering effect, if one wants to see it.
Whether the backwardness in Article 16(4) should be both social and educational?
85. The other aspect to be considered is whether the backwardness contemplated in
Article 16(4) is social backwardness or educational backwardness or whether it is both
social and educational backwardness. Since the decision in Balaji, it has been assumed
that the backward class of citizens contemplated by Article 16(4) is the same as the
socially and educationally backward classes, Scheduled Castes and Scheduled Tribes
mentioned in Article 15(4). Though Article 15(4) came into existence later in 1951 and
Article 16(4) does not contain the qualifying words 'socially and educationally' preceding
the words "backward class of citizens" the same meaning came to be attached to them.
Indeed, it was stated in Janaki Prasad Parimoo (Palekar,J. speaking for the Constitution
Bench) that:

Article 15(4) speaks about socially and educationally backward classes of citizens."
However, it is now settled that the expression "backward class of citizens" in
Article 16(4) means the same thing as the expression "any socially and educationally
backward class of citizens" in Article15(4). In order to qualify for being called a
'backward class citizens' he must be a member of a socially and educationally backward
class. It is social and educational backwardness of a class which is material for the
purposes of both Article 15(4) and 16(4).

It is true that no decision earlier to it specifically said so, yet such an impression gained
currency and it is that impression which finds expression in the above observation. In
our respectful opinion, however, the said assumption has no basis. Clause (4) of
Article 16 does not contain the qualifying words "socially and educationally" as does
Clause (4) of Article 15. It may be remembered that Article 340 (which has remained
unamended) does employ the expression 'socially and educationally backward classes'
and yet that expression does not find place in Article 16(4). The reason is obvious:
"backward class of citizens" in Article16(4) takes in Scheduled Tribes, Scheduled
Castes and all other backward classes of citizens including the socially and
educationally backward classes. Thus, certain classes which may not qualify for
Article 15(4) may qualify for Article 16(4). They may not qualify for Article 15(4) but they
may qualify as backward class of citizens for the purposes of Article 16(4). It is equally
relevant to notice that Article 340 does not expressly refer to services or to reservations
in services under the State, though it may be that the Commission appointed thereunder
may recommend reservation in appointments/posts in the services of the State as one
of the steps for removing the difficulties under which SEBCs are labouring and for
improving their conditions. Thus, S.E.B.Cs, referred to in Article 340 is only one of the
categories for whom Article 16(4) was enacted; Article16(4) applies to a much larger
class than the one contemplated by Article 340. It would, thus, be not correct to say that
backward class of citizens' in Article 16(4) are the same as the socially and
educationally backward classes in Article 15(4). Saying so would mean and imply
reading a limitation into a beneficial provision like Article 16(4). Moreover, when
speaking of reservation in appointments/posts in the State services - which may mean,
at any level whatsoever - insisting upon educational backwardness may not be quite
appropriate.
Further, if one keeps in mind the context in which Article 16(4) was enacted it would be
clear that the accent was upon social backwardness. It goes without saying that in
Indian context, social backwardness leads to educational backwardness and both of
them together lead to poverty which in turn breeds and perpetuates the social and
educational backwardness. They feed upon each other constituting a vicious circle. It is
a well known fact that till independence the administrative apparatus was manned
almost exclusively by members of the 'upper' castes. The Shudras, the Scheduled
Castes and the Scheduled Tribes and other similar backward social groups among
Muslims and Christians had practically no entry into the administrative apparatus. It was
this imbalance which was sought to be redressed by providing for reservations in favour
of such backward classes. In this sense Dr. Rajiv Dhawan may be right when he says
that the object of Article 16(4) was "empowerment" of the backward classes. The idea
was to enable them to share the state power. We are, accordingly, of the opinion that
the backwardness contemplated by Article 16(4) is mainly social backwardness. It
would not be correct to say that the backwardness under Article 16(4) should be both
social and educational. The Scheduled Tribes and the Scheduled Castes are without a
doubt backward for the purposes of the clause; no one has suggested that they should
satisfy the test of social and educational backwardness. It is necessary to state at this
stage that the Mandal Commission appointed under Article 340was concerned only with
the socially and educationally backward classes contemplated by the said Article. Even
so, it is evident that social backwardness has been given precedence over others by the
Mandal Commission - 12 out of 22 total points. Social backwardness - it may be
reiterated - leads to educational and economic backwardness. No objection can be, nor
is taken, to the validity and relevancy of the criteria adopted by the Mandal Commission.
For a proper a appreciation of the criteria adopted by the Mandal Commission and the
difficulties in the way of evolving the criteria of backwardness, one must read closely
Chapters III and XI of Volume I along with Appendixes 12 and 21 in Volume II. Appendix
XII is the Report of the Research Planning Team of the Sociologists while Appendix 21
is the 'Final List of Tables' adopted in the course of socio-educational survey. In
particular, one may read paras 11.18 to 11.22 in Chapter XI, which are quoted
hereunder for ready reference:

11.18. Technical Committee constituted a Sub-Committee of Experts (Appendix-20,

Volume II) to help the Commission prepare 'Indicators of Backwardness' for analysing
data contained in computerised tables. After a series of meetings and a lot of testing of
proposed indicators against the tabulated data, the number of tables actually required
for the Commission's work was reduced to 31 (Appendix-21 Volume II). The formulation
and refinement of indicators involved testing and validation checks at every stage.
11.19. In this connection, it may be useful to point out that in social sciences no
mathematical formulae or precise bench-marks are available for determining various
social traits. A survey of the above type has to read warily on unfamiliar ground and
evolve its own norms and bench-marks. This exercise was full of hidden pitfalls and two
simple examples are given below to illustrate this point.
11.20. In Balaji's case the Supreme Court held that if a particular community is to be
treated as educationally backward, the divergence between its educational level and
that of the State average should not be marginal but substantial. The Court considered
50% divergence to be satisfactory. Now, 80% of the population of Bihar (1971 Census)
is illiterate. To beat this percentage figure by a margin of 50% will mean that 120%
members of a caste/class should be illiterates. In fact it will be seen that in this case
even 25% divergence will stretch us to the maximum saturation point of 100%.
11.21. In the Indian situation where vast majority of the people are illiterate, poor or
backward, one has to be very careful in setting deviations from the norms as, in our
conditions, norms themselves are very low. For example, Per Capita Consumer
Expenditure for 1977-78 at current prices was Rs. 991 per annum. For the same period,
the poverty line for urban areas was at Rs. 900 per annum and for rural areas at Rs.
780. It will be seen that this poverty line is quite close to the Per Capita Consumer
Expenditure of an average Indian. Now following the dictum of Balaji case, if 50%
deviation from this average Per Capital Consumer Expenditure was to be accepted to
identify 'economically backward' classes, their income level will have to be 50% below
the Per Capital Consumer Expenditure i.e. less than Rs. 495.5 per year. This figure is
so much below the poverty line both in urban and rural areas that most of the people
may die of starvation before they qualify for such a distinction.
11.22. In view of the above, 'Indicators for Backwardness' were tested against various
cut-off points. For doing so, about a dozen castes well-known for their social and
educational backwardness were selected from amongst the castes covered by our
survey in a particular State. These were treated as 'Control' and validation checks were
carried out by testing them against 'Indicators' at various cut-off points. For instance,
one of the 'Indicators' for social backwardness is the rate of student dropouts in the age
group 5-15 years as compared to the State average. As a result of the above tests, it
was seen that in educationally backward castes this rate is at least 25 per cent above
the State average. Further, it was also noticed that this deviation of 25% from the State
average in the case of most of the 'Indicators' gave satisfactory results. In view of this,
wherever an 'Indicator' was based on deviation from the State average, it was fixed at
25%, because a deviation of 50% was seen to give wholly unsatisfactory results and, at
times, to create anomalous situations.

It is after these paragraphs that the Report sets out the indicators (criteria) evolved by it,
set out in Paras 11.23 and 11.24 of the Report.
102. The S.E.B.Cs. referred to by the impugned Memorandums are undoubtedly
'backward class of citizens' within the meaning of Article 16(4).
(d) 'Means' test and 'creamy layer':
86. 'Means test' in this discussion signifies imposition of an income limit, for the purpose
of excluding persons (from the backward class) whose income is above the said limit.
This submission is very often referred to as "the creamy layer" argument. Petitioners
submit that some members of the designated backward classes are highly advanced
socially as well as economically and educationally. It is submitted that they constitute
the forward section of that particular backward class - as forward as any other forward
class member - and that they are lapping up all the benefits of reservations meant for
that class, without allowing the benefits to reach the truly backward members of that
class. These persons are by no means backward and with them a class cannot be
treated as backward. It is pointed out that since Jayasree, almost every decision has
accepted the validity of this submission.
On the other hand, the learned Counsel for the State of Bihar, Tamil Nadu, Kerala and
other counsel for respondents strongly oppose any such distinction. It is submitted that
once a class is identified as a backward class after applying the relevant criteria
including the economic one, it is not permissible to apply the economic criteria once
again and sub-divide a backward class into two sub-categories. Counsel for the State of
Tamil Nadu submitted further that at one stage (in July 1979) the State of Tamil Nadu
did indeed prescribe such an income limit but had to delete it in view of the practical
difficulties encountered and also in view of the representation received. In this behalf,
the learned Counsel invited our attention to Chapter 7-H (pages 60 to 62) of the
Ambashankar Commission (Tamil Nadu Second Backward Classes Commission)
Report. According to the respondents the argument of 'creamy layer' is but a mere ruse,
a trick, to deprive the backward classes of the benefit of reservations. It is submitted
that no member of backward class has come forward with this plea and that it ill
becomes the members of forward classes to raise this point. Strong reliance is placed
upon the observations of Chinnappa Reddy, J. in Vasant Kumar, to the following effect:

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

In our opinion, it is not a question of permissibility or desirability of such test but one of
proper and more appropriate identification of a class - a backward class. The very
concept of a class denotes a number of persons having certain common traits which
distinguish them from the others. In a backward class under Clause (4) of Article 16, if
the connecting link is the social backwardness, it should broadly be the same in a given
class. If some of the members are far too advanced socially (which in the context,
necessarily means economically and, may also mean educationally) the connecting
thread between them and the remaining class snaps. They would be misfits in the class.
After excluding them alone, would the class be a compact class. In fact, such exclusion
benefits the truly backward. Difficulty, however, really lies in drawing the line - how and
where to draw the line? For, while drawing the line, it should be ensured that it does not
result in taking away with one hand what is given by the other. The basis of exclusion
should not merely be economic, unless, of course, the economic advancement is so
high that it necessarily means social advancement. Let us illustrate the point. A member
of backward class, say a member of carpenter caste, goes to Middle East and works
there as a carpenter. If you take his annual income in rupees, it would be fairly high
from the Indian standard. Is he to be excluded from the Backward Class? Are his
children in India to be deprived of the benefit of Article16(4)? Situation may, however,
be different, if he rises so high economically as to become - say a factory owner himself.
In such a situation, his social status also rises. He himself would be in a position to
provide employment to others. In such a case, his income is merely a measure of his
social status. Even otherwise there are several practical difficulties too in imposing an
income ceiling. For example, annual income of Rs. 36,000 may not count for much in a
city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India
anywhere. The line to be drawn must be a realistic one. Another question would be,
should such a line be uniform for the entire country or a given State or should it differ
from rural to urban areas and so on. Further, income from agriculture may be difficult to
assess and, therefore, in the case of agriculturists, the line may have to be drawn with
reference to the extent of holding. While the income of a person can be taken as a
measure of his social advancement, the limit to be prescribed should not be such as to
result in taking away with one hand what is given with the other. The income limit must
be such as to mean and signify social advancement. At the same time, it must be
recognised that there are certain positions, the occupants of which can be treated as
socially advanced without any further enquiry. For example, if a member of a
designated backward class becomes a member of I.A.S. or I.P.S. or any other All India
Service, his status in society (social status) rises; he is no longer socially
disadvantaged. His children get full opportunity to realise their potential. They are in no
way handicapped in the race of life. His salary is also such that he is above want. It is
but logical that in such a situation, his children are not given the benefit of reservation.
For by giving them the benefit of reservation, other disadvantaged members of that
backward class may be deprived of that benefit. It is then argued for the Respondents
that 'one swallow doesn't make the summer', and that merely because a few members
of a caste or class become socially advanced, the class/caste as such does not cease
to be backward. It is pointed out that Clause (4) or Article 16 aims at group
backwardness and not individual backwardness. While we agree that Clause (4) aims at
group backwardness, we feel that exclusion of such socially advanced members will
make the 'class' a truly backward class and would more appropriately serve the purpose
and object of Clause (4). (This discussion is confined to Other Backward Classes only
and has no relevance in the case of Scheduled Tribes and Scheduled Castes).
Keeping in mind all these considerations, we direct the Government of India to specify
the basis of exclusion - whether on the basis of income, extent of holding or otherwise -
of 'creamy layer'. This shall be done as early as possible, but not exceeding four
months. On such specification persons falling within the net of exclusionary rule shall
cease to be the members of the Other Backward Classes (covered by the expression
'backward class of citizens') for the purpose of Article 16(4). The impugned Office
Memorandums dated 13th August, 1990 and 25th September, 1991 shall be
implemented subject only to such specification and exclusion of socially advanced
persons from the backward classes contemplated by the said O.M. In other words, after
the expiry of four months from today, the implementation of the said O.M. shall be
subject to the exclusion of the 'creamy layer' in accordance with the criteria to be
specified by the Government of India and not otherwise.
(c) Whether a class should be situated similarly to the Scheduled Caste/Scheduled
Tribe for being qualified as a Backward Class?
87. In Balaji it was held "that the backward classes for whose improvement special
provision is contemplated by Article 15(4) are in the matter of their backwardness
comparable to Scheduled Castes and Scheduled Tribes." The correctness of this
observation is questioned by the counsel for the respondents. Reliance is placed upon
the observations of Chinnappa Reddy, J. in Vasant Kumar (at page 406) where, dealing
with the above observations in Balaji, the learned Judge said:

We do not think that these observations were meant to lay down any proposition that
the socially Backward Classes were those classes of people, whose conditions of life
were very nearly the same as those of the Scheduled Castes and Tribes....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.

88. We see no reason to qualify or restrict the meaning of the expression "backward
class of citizens" by saying that it means those other backward classes who are situated
similarly to Scheduled Castes and/or Scheduled Tribes. As pointed out in para 85, the
relevant language employed in both the clauses is different. Article 16(4) does not
expressly refer to Scheduled Castes or Scheduled Tribes; if so, there is no reason why
we should treat their backwardness as the standard backwardness for all those claiming
its protection. As a matter of fact, neither the several castes/groups/tribes within the
Scheduled Castes and Scheduled Tribes are similarly situated nor are the Scheduled
Castes and Scheduled Tribes similarly situated. If any group or class is situated
similarly to the Scheduled Castes, they may have a case for inclusion in that class but
there seems to be no basis either in fact or in principle for holding that other
classes/groups must be situated similarly to them for qualifying as backward classes.
There is no warrant to import any such a priori notions into the concept of Other
Backward Classes. At the same time, we think it appropriate to clarify that
backwardness, being a relative term, must in the context be judged by the general level
of advancement of the entire population of the country or the State, as the case may be.
More than this, it is difficult to say. How difficult is the process of ascertainment of
backwardness would be known if one peruses Chapters III and XI of Volume I of the
Mandal Commission Report along with Appendixes 12 and 21 in Volume II. It must be
left to the Commission/Authority appointed to identify the backward classes to evolve a
proper and relevant criteria and test the several groups, castes, classes and sections of
people against that criteria. If, in any case, a particular caste or class is wrongly
designated or not designated a backward class, it can always be questioned before a
court of law as well. We may add that relevancy of the criteria evolved by Mandal
Commission (Chapter XI) has not been questioned by any of the counsel before us.
Actual identification is a different matter, which we shall deal with elsewhere.
88A. We may now summarise our discussion under Question No. 3.(a) a caste can be
an quite often is a social class in India. If it is backward socially, it would be a backward
class for the purposes of Article 16(4). Among non-Hindus, there are several
occupational groups, sects and denominations, which for historical reasons are socially
backward. They too represent backward social collectives for the purposes of
Article 16(4). (b) Neither the Constitution nor the law prescribe the procedure or method
of identification of backward classes. Nor is it possible or advisable for the court to lay
down any such procedure or method. It must be left to the authority appointed to
identify. If can adopt such method/procedure as it thinks convenient and so long as its
survey covers the entire populace, no objection can be taken to it. Identification of the
backward classes can certainly be down with reference to castes among, and along
with, other groups, classes and sections of people. One can start the process with the
castes, wherever they are found, apply the criteria (evolved for determining
backwardness) and find out whether it satisfies the criteria. If it does - what emerges is
a "backward class of citizens" within the meaning of and for the purposes of
Article 16(4). Similar process can be adopted in the case of other occupational groups,
communities and classes, so as to cover the entire populace. The central idea and
overall objective should be to consider all available groups, sections and classes in
society. Since caste represents an existing, identifiable social group/class
encompassing an overwhelming majority of the country's population, one can well begin
with it and then go to other groups, sections and classes. (c) It is not necessary for a
class to be designated as a backward class that it is situated similarly to the Scheduled
Castes/Scheduled Tribes, (d) 'Creamy layer' can be, and must be, excluded. (e) It is not
correct to say that the backward class contemplated by Article 16(4) is limited to the
socially and educationally backward classes referred to in Article 15(4) and Article 340.
It is much wider. The test or requirement of social and educational backwardness
cannot be applied to Scheduled Castes and Scheduled Tribes, who indubitably fall
within the expression "backward class of citizens." The accent in Article16(4) appears to
be on social backwardness. Of course, social, educational and economic backwardness
are closely inter-twined in the Indian context. The classes contemplated by
Article 16(4) may be wider than those contemplated by Article 15(4).
Adequacy of Representation in the services under the State:
89. Not only should a class be a backward class for meriting reservations, it should also
be inadequately represented in the services under the State. The language of Clause
(4) makes it clear that the question whether a backward class of citizens is not
adequately represented in the services under the State is a matter within the subjective
satisfaction of the State. This is evident from the fact that the said requirement is
preceded by the words "in the opinion of the State". This opinion can be formed by the
State on its own, i.e., on the basis of the material it has in its possession already or it
may gather such material through a Commission/Committee, person or authority. All
that is required is, there must be some material upon which the opinion is formed.
Indeed, in this matter the court should show due deference to the opinion of the State,
which in the present context means the executive. The executive is supposed to know
the existing conditions in the society, drawn as it is from among the representatives of
the people in Parliament/Legislature. It does not, however, mean that the opinion
formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in
matters within subjective satisfaction of the executive are well and extensively stated in
Barium Chemicals v. Company Law Board MANU/SC/0037/1966 : [1967]1SCR898 ,
which need not be repeated here. Sufficed it to mention that the said principles apply
equally in the case of a constitutional provision like Article 16(4) which expressly places
the particular fact (inadequate representation) within the subjective judgment of the
State/executive.
Question 4: (a) Whether backward classes can be identified only and exclusively with
reference to the economic criterion:
90. It follow from the discussion under Question No. 3 that a backward class cannot be
determined only and exclusively with reference to economic criterion. It may be a
consideration or basis alongwith and in addition to social backwardness, but it can
never be the sole criterion. This is the view uniformly taken by this Court and we
respectfully agree with the same.
(b). Whether a backward class can be identified on the basis of occupation-cum-income
without reference to caste?
91. In Chitralekha, this Court held that such an identification is permissible. We see no
reason to differ with the said view inasmuch as this is but another method to find
socially backward classes. Indeed, this test in the Indian context is broadly the same as
the one adopted by the Mandal Commission. While answering Question 3(b), we said
that identification of backward classes can be done with reference to castes alongwith
other occupational groups, communities and classes. We did not say that that is the
only permissible method. Indeed, there may be some groups or classes in whose case
caste may not be relevant to all. For example, agricultural labourers,
Rickshawpullers/drivers, street-hawkers etc. may well qualify for being designated as
Backward Classes.
Question No. 5: Whether Backward Classes can be further divided into backward and
more backward categories?
92. In Balaji it was held "that the sub-classification made by the order between
Backward Classes and more backward classes does not appear to be justified under
Article 15(4). Article 15(4) authorises special provision being made for the really
backward classes. In introducing two categories of backward classes, what the
impugned order, in substance, purports to do is to devise measures for the benefit of all
the classes of citizens who are less advanced compared to the more advanced classes
in the State and that, in our opinion, is not the scope of Article 15(4). The result of the
method adopted by the impugned order is that nearly 90% of the population of the State
is treated as backward, and that illustrates how the order in fact divides the population
of the State into most advanced and the rest, and puts the latter into two categories of
backward and more backward. The classification of the two categories, therefore, is not
warranted by Article 15(4)." The correctness of this holding is questioned before us by
the counsel for the respondents. It is submitted that in principle there is no justification
for the said holding. It is submitted that even among backward classes there are some
who are more backward than the others and that the backwardness is not and cannot
be uniform throughout the country nor even within a State. In support of this contention,
the Respondents rely upon the observations of Chinnappa Reddy, J. in Vasant Kumar,
where the learned judge said:

We do not see why on principle there cannot be a classification into Backward Classes
and More Backward Classes, if both classes are not merely a little behind, but far far
behind the most advanced classes. In fact such a classification would be necessary to
help the More Backward Classes; otherwise those of the Backward Classes who might
be a little more advanced than the More Backward Classes might walk away with all the
seats.

92A. We are of the opinion that there is no constitutional or legal bar to a State
categorizing the backward classes as backward and more backward. We are not saying
that it ought to be done. We are concerned with the question if a State makes such a
categorisation, whether it would be invalid? We think not. Let us take the criteria
evolved by Mandal Commission. Any caste, group or class which scored eleven or more
points was treated as a backward class. Now, it is not as if all the several thousands of
castes/groups/classes scored identical points. There may be some
castes/groups/classes which have scored points between 20 to 22 and there may be
some who have scored points between eleven and thirteen. It cannot reasonably be
denied that there is no difference between these two sets of castes/groups/classes. To
give an illustration, take two occupational groups viz., gold-smiths and vaddes
(traditional stone-cutters in Andhra Pradesh) both included within Other Backward
Classes. None can deny that gold-smiths are far less backward than vaddes. If both of
them are grouped together and reservation provided, the inevitably result would be that
gold-smiths would take away all the reserved posts leaving none for vaddes. In such a
situation, a State may think it advisable to make a categorisation even among other
backward classes so as to ensure that the more backward among the backward classes
obtain the benefits intended for them. Where to draw the line and how to effect the sub-
classification is, however, a matter for the Commission and the State - and so long as it
is reasonably done, the Court may not intervene. In this connection, reference may be
made to the categorisation obtaining in Andhra Pradesh. The Backward Classes have
been divided into four categories. Group-A comprises of "Aboriginal tribes. Vimukta
jatis. Nomadic and semi-nomadic tribes etc.". Group-B comprises professional group
like tappers, weavers, carpenters, ironsmiths, goldsmiths, kamsalins etc. Group-C
pertains to "Scheduled Castes converts to Christianity and their progency", while Group-
D comprises of all other classes/communities/groups, which are not included in groups
A, B and C. The 25% vacancies reserved for backward classes are sub-divided
between them in proportion to their respective population. This categorisation was
justified in Balram [1972] 3 S.C.R. 247 AT 286. This is merely to show that even among
backward classes, there can be a sub-classification on a reasonable basis.
There is another way of looking at this issue. Article 16(4) recognises only one class
viz., "backward class of citizens". It does speak separately of Scheduled Castes and
Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that
Scheduled Castes and Scheduled Tribes are also included in the expression "backward
class of citizens" and that separate reservations can be provided in their favour. It is a
well-accepted phenomenon throughout the country. What is the logic behind it? It is that
if Scheduled Tribes, Scheduled Castes and Other Backward Classes are lumped
together, O.B.Cs. will take away all the vacancies leaving Scheduled Castes and
Scheduled Tribes high and dry. The same logic also warrants categorisation as
between more backward and backward. We do not mean to say - we may reiterate -
that this should be done. We are only saying that if a State chooses to do it, it is not
impermissible in law.
PART - V (QUESTION NOS. 6, 7 AND 8)
Question 6: To what extent can the reservation be made?

(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or
rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under Clause (4) of
Article 16or whether it takes in all types of reservations that can be provided under
Article 16?
(c) Further while applying 50% rule, if any, whether an year should be taken as a unit or
whether the total strength of the cadre should be looked to ?

93. In Balaji, a Constitution Bench of this Court rejected the argument that in the
absence of a limitation contained in Article 15(4), no limitation can be prescribed by the
court on the extent of reservation. It observed that a provision under Article 15(4) being
a "special provision" must be within reasonable limits. It may be appropriate to quote the
relevant holding from the judgment:

When Article 15(4) refers to the special provision for the advancement of certain classes
or Scheduled Castes or Scheduled Tribes, it must not be ignored that the provision
which is authorised to be made is a special provision; it is not a provision which is
exhaustive in character, so that in looking after the advancement of those classes, the
State would be justified in ignoring altogether the advancement of the rest of the
society. It is because the interests of the society at large would be served by promoting
the advancement of the weaker elements in the society that Article 15(4) authorises
special provision to be made. But if a provision which is in the nature of an exception
completely excludes the rest of the society, that clearly is outside the scope of
Article 15(4). It would be extremely unreasonable to assume that in enacting
Article 15(4) the Parliament intended to provide that where the advancement of the
Backward Classes or the Scheduled Castes and Tribes was concerned, the
fundamental rights of the citizens constituting the rest of the society were to be
completely and absolutely ignored....A Special provision contemplated by
Article 15(4) like reservation for posts and appointments contemplated by
Article16(4) must be within reasonable limits. The interests of weaker sections of society
which are a first charge on the State and the center have to be adjusted with the
interests of the community as a whole. The adjustment of these competing claims is
undoubtedly a difficult matter, but if under the guise of making a special provision, a
State reserves practically all the seats available in all the colleges, that clearly would be
adverting the object of Article 15(4). In this matter again, we are reluctant to say
definitely what would be a proper provision to make. Speaking generally and in a broad
way a special provision should be less than 50%; how much less than 50% would
depend upon the relevant prevailing circumstances in each case.

In Devadasan this rule of 50% was applied to a case arising under Article 16(4) and on
that basis the carry-forward rule was struck down. In Thomas, however the correctness
of this principle was questioned. Fazal Ali, J. observed:

This means that the reservation should be within the permissible limits and should not
be a cloak to fill all the posts belonging to a particular class of citizens and thus violate
Article 16(1) of the Constitution indirectly. At the same time Clause (4) of Article 16 does
not fix any limit on the power of the government to make reservation. Since Clause (4)
is a part of Article 16 of the Constitution it is manifest that the State cannot be allowed to
indulge in excessive reservation so as to defeat the policy contained in Article 16(1). As
to what would be a suitable reservation within permissible limits will depend upon the
facts and circumstances of each case and no hard and fast rule can be laid down, nor
can this matter be reduced to a mathematical formula so as to be adhered to in all
cases. Decided cases of this Court have no doubt laid down that the percentage of
reservation should not exceed 50%. As I read the authorities, this is however, a rule of
caution and does not exhaust all categories. Suppose for instance a State has a large
number of backward class of citizens which constitute 80% of the population and the
Government, in order to give them proper representation, reserves 80% of the jobs for
them can it be said that the percentage of reservation is bad and violates the
permissible limits of Clause (4) of Article 16? The answer must necessarily be in the
negative. The dominant object to this provision is to take steps to make inadequate
representation adequate.

Krishna Iyer, J. agreed with the view taken by Fazal Ali, J. in the following words:

I agree with my learned brother Fazal Ali, J. in the view that the arithmatical limit of 50%
in any one year set by some earlier rulings cannot perhaps be pressed too far. Overall
representation in a department does not depend on recruitment in a particular year, but
the total strength of a cadre. I agree with his construction of Article 16(4) and his view
about the carry forward' rule.
Mathew, J. did not specifically deal with this aspect but from the principles of
'proportional equality' and 'equality of results' espoused by the learned Judge, it is
argued that he did not accept the 50% rule. Beg, J. also did not refer to this rule but the
following sentence occurs in his judgment at pages 962 and 963:

If a reservation of posts under Article 16(4) for employees of backward classes could

include complete reservation of higher posts to which they could be promoted, about
which there could be no doubt now, I fail to see why it cannot be partial or for a part of
the duration of service and hedged round with the condition that a temporary promotion
would operate as a complete and confirmed promotion only if the temporary promotee
satisfies some tests within a given time.

Ray, C.J., did not dispute the correctness of the 50% rule but at the same time he
pointed out that this percentage should be applied to the entire service as a whole.
After the decision in Thomas, controversy arose whether the 50% rule enunciated in
Balaji stands overruled by Thomas or does it continue to be valid. In Vasant Kumar, two
learned judges came to precisely opposite conclusions on this question. Chinnappa
Reddy, J. held that Thomas has the effect of undoing the 50% rule in Balaji whereas
Venkataramiah, J. held that it does not.
94. It is argued before us that the observations on the said question in Thomas were
obiter and do not constitute a decision so as to have the effect of overruling Balaji.
Reliance is also placed upon the speech of Dr. Ambedkar in the Constituent Assembly,
where he said that reservation must be confined to a minority of seats (See para 28). It
is also pointed out that Krishna Iyer, J. who agreed with Fazal Ali, J. in Thomas on this
aspect, came back to, and affirmed, the 50% rule in Karamchari Sangh (at pp. 241 and
242). On the other hand, it is argued for the respondents that when the population of the
other backward classes is more than 50% of the total population, the reservation in their
favour (excluding Scheduled Castes and Scheduled Tribes) can also be 50%.
94A. We must, however, point out that Clause (4) speaks of adequate representation
and not proportionate representation. Adequate representation cannot be read as
proportionate representation. Principle of proportionate representation is accepted only
in Articles 330 and 332 of the Constitution and that too for a limited period. These
articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour
of Scheduled Tribes and Scheduled Castes proportionate to their population, but they
are only temporary and special provisions. It is therefore not possible to accept the
theory of proportionate representation though the proportion of population of backward
classes to the total population would certainly be relevant. Just as every power must be
exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should
also be exercised in a fair manner and within reasonably limits - and what is more
reasonable than to say that reservation under Clause (4) shall not exceed 50% of the
appointments or posts, barring certain extra-ordinary situations as explained hereinafter.
From this point of view, the 27% reservation provided by the impugned Memorandums
in favour of backward classes is well within the reasonable limits. Together with
reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference may be had to the Full Bench decision of the
Andhra Pradesh High Court in Narayan Rao v. State 1987 A.P. 53 , striking down the
enhancement of reservation from 25% to 44% for O.B.Cs. The said enhancement had
the effect of taking the total reservation under Article 16(4) to 65%.
It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and
equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the
very same objective. Clause (4) is a special provision - though not an exception to
Clause (1). Both the provisions have to be harmonised keeping in mind the fact that
both are but the restatements of the principle of equality enshrined in Article 14. The
provision under Article 16(4) - conceived in the interest of certain sections of society -
should be balanced against the guarantee of equality enshrined in Clause (1) of
Article 16 which is a guarantee held out to every citizen and to the entire society. It is
relevant to point out that Dr. Ambedkar himself contemplated reservation being
"confined to a minority of seats" (See his speech in Constituent Assembly, set out in
para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus
clear that reservation of a majority of seats was never envisaged by the founding
fathers. Nor are we satisfied that the present context requires us to depart from that
concept.
From the above discussion, the irresistible conclusion that follows is that the
reservations contemplated in Clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain
extraordinary situations inherent in the great diversity of this country and the people. It
might happen that in far-flung and remote areas the population inhabiting those areas
might, on account of their being out of the main stream of national life and in view of
conditions peculiar to and characteristical to them, need to be treated in a different way,
some relaxation in this strict rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out.
In this connection it is well to remember that the reservations under Article 16(4) do not
operate like a communal reservation. It may well happen that some members belonging
to, say Scheduled Castes get selected in the open competition field on the basis of their
own merit; they will not be counted against the quota reserved for Scheduled Castes;
they will be treated as open competition candidates.
95. We are also of the opinion that this rule of 50% applies only to reservations in favour
of backward classes made under Article 16(4). A little clarification is in order at this
juncture: all reservations are not of the same nature. There are two types of
reservations, which may, for the sake of convenience, be referred to as 'vertical
reservations' and 'horizontal reservations'. The reservations in favour of Scheduled
Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be
called vertical reservations whereas reservations in favour of physically handicapped
[under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal
reservations cut across the vertical reservations that is called inter-locking reservations.
To be more precise, suppose 3% of the vacancies are reserved in favour of physically
handicapped persons; this would be a reservation relatable to Clause (1) of Article 16.
The persons selected against this quota will be placed in the appropriate category; if he
belongs to S.C. category he will be placed in that quota by making necessary
adjustments; similarly, if he belongs to open competition (O.C.) category, he will be
placed in that category by making necessary adjustments. Even after providing for
these horizontal reservations, the percentage of reservations in favour of backward
class of citizens remains - and should remain - the same. This is how these reservations
are worked out in several States and there is no reason not to continue that procedure.
It is, however, made clear that the rule of 50% shall be applicable only to reservations
proper; they shall not be - indeed cannot be - applicable to exemptions, concessions or
relaxations, if any provided to 'Backward Class of Citizens' under Article 16(4).
96. The next aspect of this question is whether an year should be taken as the unit or
the total strength of the cadre, for the purpose of applying the 50% rule. Balaji does not
deal with this aspect but Devadasan (majority opinion) does. Mudholkar, J. speaking for
the majority says:

We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring
equality of opportunity for all citizens relating to employment, and to appointments to
any office under the State. This means that on every occasion for recruitment the State
should see that all citizens are treated equally. The guarantee is to each individual
citizen and, therefore, every citizen who is seeking employment or appointment to an
office under the State is entitled to be afforded an opportunity for seeking such
employment or appointment whenever it is intended to be filled. In order to effectuate
the guarantee each year of recruitment will have to be considered by itself and the
reservation for backward communities should not be so excessive as to create a
monopoly or to disturb unduly the legitimate claims of other communities.

On the other hand is the approach adopted by Ray, C.J. in Thomas. While not disputing
the correctness of the 50% rule he seems to apply it to the entire service as such. In our
opinion, the approach adopted by Ray, C.J. would not be consistent with Article 16.
True it is that the backward classes, who are victims of historical social injustice, which
has not ceased fully as yet, are not properly represented in the services under the State
but it may not be possible to redress this imbalance in one go, i.e., in a year or two. The
position can be better explained by taking an illustration. Take a unit/service/cadre
comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled
Castes and Other Backward Classes is 50% which means that out of the 1000 posts
500 must be held by the members of these classes i.e., 270 by other backward classes,
150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us
say, the number of members of O.B.Cs. in the unit/service/category is only 50, a short
fall of 220. Similarly the number of members of Scheduled Castes and Scheduled
Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is
taken as a unit and the backlog is sought to be made up, then the open competition
channel has to be choked altogether for a number of years until the number of members
of all backward classes reaches 500, i.e., till the quota meant for each of them is filled
up. This may take quite a number of years because the number of vacancies arising
each year are not many. Meanwhile, the members of open competition category would
become age barred and ineligible. Equality of opportunity in their case would become a
mere mirage. It must be remembered that the equality of opportunity guaranteed by
Clause (1) is to each individual citizen of the country while Clause (4) contemplates
special provision being made in favour of socially disadvantaged classes. Both must be
balanced against each other. Neither should be allowed to eclipse the other. For the
above reason, we hold that for the purpose of applying the rule of 50% an year should
be taken as the unit and not the entire strength of the cadre, service or the unit, as the
case may be.
(d) Was Devadasan correctly decided?
97. The rule (providing for carry forward of unfilled reserved vacancies as modified in
1955) struck down in Devadasan read as follows:

3(a) If a sufficient number of candidate considered suitable by the recruiting authorities,

are not available from the communities for whom reservations are made in a particular
year, the unfilled vacancies should be treated as unreserved and filled by the best
available candidates. The number of reserved vacancies thus treated as unreserved will
be added as an additional quota to the number that would be reserved in the following
year in the normal course; and to the extent to which approved candidates are not
available in that year against this additional quota, a corresponding addition should be
made to the number of reserved vacancies in the second following year.

The facts of the case relevant for our purpose are the following:

(i) Reservation in favour of Scheduled Castes and Scheduled Tribes was 12 1/2% and
5% respectively;
(ii) In 1960, U.P.S.C. issued a notification proposing to hold a limited competitive
examination for promotion to the category of Assistant Superintendents in Central
Secretariat Services. 48 vacancies were to be filled, out of which 16 were unreserved
while 32 were reserved for Scheduled Castes/Scheduled Tribes, because of the
operation of the carry forward Rule: 28 vacancies were actually carried forward;
(iii) U.P.S.C. recommended 16 for unreserved and 30 for reserved vacancies - a total of
46;
(iv) the Government however appointed in all 45 persons, out of whom 29 belonged to
Scheduled Castes/Scheduled Tribes.

The said Rule and the appointments made on that basis were questioned mainly on the
ground that they violated the 50% rule enunciated in Balaji. It was submitted that by
virtue of the carry forward Rule, 65% of the vacancies for the year in question came to
be reserved for Scheduled Castes/Scheduled Tribes.
The majority, speaking through Mudholkar,J. upheld the contention of the petitioners
and struck down the Rule purporting to apply the principle of Balaji. The vice of the Rule
was pointed out in the following wards:

In order to appreciate better the import of this rule on recruitment, let us take an
illustration. Supposing in two successive years no candidate from amongst the
Scheduled Castes and Tribes is found to be qualified for filling any of the reserved
posts. Supposing also that in each of those two years the number of vacancies to be
filled in a particular service was 100. The reserved vacancies for each of those years
would, according to the Government resolution, be 18 for each year. Now, since these
vacancies were not filled in those years a total of 36 vacancies will be carried forward to
the third year. Supposing in the third year also the number of vacancies to be filled is
100. Then 18 vacancies out of these will also have to be reserved for members of the
Scheduled Castes and Tribes. By operation of the carry forward rule the vacancies to
be filled by persons from amongst the Scheduled Castes and Tribes would be 54 as
against 46 by persons from amongst the more advanced classes. The reservation
would thus be more than 50%.

98. We are of the respectful opinion that on its own reasonin

g, the decision in so far as it strikes down the Rule is not sustainable. The most that
could have been done in that case was to quash the appointments in excess of 50%,
inasmuch as, as a matter of fact, more than 50% of the vacancies for the year 1960
came to be reserved by virtue of the said Rule. But it would not be correct to presume
that that is the necessary and the only consequence of that rule. Let us take the very
illustration given at pp. 691-2, - namely 100 vacancies arising in three successive years
and 18% being the reservation quota - and examine. Take a case, where in the first
year, out of 18 reserved vacancies 9 are filled up and 9 are carried forward. Similarly, in
the second year again, 9 are filled up and another 9 are carried forward. Result would
be that in the third year, 9 + 9 + 18 = 36 (out of a total of 100) would be reserved which
would be far less than 50%; the rule in Balaji is not violated. But by striking down the
Rule itself, carrying forward of vacancies even in such a situation has become
impermissible, which appears to us indefensible in principle. We may also point out that
the premise made in Balaji and reiterated in Devadasan, to the effect that Clause (4) is
an exception to Clause (1) is no longer acceptable, having been given up in Thomas. It
is for this reason that in Karamchari Sangh, Krishna Iyer, J. explained Devadasan in the
following words:

In Devadasan's case the court went into the actuals, not into the hypotheticals. This is
most important. The Court actually verified the degree of deprivation of the 'equal
opportunity' right....
.... What is striking is that the Court did not take an academic view or make a notional
evaluation but checked up to satisfy itself about the seriousness of the infraction of the
right....Mathematical calculations, departing from realities of the case, may startle us
without justification, the apprehension being misplaced. All that we need say is that the
Railway Board shall take care to issue instructions to see that in no year shall SC&ST
candidates be actually appointed to substantially more than 50% of the promotional
posts. Some excess will not affect as mathematical precision is different in human
affairs, but substantial excess will void the selection. Subject to this rider or condition
that the 'carry forward' rule shall not result, in any given year, in the selection of
appointments of SC&ST candidates considerably in excess of 50% we uphold Annexure
I.

We are in respectful agreement with the above statement of law. Accordingly, we over-
rule the decision in Devadasan. We have already discussed and explained the 50% rule
in paras 93 to 96. The same position would apply in the case of carry forward rule as
well. We, however, agree that an year should be taken as the unit or basis, as the case
may be, for applying the rule of 50% and not the entire cadre strength.
99. We may reiterate that a carry forward rule need not necessarily be in the same
terms as the one found in Devadasan. A given rule may say that the unfilled reserved
vacancies shall not be filled by unreserved category candidates but shall be carried
forward as such for a period of three years. In such a case, a contention may be raised
that reserved posts remain a separate category altogether. In our opinion, however, the
result of application of carry forward rule, in whatever manner it is operated, should not
result in breach of 50% rule.
Question No, 7: Whether Clause (4) of Article 16 provides reservation only in the matter
of initial appointments/direct recruitment or does it contemplate and provide for
reservations being made in the matter of promotion as well?
100. The petitioner's submission is that the reservation of appointments or posts
contemplated by Clause (4) is only at the stage of entry into State service, i.e., direct
recruitment. It is submitted that providing for reservation thereafter in the matter of
promotion amounts to a double reservation and if such a provision is made at each
successive stage of promotion it would be a case of reservation being provided that
many times. It is also submitted that by providing reservation in the matter of promotion,
the member of a reserved category is enabled to frog-leap over his compatriots, which
was bound to generate acute heart - burning and may well lead to inefficiency in
administration. The members of the open competition category would come to think that
whatever be their record and performance, the members of reserved categories would
steal a march over them, irrespective of their performance and competence. Examples
are given how two persons (A) and (B), one belonging to O.C. category and the other
belonging to reserved category, having been appointed at the same time, the member
of the reserved category gets promoted earlier and how even in the promoted category
he jumps over the members of the O.C. category already there and gains a further
promotion and so on. This would generate, it is submitted, a feeling of dis-heartening
which kills the spirit of competition and develops a sense of dis-interestedness among
the members of O.C. category. It is pointed out that once persons coming from different
sources join a category or class, they must be treated alike thereafter in all matters
including promotions and that no distinction is permissible on the basis of their "birth-
mark". It is also pointed out that even the Constituent Assembly debates on draft
Article 10(3) do not indicate in any manner that it was supposed to extend to promotions
as well. It is further submitted that if Article 16(4) is construed as warranting reservation
even in the matter of promotion it would be contrary to the mandate of Article 335 viz.,
maintenance of efficiency in administration. It is submitted that such a provision would
amount to putting a premium upon in-efficiency. The members of the reserved category
would not work hard since they do not have to compete with all their colleagues but only
within the reserved category and further because they are assured of promotion
whether they work hard and efficiently or not. Such a course would also militate against
the goal of excellence referred to in Clause (J) of Article 51A (Fundamental Duties).
101. Sri K.Parasaran, learned Counsel appearing for the Union of India raised a
preliminary objection to the consideration of this question at all. According to him, this
question does not arise at present inasmuch as the impugned Memorandums do not
provide for reservation in the matter of promotion. They confine the reservation only to
direct recruitment. Learned counsel reiterated the well-established principle of
Constitutional Law that Constitutional questions should not be decided in vacuum and
that they must be decided only if and when they arise properly on the pleadings of a
given case and where it is found necessary to decide them for a proper decision of the
case. A large number of decisions of this Court and English courts are relied upon in
support of this proposition. If for any reason this Court decides to answer the said
question, says the counsel, the answer can only be one - which is already given by this
Court in a number of decisions namely, Rangachari, Hiralal and Karamchari Sangh. He
submits that an appointment to a post is made either by direct recruitment or by
promotion or by transfer. In all these cases it is but an appointment. If so,
Article 16(4) does undoubtedly take in and warrant making a provision for reservation in
the matter of promotion as well. Learned counsel commended to us the further
reasoning in Rangachari that adequate representation means not merely quantitative
representation but also qualitative representation. He says further that adequacy in
representation does not mean representation at the lowest level alone but at all levels in
the administration. Regarding the Constituent Assembly debates, his submission is that
those debates do not indicate that the said provision was not supposed to apply to
promotions. In such a situation, it is argued, plain words of the Constitution should be
given their due meaning and that there is no warrant for cutting down their ambit on the
basis of certain suppositions with respect to interpretation of Clauses (1), (2) and (4).
This is also the contention of the other counsel for respondents.
102. With respect to the preliminary objection of Sri Parasaran, there can hardly be any
dispute about the proposition espoused by him. But it must be remembered that
reference to this larger Bench was made with a view to "finally settle the legal position
relating to reservations". The idea was to have a final look at the said question by a
larger Bench to settle the law in an authoritative way. It is for this reason that we have
been persuaded to express ourselves on this question. But before we proceed to
express ourselves on the question, a few clarifications would be in order.
103. Reservation in the case of promotion is normally provided only where the
promotion is by selection, i.e., on the basis of merit. For, if the promotion is on the basis
of seniority, such a rule may not be called for; in such a case the position obtaining in
the lower category gets reflected in the higher category (promotion category) also.
Where, however, promotion is based on merit, it may happen that members of
backward classes may not get selected in the same proportion as is obtaining in the
lower category. With a view to ensure similar representation in the higher category also,
reservation is thought of even in the matter of promotion based on selection. This is, of
course, in addition to the provision for reservation at the entry (direct recruitment) level.
This was the position in Rangachari. Secondly, there may be a service/class/category,
to which appointment is made partly by direct recruitment and partly by promotion (i.e.,
promotion on the basis of merit). If no provision is made for reservation in promotions,
the backward class members may not be represented in this category to the extent
prescribed. We may give an illustration to explain what we are saying. Take the
category of Assistant Engineers in a particular service where 50% of the vacancies
arising in a year are filled up by direct recruitment and 50% by promotion (by selection
i.e., on merit basis) from among Junior Engineers. If provision for reservation is made
only in the matter of direct recruitment but not in promotions, the result may be that
members of backward classes (where quota, let us say, is 25%) would get in to that
extent only in the 50% direct recruitment quota but may not get in to that extent in the
balance 50% promotion quota. It is for this reason that reservation is thought of even in
the matter of promotions, particularly where promotions are on the basis of merit. The
question for our consideration, however, is whether Article 16(4) contemplates and
permits reservation only in the matter of direct recruitment or whether it also warrants
provision being made for reservation in the matter of promotions as well. For answering
this question, it would be appropriate, in the first instance, to examine the facts of and
dicta in Rangachari, Hiralal and Karamchari Sangh.
104. In Rangachari, validity of the circulars issued by the Railway administration
providing for reservation in favour of Scheduled Castes/Scheduled Tribes in promotions
(by selection) was questioned. The contention was that Article 16(4) does not take in or
comprehend reservation in the matter of promotions as well and that it is confined to
direct recruitment only. The Madras High Court agreed with this contention. It held that
the word "appointments" in Clause (4) did not denote promotion and further that the
word "posts" in the said clause referred to posts outside the cadre concerned. On
appeal, this Court reversed by a majority of 3:2, Gajendragadkar, J. speaking for the
majority enunciated certain propositions, of which the following are relevant for our
discussion:

(a) matters relating to employment [in Clause (1)] must include all matters in relation to
employment both prior, and subsequent, to the employment which are incidental to the
employment and form part of the terms and conditions of such employment.
(b) in regard to employment, like other terms and conditions associated with and
incidental to it, the promotion to a selection post is also included in the matters relating
to employment, and even in regard to such a promotion to a selection post all that
Article 16(1) guarantees is equality of opportunity to all citizens who enter service.
(c) The condition precedent for the exercise of the powers conferred by Article 16(4) is
that the State ought to be satisfied that any backward class of citizens is not adequately
represented in its services. This condition precedent may refer either to the numerical
inadequacy of representation in the services or even to the qualitative inadequacy of
representation. The advancement of the socially and educationally backward classes
requires not only that they should have adequate representation in the lowest rung of
services but that they should aspire to secure adequate representation in selection
posts in the services as well. In the context the expression 'adequately represented'
imports considerations of "size" as well as "values", numbers as well as the nature of
appointments held and so it involves not merely the numerical test but also the
qualitative one.
(b) in providing for the reservation of appointments or posts under Article 16(4), the
State has to take into consideration the claims of the members of the backward classes
consistently with the maintenance of the efficiency of administration. It must not be
forgotten that the efficiency of administration is of such paramount importance that it
would be unwise and impermissible to make any reservation at the cost of efficiency of
administration. That undoubtedly is the effect of Article 335. Reservation of
appointments or posts may theoretically and conceivably mean some impairment of
efficiency; but the risk involved in sacrificing efficiency of administration must always be
borne in mind when any State sets about making a provision for reservation of
appointments of posts.
105. In State of Punjab v. Hiralal, validity of an order made by the Government of
Punjab providing for reservation in promotion (in addition to initial recruitment) was
questioned. Though the High Court upheld the challenge, this Court (Shah, Hegde and
Grover, JJ.) reversed and upheld the validity of the Government order following
Rangachari.
106. Validity of a number of circulars issued by the Railway Administration was
questioned in Karamchari Sangh, a petition under Article 32. The experience gained
over the years disclosed that reservation of appointments/posts in favour of SC/STs,
though made both at the stage of initial recruitment and promotion was not achieving
the intended results, inasmuch as several posts meant for them remained unfilled by
them. Accordingly, the Administration issued several circulars from time to time tending
further concessions and other measures to ensure that members of these categories
avail of the posts reserved for them fully. (The original circular is referred to in the
judgment as Ann.-F, whose validity was upheld in Rangachari itself. The other circulars
are referred to as Annexures I, H, J and K). These circulars contemplated (i) giving one
grade higher to SC/ST candidates than is assignable to an employee (ii) carrying
forward vacancies for a period of three years and (iii) provision for in-service training
and coaching (after promotion) to raise the level of efficiency of SC/ST employees who
were directed to be promoted on a temporary basis for a specified period, even if they
did not obtain the requisite places. The contention of the writ petitioners was that these
circulars, being inconsistent with the mandate of Article 335, are bad. Rangachari was
sought to be reopened by arguing that Article 16(4) does not take in reservation in the
matter of promotion. The Division Bench (Krishna Iyer, Pathak and Chinnappa Reddy,
JJ.) not only refused to re-open Rangachari but also repelled the attack upon the
circulars. It was held that no dilution of efficiency in administration resulted from the
implementation of the circulars inasmuch as they preserved the criteria of eligibility and
minimum efficiency required and also provided for in-service training and coaching to
correct the deficiencies, if any. The carry forward rule was also upheld subject to the
condition that the operation of the rule shall not result, in any given year,
selection/appointment of Scheduled Caste/Scheduled Tribe candidates in excess of
50%.
In Comptroller and Auditor General v. K.S. Jagannathan MANU/SC/0066/1986 :
[1986]2SCR17 , it was held:

It is now well settled by decisions of this Court that the reservation in favour of backward
classes of citizens including the members of the Scheduled Castes and the Scheduled
Tribes, as contemplated by Article 16(4) can be made not merely in respect of initial
recruitment but also in respect of posts to which promotions are to be made. [See for
instance: MANU/SC/0066/1970 : [1971]3SCR267 and Akhil Bhartiya Soshit Karamchari
Sangh v. U.O.I. [1981] 1 S.C. 246

107. We find it difficult to agree with the view in Rangachari that

Article 16(4) contemplates or permits reservation in promotions as well. It is true that the
expression "appointment" takes in appointment by direct recruitment, appointment by
promotion and appointment by transfer. It may also be that Article 16(4)contemplates
not merely quantitative but also qualitative support to backward class of citizens. But
this question has not to be answered on a reading of Article 16(4) alone but on a
combined reading of Article 16(4)and Article 335. In Rangachari this fact was
acknowledged but explained away on a basis which, with great respect to the learned
Judges who constituted the majority - does not appear to be acceptable. The
propositions emerging from the majority opinion in Rangachari have been set out in
Para 104. Under proposition (d) (as set out in para 104), the majority does say that "in
providing for the reservation of appointments or posts under Article 16(4), the State has
to take into consideration the claims of the members of the backward classes
consistently with the maintenance of the efficiency of administration. It must not be
forgotten that the efficiency of administration is of such paramount importance that it
would be unwise and impermissible to make any reservation at the cost of efficiency of
administration. That undoubtedly is the effect of Article 335. Reservation of
appointments or posts may theoretically and conceivably means some impairment of
efficiency;" but then it explains it away by saying "but the risk involved in sacrificing
efficiency of administration must always be borne in mind when any State sets about
making a provision for reservation of appointments of posts." We see no justification to
multiply 'the risk', which would be the consequence of holding that reservation can be
provided even in the matter of promotion. While it is certainly just to say that a handicap
should be given to backward class of citizens at the stage of initial appointment, it would
be a serious and unacceptable inroad into the rule of equality of opportunity to say that
such a handicap should be provided at every stage of promotion throughout their
career. That would mean creation of a permanent separate category apart from the
mainstream - a vertical division of the administrative apparatus. The members of
reserved categories need not have to compete with others but only among themselves.
There would be no will to work, compete and excel among them. Whether they work or
not, they tend to think, their promotion is assured. This in turn is bound to generate a
feeling of despondence and 'heart-burning' among open competition members. All this
is bound to affect the efficiency of administration. Putting the members of backward
classes on a fast-track would necessarily result in leap-fogging and the deleterious
effects of "leap-fogging" need no illustration at our hands. At the initial stage of
recruitment reservation can be made in favour of backward class of citizens but once
they enter the service, efficiency of administration demands that these members too
compete with others and earn promotion like all others; no further distinction can be
made thereafter with reference to their "birth-mark", as one of the learned Judges of this
Court has said in another connection. They are expected to operate on equal footing
with others. Crutches cannot be provided throughout one's career. That would not be in
the interest of efficiency of administration nor in the larger interest of the nation. It is
wrong to think that by holding so, we are confining the backward class of citizens to the
lowest cadres. It is well-known that direct recruitment takes place at several higher
levels of administration and not merely at the level of Class-IV and Class-Ill. Direct
recruitment is provided even at the level of All India Services. Direct recruitment is
provided at the level of District Judges, to give an example nearer home. It may also be
noted that during the debates in the Constituent Assembly, none referred to reservation
in promotions; it does not appear to have been within their contemplation.
It is true that Rangachari has been the law for more than 30 years and that attempts to
re-open the issue were repelled in Karamchari Sangh. It may equally be true that on the
basis of that decision, reservation may have been provided in the matter of promotion in
some of the Central and State services but we are convinced that the majority opinion in
Rangachari, to the extent it holds, that Article 16(4) permits reservation even in the
matter of promotion, is not sustainable in principle and ought to be departed from.
However, taking into consideration all the circumstances, we direct that our decision on
this question shall operate only prospectively and shall not affect promotions already
made, whether on temporary, officiating or regular/permanent basis. It is further directed
that wherever reservations are already provided in the matter of promotion - be it
Central Services or State Services, or for that matter services under any corporation,
authority or body falling under the definition of 'State' in Article 12-such reservations
shall continue in operation for a period of five years from this day. Within this period, it
would be open to the appropriate authorities to revise modify or reissue the relevant
Rules to ensure the achievement of the objective of Article 16(4). If any authority thinks
that for ensuring adequate representation of 'backward class of citizens' in any service,
class or category, it is necessary to provide for direct recruitment therein, it shall be
open to it do so.
A purist or a legal theoretician may find this direction a little illogical. We can only
answer them in the words of Lord Roskill. In his presidential address to the Bentham
Club at University College of London on February 29, 1984 on the subject "Law Lords,
Reactionaries or Reformers?", the learned Law Lord said:

Legal policy now stands enthroned and will I hope remain one of the foremost
considerations governing the development by the House of Lords of the common law.
What direction should this development now take? I can think of several occasions upon
which we have all said to ourselves "this case requires a policy decision - what is the
right policy decision?" The answer is, and I hope will hereafter be, to follow that route
which is most consonant with the current needs of the society, and which will be seen to
be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords
will continue to be the targets for those academic lawyers who will seek intellectual
perfection rather than imperfect pragmatism. But much of the common law and virtually
all criminal law, distasteful as it may be to some to have to acknowledge it, is a blunt
instrument by means of which human beings, whether they like it or not, are governed
and subject to which they are required to live, and blunt instruments are rarely perfect
intellectually or otherwise. By definition they operate bluntly and not sharply.

We must also make it clear that it would not be impermissible for the State to extend
concessions and relaxations to members of reserved categories in the matter of
promotion without compromising the efficiency of the administration. The relaxation
concerned in Thomas and the concessions namely carrying forward of vacancies and
provisions for in-service coaching/training in Karamchari Sangh are instances of such
concessions and relaxations. However, it would not be permissible to prescribe lower
qualifying marks or a lesser level of evaluation for the members of reserved categories
since that would compromise the efficiency of administration. We reiterate that while it
may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for
the O.B.Cs., S.Cs. and S.Ts. consistent with the efficiency of administration and the
nature of duties attaching to the office concerned - in the matter of direct recruitment,
such a course would not be permissible in the matter of promotions for the reasons
recorded hereinabove.
Question No. 8: Whether Reservations are anti-meritarian?
108. In Balaji and other cases, it was assumed that reservations are necessarily anti-
meritarian. For example, in Janaki Prasad Parimoo it was observed, "it is implicit in the
idea of reservation that a less meritorious person be preferred to another who is more
meritorious." To the same effect is the opinion of Khanna, J. in Thomas, though it is a
minority opinion. Even Subba Rao, J. who did not agree with this view did recognize
some force in it. In his dissenting opinion in Devadasan, While holding that there is no
conflict between Article 16(4) and Article 335, he did say, "it is inevitable in the nature of
reservation that there will be a lowering of standards to some extent", but, he said, on
that account the provision cannot be said to be bad, inasmuch as in that case, the State
had, as a matter of fact, prescribed minimum qualifications, and only those possessing
such minimum qualifications were appointed. This view was, however, not accepted by
Krishna Iyer, J. in Thomas. He said "efficiency means, in terms of good government, not
marks in examinations only, but responsible and responsive service to the people. A
chaotic genius is a grave danger to public administration. The inputs of efficiency rule
include a sense of belonging and of accountability (not pejoratively used) if its
composition takes in also the weaker segments of "We, the people of India". No other
understanding can reconcile the claim of a radical present and the hangover of the
unjust past." A similar view was expressed in Vasant Kumer by Chinnappa Reddy, J.
The learned judge said "the mere securing of high marks at an examination may not
necessarily mark out a good administrator. An efficient administrator, one takes it, must
be one who possesses among other qualities the capacity to understand with sympathy
and, therefore, to tackle bravely the problems of a large segment of population
constituting the weaker sections of the people. And, who better than the ones belonging
to those very sections? Why not ask ourselves why 35 years after Independence, 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."
109. It is submitted by the learned Counsel for petitioners that reservation necessarily
means appointment of less meritorious persons, which in turn leads to lowering of
efficiency of administration. The submission, therefore, is that reservation should be
confined to a small minority of appointments/posts, - in any event, to not more than
30%, the figure referred to in the speech of Dr. Ambedkar in the Constituent Assembly.
The mandate of Article 335, it is argued, implies that reservations should be so operated
as not to affect the efficiency of administration. Even Article 16 and the directive of
Article 46, it is said, should be read subject to the aforesaid mandate of Article 335.
110. The respondents, on the other hand, contend that the marks obtained at the
examination/test/interview at the stage of entry into service is not an indicia of the
inherent merit of a candidate. They rely upon the opinion of Douglas,J. in Defunis where
the learned Judge illustrates the said aspect by giving example of a candidate coming
from disadvantaged sections of society and yet obtaining reasonably good scores - thus
manifesting his "promise and potential" - vis-a-vis a candidate from a higher strata
obtaining higher scores. (His opinion is referred to in para 44). On account of the
disadvantages suffered by them and the lack of opportunities, - the Respondents say -
members of backward classes of citizens may not score equally with the members of
socially advanced classes at the inception but in course of time, they would. It would be
fallacious to presume that nature has endowed intelligence only to the members of the
forward classes. It is to be found everywhere. It only requires an opportunity to prove
itself. The directive in Article 46 must be understood and implemented keeping in view
these aspects, say the Respondents.
111. We do not think it necessary to express ourselves at any length on the correctness
or otherwise of the opposing points of view referred to above. (It is, however, necessary
to point out that the mandate - if it can be called that - of Article 335 is to take the claims
of members of SC/ST into consideration, consistent with the maintenance of efficiency
of administration. It would be a misreading of Article to say that the mandate is
maintenance of efficiency of administration.) May be, efficiency, competence and merit
are not synonymous concepts; May be, it is wrong to treat merit as synonymous with
efficiency in administration and that merit is but a component of the efficiency of an
administrator. Even so, the relevance and significance of merit at the stage of initial
recruitment cannot be ignored. It cannot also be ignored that the very idea of
reservation implies selection of a less meritorious person. At the same time, we
recognise that this much cost has to be paid, if the constitutional promise of social
justice is to be redeemed. We also firmly believe that given an opportunity, members of
these classes are bound to overcome their initial disadvantages and would compete
with - and may, in some cases, excel members of open competitor candidates. It is
undeniable that nature has endowed merit upon members of backward classes as much
as it has endowed upon members of other classes and that what is required is an
opportunity to prove it. It may not, therefore, be said that reservations are anti meritian.
Merit there is even among the reserved candidates and the small difference, that may
be allowed at the stage of initial recruitment is bound to disappear in course of time.
These members too will compete with and improve their efficiency alongwith others.
Having said this, we must append a note of clarification. In some cases arising under
Article 15, this Court has upheld the removal of minimum qualifying marks, in the case
of Scheduled Caste/Scheduled Tribe candidates, in the matter of admission to medical
courses. For example, in State of M.P. v. Nivedita Jain MANU/SC/0093/1981 :
[1982]1SCR759 admission to medical course was regulated by an entrance test (called
Pre-Medical Test). For general candidates, the minimum qualifying marks were 50% in
the aggregate and 33% in each subject. For Scheduled Caste/Scheduled Tribe
candidates, however, it was 40% and 30% respectively. On finding that Scheduled
Cast/Schedule Tribe candidates equal to the number of the seats reserved for them did
not qualify on the above standard, the Government did away with the said minimum
standard altogether. The Government's action was challenged in this Court but was
upheld. Since it was a case under Article 15,Article 335 had no relevance and was not
applied. But in the case of Article 16, Article 335 would be relevant and any order on the
lines of the order of the Government of M.P. (in Nivedita Jain) would not be permissible,
being inconsistent with the efficiency of administration. To wit, in the matter of
appointment of Medical Officers, the Government or the Public Service Commission
cannot say that there shall be no minimum qualifying marks for Scheduled
Castes/Scheduled Tribes candidates, while prescribing a minimum for others. It may be
permissible for the Government to prescribe a reasonably lower standard for Scheduled
Castes/Scheduled Tribes/Backward Classes - consistent with the requirements of
efficiency of administration - it would not be permissible not to prescribe any such
minimum standard at all. While prescribing the lower minimum standard for reserved
category, the nature of duties attached to the post and the interest of the general public
should also be kept in mind.
112. While on Article 335, we are of the opinion that there are certain services and
positions where either on account of the nature of duties attached to them or the level
(in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. In
such situations. It may not be advisable to provide for reservations. For example,
technical posts in research and development organisations/departments/institutions, in
specialities and super-specialties in medicine, engineering and other such courses in
physical sciences and mathematics, in defence services and in the establishments
connected therewith. Similarly, in the case of posts at the higher echelons e.g.,
Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and
Technicians in nuclear and space application, provision for reservation would not be
advisable.
As a matter of fact, the impugned Memorandum dated 13th August, 1990 applies the
rule of reservation to "civil posts and services under the Government of India" only,
which means that defence forces are excluded from the operation of the rule of
reservation though it may yet apply to civil posts in defence services. Be that as it may,
we are of the opinion that in certain services and in respect of certain posts, application
of the rule of reservation may not be advisable for the reason indicated hereinbefore.
Some of them are: (1) Defence Services including all technical posts therein but
excluding civil posts. (2) All technical posts in establishments engaged in Research and
Development including those connected with atomic energy and space and
establishments engaged in production of defence equipment; (3) Teaching posts of
Professors - and above, if any. (4) Posts in super-specialities in Medicine, engineering
and other scientific and technical subjects. (5) Posts of pilots (and co-pilots) in Indian
Airlines and Air India. The list given above is merely illustrative and not exhaustive. It is
for the Government of India to consider and specify the service and posts to which the
Rule of reservation shall not apply but on that account the implementation of the
impugned Office Memorandum dated 13th August, 1990 cannot be stayed or withheld.
We may point out that the services/posts enumerated above, on account of their nature
and duties attached, are such as call for highest level of intelligence, shill and
excellence, some of them are second level and third level posts in the ascending order.
Hence, they form a category apart. Reservation therein may not be consistent with
"efficiency of administration" contemplated by Article 335.
We may add that we see no particular relevance of Article 38(2) in this context.
Article 16(4) is also a measure to ensure equality of status besides equality of
opportunity.
PART - VI
(QUESTIONS 9, 10 & 11 AND OTHER MISCELLANEOUS 
QUESTIONS).
Question No. 9: Will the extent of judicial review be limited or restricted in regard to the
identification of Backward Classes and the percentage of reservations made for such
classes, to a demonstrably perverse identification or a demonstrably unreasonable
percentage?
113. It is enough to say on this question that there is no particular or special standard of
judicial scrutiny in matters arising under Article 16(4) or for that matter, under
Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the
subject matter, the nature of the right affected, the character of the legal and
constitutional provisions applicable and so on. The acts and orders of the State made
under Article16(4) do not enjoy any particular kind of immunity. At the same time, we
must say that court would normally extend due deference to the judgment and
discretion of the Executive - a co-equal wing - in these matters. The political executive,
drawn as it is from the people and represent as it does the majority will of the people, is
presumed to know the conditions and the needs of the people and hence its judgment in
matters within its judgment and discretion will be entitled to due weight. More than this,
it is neither possible nor desirable to say. It is not necessary to answer the question as
framed.
Question No. 10: Whether the distinction made in the second Memorandum between
'poorer sections' of the backward classes and others permissible under Article 16?
114. While dealing with Question No. 3(d), we held that that exclusion of 'creamy layer'
must be no the basis of social advancement (such advancement as renders them
misfits in the backward classes) and not on the basis of mere economic criteria. At the
same time, we held that income or the extent of property held by a person can be taken
as a measure of social advancement and on that basis 'creamy layer' of a given
caste/community/occupational group can be excluded to arrive at a true backward
class. Under Question No. 5, we held that it is not impermissible for the State to
categories backward classes into backward and more backward on the basis of their
relative social backwardness. We had also given the illustration of two occupational
groups, viz., gold-smiths and vaddes (traditional stone-cutters in Andhra Pradesh); both
are included within 'other backward classes'. If these two groups are lumped together
and a common reservation is made, the gold-smiths would walk away with all the
vacancies leaving none for vaddes. From the said point of view, it was observed, such
classification among the designated backward classes may indeed serve to help the
more backward among them to get their due. But the question now is whether Clause (i)
of the Office Memorandum dated 25th September, 1991 is sustainable in law. The said
clause provides for a preference in favour of "poorer sections" of the backward classes
over other members of the backward classes. On first impression, it may appear that
backward classes are classified into two sub-groups on the basis of economic criteria
alone and a preference provided in favour of the poorer sections of the backward
classes. In our considered opinion, however, such an interpretation would not be
consistent with the context in which the said expression is used and the spirit underlying
the clause nor would it further the objective it seeks to achieve. The object of the clause
is to provide a preference in favour of more backward among the "socially and
educationally backward classes". In other words, the expression 'poorer sections' was
meant to refer to those who are socially and economically more backward. The use of
the word 'poorer', in the context, is meant only as a measure of social backwardness.
(Of course, the Government is yet to notify which classes among the designated
backward classes are more socially backward, i.e., 'poorer sections'). Understood in this
sense, the said classification is not and cannot be termed as invalid either
constitutionally speaking or in law. The next question that arises is: what is the meaning
and context of the expression 'preference'? Having regard to the fact the backward
classes are sought to be divided into two sub-categories, viz., backward and more
backward, the expression 'preference' must be read down to mean an equitable
apportionment of the vacancies reserved (for backward classes) among them. The
object evidently could not have been to deprive the 'backward' altogether from benefit of
reservation, which could be the result if word 'preference' is read literally - if the 'more
backward' take away all the available vacancies/posts reserved for O.B.Cs., none would
remain for 'backward' among the O.B.Cs. It is for this reason that we are inclined to read
down the expression to mean an equitable apportionment. This, in our opinion, is the
proper and reasonable way of understanding the expression preference in the context in
which it occurs. By giving the above interpretation, we would be effectuating the
underlying purpose and the true insertion behind the clause.
It shall be open to the Government to notify which classes among the several
designated other backward classes are more backward for the purposes of this clause
and the apportionment of reserved vacancies/posts among 'backward' and "more
backward". On such notification the clause will become operational.
Question No. 11: Whether the reservation of 10% of the posts in favour of 'other
economically backward sections of the people who are not covered by any of the
existing schemes of the reservations' made by the Office Memorandum dated 25.9.1991
permissible under Article 16?
115. This clause provides for a 10% reservation (in appointments/posts) in favour of
economically backward sections among the open competition (non-reserved) category.
Though the criteria is not yet evolved by the Government of India, it is obvious that the
basis is either the income of a person and/or the extent of property held by him. The
impugned Memorandum does not say whether this classification is made under Clause
(4) or Clause (1) of Article 16. Evidently, this classification among a category outside
Clause (4) of Article 16 is not and cannot be related to Clause (4) of Article 16. If at all, it
is relatable to Clause (1). Even so, we find it difficult to sustain. Reservation of 10% of
the vacancies among open competition candidates on the basis of income/property-
holding means exclusion of those above the demarcating line from those 10% seats.
The question is whether this is constitutionally permissible? We think not. It may not be
permissible to debar a citizen from being considered for appointment to an office under
the State solely on the basis of his income or property-holding. Since the employment
under the State is really conceived to serve the people (that it may also be a source of
Livelihood is secondary) no such bar can be created. Any such bar would be
inconsistent with the guarantee of equal opportunity held out by Clause (1) of Article 16.
On this ground alone, the said clause in the Office Memorandum dated 25.5.1991 fails
and is accordingly declared as such.

THE CONCEPT OF POSITIVE ACTION AND POSITIVE DISCRIMINATION

116. Dr. Rajiv Dhawan describes Article 15(4) as a provision envisaging programmes of
positive action and Article 16(4) as a provision warranting programmes of positive
discrimination. We are afraid we may not be able to fit these provisions into this kind of
compartmentalisation in the context and scheme of our constitutional provisions. By
now, it is well settled that reservations in educational institutions and other walks of life
can be provided under Article 15(4) just as reservations can be provided in services
under Article 16(4). If so, it would not be correct to confine Article 15(4) to programmes
of positive action alone. Article 15(4) is wider than Article16(4) inasmuch as several
kinds of positive action programmes can also be evolved and implemented thereunder
(in addition to reservations) to improve the conditions of SEBCs., Scheduled Castes and
Scheduled Tribes, whereas Article 16(4) speaks only of one type of remedial measure,
namely, reservation of appointments/posts. But it may not be entirely right to say that
Article 15(4) is a provision envisaging programmes of positive action. Indeed, even
programmes of positive action may sometimes involve a degree of discrimination. For
example, if a special residential school is established for Scheduled Tribes or
Scheduled Castes at State expense, it is a discrimination against other students, upon
whose education a far lesser amount is being spent by the State. Or for that matter,
take the very American cases - Fullilove or Metro Broadcasting Can it be said that they
do not involve any discrimination? They do. It is another matter that such discrimination
is not unconstitutional for the reason that it is designed to achieve an important
governmental objective.

DESIRABILITY OF A PERMANENT STATUTORY BODY TO EXAMINE COMPLAINTS

OF OVER INCLUSION/UNDER INCLUSION.

117. We are of the considered view that there ought to be a permanent body, in the
nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-
inclusion of groups, classes and sections in the lists of Other Backward Classes can be
made. Such body must be empowered to examine complaints of the said nature and
pass appropriate orders. Its advice/opinion should ordinarily be binding upon the
Government. Where, however, the Government does not agree with its
recommendation, it must record its reasons therefor. Even it any new class/group is
proposed to be included among the other backward classes, such matter must also be
referred to the said body in the first instance and action taken on the basis of its
recommendation. The body must be composed of experts in the field, both official and
non-official, and must be vested with the necessary powers to make a proper and
effective inquirey. It is equally desirable that each State constitutes such a body, which
step would go a long way in redressing genuine grievances. Such a body can be
created under Clause (4) of Article 16 itself - or under Article 16(4) read with
Article 340 - as a concomitant of the power to identify and specify backward class of
citizens, in whose favour reservations are to be provided. We direct that such a body be
constituted both at Central level and at the level of the States within four months from
today. They should become immediately operational and be in a position to entertain
and examine forthwith complaints and matters of the nature aforementioned, if any,
received. It should be open to the Government of India and the respective State
Governments to devise the procedure to be followed by such body. The body or bodies
so created can also be consulted in the matter of periodic revision of lists of O.B.Cs. As
suggested by Chandrachud, CJ. in Vasant Kumar, there should be a periodic revision of
these lists to exclude those who have ceased to be backward or for inclusion of new
classes, as the case may be.

SHOULD THE MATTER GO BACK TO Constitution BENCH TO GO INTO THE

DEFECTS OF THE MANDAL COMMISSION REPORT.

118. Now that we have answered all the questions raised for our consideration,
question new arises, whether in view of the answers given and directions being given by
us, is it necessary to send back the matter to the Five-Judge Bench to consider whether
the investigation and survey done, and conclusions arrived at, by the Mandal
Commission are contrary to law and if so, whether the impugned Office Memorandums,
based as they are on the report of the said Commission, can be sustained? We think
not. This is not a case where the Five-Judge Bench framed certain questions and
referred them to this Bench. All the matters as such were placed before this Bench for
disposal. During the course of hearing, however, when some counsel wanted to take us
into details of castes/groups/classes which, according to them, have been wrongly
included or excluded, as the case may be, we refused to go into those details saying
that those details can be gone into before the Five-Judge Bench later. Otherwise, we
heard the counsel fully on the alleged illegalities in the approach and methodology
adopted by the Commission. The written arguments bear them out. We shall notice the
criticism first and then answer the question posed at the inception of this para.
118A. The first and foremost criticism levelled against the approach and the procedure
adopted by Mandal Commission in that the Mandal Commission has adopted caste and
caste alone as the basis of its approach throughout. On this count alone, it is argued,
the entire report of the Commission is vitiated. It is pointed out that in its very first letter
dated 25th April, 1979 (Appendix VII at page 91-Vol. 2) addressed to all the Ministries
and Departments of the Central Government, the Commission has prescribed the
following test for determining the socially and educationally backward classes:

(a) In respect of employees belonging to the Hindu communities

(i) an employee will be deemed to be socially backward if he does not belong to any of
the three twice-born (Dvij) 'Varnas' i.e., he is neither a Brahmin, nor a Kshatriya/nor a
Vaishya; and
(ii) he will be deemed to be educationally backward if neither his father nor his grant
father has studied beyond the primary level.

(b) Regarding the non-Hindu Communities

(i) an employee will be deemed to be socially backward if either

(1) he is a convert from those Hindu communities which have been defined as socially
backward as per para 4(a)(i) above, or
(2) in case he is not such a convert, his parental income is below the prevalent poverty
line, i.e., Rs. 71 per head per month.

(ii) he will be deemed to be educationally backward if neither his father nor his grand
father had studied beyond the primary level.

Serious objection is taken to the above criteria. Treating all the Hindus not belonging to
three upper castes as socially and educationally backward classes, it is submitted, is
faulty to the core. In the case of non-Hindus, the prescription of income limit is said to
be arbitrary. The criteria for identifying backward classes must be uniform for the entire
population; it cannot vary from religion to religion. This shows, says the counsel, the
impropriety and impermissibility of adopting the caste as the basis of identification, since
castes exist only in the Hindu religion and not in others. On the basis of the statements
made in Chapters IV and V, it is submitted that the Commission was obsessed by caste
and was blind to all other determinants. It is also pointed out that the Survey done by
the Commission is cursory, totally inadequate and faulty. According to the petitioners,
the survey must be an exhaustive one like the one done by Venkataswamy Commission
in Karnataka, which also forms the basis of Justice Chinnappa Reddy Commission
Report. Carrying out the Survey to cover merely two villages and one urban block in
each District is not likely to disclose a true picture since it does not represent survey of
even one percent of the population. Objection is also taken to use of personal
knowledge and also to reliance upon lists of backward classes prepared by State
Governments. It is repeatedly urged that the survey done by the Commission cannot be
called a scientific one, which has led to discovery of as many as 3,743 castes and their
identification as socially and educationally backward classes. This is a steep increase
over Kaka Kalelkar Commission, according to which, the number of S.E.B.Cs. was only
2,733. It is pointed out further that certain castes which obtained less than 11 points on
being tested against the criteria evolved by the Commission are included among the
backward classes. Conversely, certain castes which obtained 11 or more points are yet
excluded from the list of backward classes. It is urged that the caste based approach
adopted by the Commission has practically divided the nation into a forward section and
a backward section. If Scheduled Castes and Scheduled Tribes are also added to the
Other Backward Classes, more than 81 per cent of the population gets designated as
backward. But for the decision in Balaji, it is submitted, the Commission would certainly
have recommended reservation of 52 per cent of the appointments/posts in favour of
the backward classes. The Commission was actuated by malice towards upper castes
and has submitted an unbalanced, unjust and unconstitutional report, it is argued.
Respondent's counsel, on the other hand, have refuted each and every contention of
the petitioners. According to them, the criteria evolved, the methodology adopted,
identification made and lists prepared are all perfectly valid and legal. The Union of
India, while justifying the Report, has taken the stand that even if there are any errors or
inadequacies in the work and report of the Commission, it is no ground for throwing out
the report altogether, more particularly when the Government of India has taken care by
'marrying' the Mandal lists with the State lists. If any errors are brought to the notice of
the Government, Sri Parasaran says, the Government will certainly look into them and
rectify them, if satisfied about the error.
119. Before we decide to answer the question, it is necessary to point out that each and
every defect, if any, in the working and Report of the Mandal Commission does not
automatically vitiate the impugned Office Memorandums. It has to be shown further that
that particular defect has crept into the Office Memorandum as well. In addition to the
above, the following factors must also be kept in mind:

(a) The Mandal Commission Report has not been accepted by the Government of India
in its fullness, nor has the Government accepted the list of Other Backward Classes
Prepared by it in its entirety. What is now in issue is not the validity of the Report but the
validity of the impugned Office Memorandums issued on the basis of the Report. The
First Memorandum expressly directs that only those classes will be treated as backward
classes for the purposes of Article16(4) as are common to both the Mandal List and the
respective State List. (It may be remembered that the Mandal Commission has
prepared the lists of Other Backward Classes State-wise). Almost every caste,
community and occupational group found in the State lists is also found in the
concerned State list prepared by Mandal Commission; Mandal lists contain many more
castes/occupational groups than the respective State lists. (It should indeed be rare that
a particular caste/group/class is included in the State list and is not included in the
Mandal list relating to that State. In such a case, of course, such caste/group/class
would not be treated as an O.B.C. under the Office Memorandum dated 13th August,
1990). In such a situtation, what the Office Memorandum dated 13th August, 1990 does
in effect is to enforce the respective state lists. In other words, the Government of India
has, for all practical purposes, adopted the respective State lists, as they obtained on
13th August, 1990. In this sense, the lists prepared by Mandal have no real significance
at present. The State lists were prepared both for the purposes of Article 16(4) as well
as Article 15(4). The following particulars furnished by the Union of India do establish
that these State lists have been prepared after due enquiry and investigation and have
stood the test of time and judicial scrutiny:
Basis of identification of SEBCs/OBCs in 
the States covered by O.M. of 13.8.1990.

S.No. Name of Whether State's list Status

States is based on report of
Commission/
Committee

1. 2. 3. 4.

1. Andhra Reports of the State's G.O. based on the

Pradesh Commission headed report of the Anantharam
by Shri K. M. Commission was upheld by
Anantharaman and the Supreme Court in
Shri Muralidhara Rao Balaram case (AIR 1972
(June, 1970 and SC 1375). The modified
August, 1982 list of OBCs based on the
respectively). report of Muralidhara Rao
Commission was upheld by
the A.P. High Court but the
increased quantum of
reservation from 25% to
44% was struck down
 (Judgment of 5-9-1986).
2. Bihar Commission set up Not challenged.
in 1971 under the
Chairmanship of Sri
Mungeri Lal.
3. Gujarat Commission headed
by Shri A. R. Bakshi,
Retd. High Court
Judge (Report of
Feb., 1976).
4. Goa No Commission/ The list was challenged in
Committee State the High Court in 1986 for
Government have quashing the G.O. and
notified 4 instead declare all the 19
communities as OBC communities
on their own. recommended by the
Mandal Commission as
OBCs. The High Court
rejected the petitioner's
claim on 10-3-88. The
matter is now before the
Supreme Court through
SLP No. 9813 of 1988.
5. Haryana Committees of 1951
and 1965. (In 1990
Gurnam Singh
Commission was
also set up and its
report accepted by
State Government).
6. Himachal Based on the list of Not challenged
Pradesh OBCs declared by
the erstwhile State
of Punjab for the
areas merged in the
State of Himachal
Pradesh in
November, 1966.
The list is now
extended to the
entire State.
The Karnataka High Court
struck down the inclusion
of certain communities in
Commission headed
the list of SEBCs. The
by Shri L. G.
7. Karnataka matter was then taken to
Havanuri (Report
the Supreme Court in the
ofNov. 75)
Vasanth Kumar's case.
(High Court judgment was
prior to Mandal report.)
(i) Commission
headed by Shri G.
The Kerala Govt. vide
Kumara Pillai set up
communication dt. 8-2-91
in 1964.
8. Kerala has intimated that the list
(ii) Commission
of OBCs has not been
headed by Shri N. P.
challenged.
Damodaran set up in
1967.
Mahajan
Commission (report
Madhya List stayed by M.P. High
9. of Dec. 1983) (when
Pradesh Court.
Mandal was working,
no State list)
10. Maharashtra Committee headed Not challenged
by Shri B. D.
Deshmukh (report of
 Jan. 1964)
Committees set up
in 1951 and 1965.
The latter
11. Punjab Not challenged
Committee was
headed by Shri Brish
Bhan.
(i) Commission
headed by ShriA. N.
Sattanathan set up
The revised list prepared
in 1969. 
12. Tamil Nadu by the Ambasankar
(ii) Commission
Commission has been
headed by Shri J. A.
challenged in the
Ambasankar (report
of Feb. 1985)
Supreme Court vide WP
Commission headed
No. 1 of 1987 which is
by Shri Chhedi Lal
13. Uttar Pradesh pending Status report not
Sathi (Report of
received from State
1977).
Government.

Even if in one or two cases (e.g., Goa), the list is prepared without appointing a
Commission, it cannot be said to be bad on that account. The Government, which drew
up the list, must be presumed to be aware of the conditions obtaining in their State/area.
Unless so held by any competent court - or the permanent mechanism (in the nature of
a Commission) directed to be created herewith holds otherwise - the lists must be
deemed to be valid and enforceable.
At the same time, we think it necessary to make the following clarification: It is true that
the Government of India has adopted the State lists obtaining as on 13th August, 1990
for its own purposes but that does not mean that those lists are meant to be sacrosanct
and unalterable. There may be cases where commissions appointees by the State
Government may have, in their reports, recommended modification of such lists by
deletion or addition of certain castes, communities and classes. Wherever such
commission reports are available, the State Government is bound to look into them and
take action on that basis with reasonable promptitude. If the State Government effects
any modification or alteration by way of deletions or additions, the same shall be
intimated to the Government of India forthwith which shall take appropriate action on
that basis and make necessary changes in its own list relating to that State. Further, it
shall be equally open to, indeed the duty of, the Government of India - since it has
adopted the existing State lists - to look into the reports of such commission, if any, and
pass its own orders, independent of any action by the State Government, thereon with
reasonable promptitude by way of modification or alteration. It shall be open to the
Government of India to make such modification/alteration in the lists adopted by way of
additions or deletions, as it thinks appropriate on the basis of the Reports of the
Commission(s). This direction, in our opinion, safe guards against perpetuation of any
errors in the State lists and ensures rectification of those lists with reasonable
promptitude on the basis of the reports of the Commission already submitted, if any.
This course may be adopted de hors the reference to or advice of the permanent
mechanism (by way of Commission) which we have directed to be created at both
central and state level and with respect to which we have made appropriate directions
elsewhere.
(b) Strictly speaking, appointment of a Commission under Article 340 is not necessary
to identify the other backward classes. Article 340 does not say so. According to it, the
Commission is to be constituted "to investigate the conditions of socially and
educationally backward classes...and the difficulties under which they labour and to
make recommendations as to the steps that should be taken of the Union or any State
to remove such difficulties...." The Government could have, even without appointing a
Commission, specified the O.B.Cs., on the basis of such material as it may have had
before it (e.g., the lists prepared by various State Governments) and than appointed the
Commission to investigate their conditions and to make appropriate recommendations.
It is true that Mandal Commission was constituted "to determine the criteria for defining
the socially and educationaly backward classes" and the Commission did determine the
same. Even so, it is necessary to keep the above constitutional position in mind, - more
particularly in view of the veto given to State lists over the Mandal lists as explained in
the preceding sub-para. The criteria evolved by Mandal Commission for
defining/identifying the Other Backward Classes cannot be said to be irrelevant. May be
there are certain errors in actual exercise of identification, in the nature of over-inclusion
or under- inclusion, as the case may be. But in an exercise of such magnitude and
complexity, such errors are not uncommon. These errors cannot be made a basis for
rejecting either the relevance of the criteria evolved by the Commission or the entire
exercise of identification, It is one thing to say that these errors must be rectified by the
Government of India by evolving an appropriate mechanism and an altogether different
thing to say that on that account, the entire exercise becomes futile. There can never be
a perfect report. In human affairs, such as this, perfection is only an ideal - not an
attainable goal. More than forty years have passed by. So far, no reservations could be
made in favour of O.B.Cs. for one or the other reason in Central services though in
many States, such reservations are in force. Reservations in favour of O.B.Cs. are in
force in the States of Kerala, Tamil Nadu, Karnataka, Andhra Pradesh, Maharashtra,
Orissa, Bihar, Gujarat, Goa, Uttar Pradesh, Punjab, Haryana and Himachal Pradesh
among others. In Madhya Pradesh, a list of O.B.Cs. was prepared on the basis of
Mahajan Commission Report but it appears to have been stayed by the High Court.
(c) The direction made herein for Constitution of a permanent Commission to examine
complaints of over-inclusion or under-inclusion obviates the need of any such scrutiny
by this Court. We have directed Constitution of such Commission both at Central and
State level. Persons aggrieved can always approach them for appropriate redress. Such
Commission, which will have the power to receive evidence and enquire into disputed
questions of fact, can more appropriately decide such complaints than this Court under
Article 32.

120. In this view of the matter, it is unnecessary for us to express any opinion on the
correctness or adequacy of the exercise done by the Mandal Commission. (If and when
the Government of India notifies any caste/community/group/class from out of the
Mandal list, which caste etc., is not included in the appropriate State list, would the said
question fall for consideration. It is then that it would be necessary to deal with the
criticism against the Mandal Commission). For the same reason, it is unnecessary to
refer or deal with the arguments of the counsel for Union of India and the Respondents
in justification of the Mandal Commission Report.
Before parting with this aspect, we must say that identifying the impugned Office
Memorandums with the Mandal Commission report is basically erroneous. Such an
identification is bound to lead one into confusion. He would be missing the wood for the
trees. Instead of concentrating on the real issues, he would deviate into irrelevance and
imbalance. Mandal Commission report may have led to the passing of the impugned
Office Memorandum dated 13th August, 1990; it may have acted as the catalytic agent
in bringing into existence the reservation in favour of O.B.Cs. (loosely referred to as
SEBCs. in the O.M.) but the Office Memorandum dated 13th August, 1990 doesn't
incorporate the Mandal lists of O.B.Cs. as such. It incorporates, in truth and effect, the
State lists as explained hereinabove. In a social measure like the impugned one, the
court must give due regard to the judgment of the Executive, a co-equal wing of the
State and approach the measure in the spirit in which it is conceived. This very idea is
put forcefully by Joseph Raz (Fellow of Balliol College, Oxford) in his article "The Rule
of Law and its virtue" (1977) 93 Law Quarterly Review 195 at 211 in the following words:

... one should be wary of disqualifying the legal pursuit of major social goals in the name
of the rule of law. After all the rule of law is meant to enable the law to promote social
good, and should not be lightly used to show that it should not do so. Sacrificing too
many social goals on the altar of the rule of law may make the law barren and empty.

A note of clarification may be appended at this stage. We are told that in the State of
Madhya Pradesh a list of Other Backward Classes has been prepared but it has been
stayed by the High Court. The said stay, in our opinion, does not affect the operation of
the Office Memorandum dated 13th August, 1992 even with respect to the other
backward classes in Madhya Pradesh. What the said Office Memorandum does is to
import and adopt the said list for its own purposes i.e., for the purpose of making
reservations in central services in favour of other backward classes. In such a situation,
the stay of the operation of the said list by the State of Madhya Pradesh does have no
relevance to the importation and adoption of the said list into Office Memorandum dated
13th August, 1990.
PART - VII
121. We may summarise our answers to the various questions dealt with and answered
hereinabove:

(1)(a) It is not necessary that the 'provision' under Article 16(4) should necessarily be

made by the Parliament/Legislature. Such a provision can be made by the Executive
also. Local bodies, Statutory Corporations and other instrumentalities of the State falling
under Article 12 of the Constitution are themselves competent to make such a provision,
if so advised. (Para 55)
(b) An executive order making a provision under Article 16(4) is enforceable the
moment it is made and issued. (Para 56)
(2)(a) Clause (4) of Article 16 is not an exception to Clause (1). It is an instance and an
illustration of the classification inherent in Clause (1). (Para 57)
(b) Article 16(4) is exhaustive of the subject of reservation in favour of backward class of
citizens, as explained in this judgment. (Para 58)
(c) Reservations can also be provided under Clause (1) of Article 16. It is not confined
to extending of preferences, concessions or exemptions alone. These reservations, if
any, made under Clause (1) have to be so adjusted and implemented as not to exceed
the level of representation prescribed for 'backward class of citizens' - as explained in
this Judgment. (Para 60)
(3)(a) A caste can be and quite often is a social class in India. If it is backward socially,
it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there
are several occupational groups, sects and denominations, which for historical reasons,
are socially backward. They too represent backward social collectives for the purposes
of Article 16(4). (Paras 61 to 82)
(b) Neither the Constitution nor the law prescribes the procedure or method of
identification of backward classes. Nor is it possible or advisable for the court to lay
down any such procedure or method. It must be left to the authority appointed to
identify. It can adopt such method/procedure as it thinks convenient and so long as its
survey covers the entire populace, no objection can be taken to it. Identification of the
backward classes can certainly be done with reference to castes among, and along
with, other occupational groups, classes and sections of people. One can start the
process either with the occupational groups or with castes or with some other groups.
Thus one can start the process with the castes, wherever they are found, apply the
criteria (evolved for determining backwardness) and find out whether it satisfies the
criteria. If it does - what emerges is a "backward class of citizens" within the meaning of
and for the purposes of Article 16(4). Similar process can be adopted in the case of
other occupational groups, communities and classes, so as to cover the entire
populace. The central idea and overall objective should be to consider all available
groups, sections and classes in society. Since caste represents an existing, identifiable
social group/class encompassing an overwhelming majority of the country's population,
one can well begin with it and then go to other groups, sections and classes. (Paras 83
and 84)
(c) It is not necessary for a class to be designated as a backward class that it is situated
similarly to the Scheduled Castes/Scheduled Tribes. (Paras 87 and 88)
(d) 'Creamy layer' can be, and must be excluded. (Para 86)
(e) It is not correct to say that the backward class of citizens contemplated in
Article 16(4) is the same as the socially and educationally backward classes referred to
in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness.
Of course, social, educational and economic backwardness are closely inter-twined in
the Indian context. (Para 85)
(f) The adequacy of representation of a particular class in the services under the State
is a matter within the subjective satisfaction of the appropriate Government. The judicial
scrutiny in that behalf is the same as in other matters within the subjective satisfaction
of an authority. (Para 89)
(4)(a) A backward class of citizens cannot be identified only and exclusively with
reference to economic criteria. (Para 90)
(b) It is, of course, permissible for the Government or other authority to identify a
backward class of citizens on the basis of occupation-cum-income, without reference to
caste, if it is so advised. (Para 91).
(5) There is no constitutional bar to classify the backward classes of citizens into
backward and more backward categories. (Para 92)
(6)(a)&(b) The reservations contemplated in Clause (4) of Article 16 should not exceed
50%. While 50% shall be the rule, it is necessary not to put out of consideration certain
extraordinary situations inherent in the great diversity of this country and the people. It
might happen that in far-flung and remote areas the population inhabiting those areas
might, on account of their being out of the main-stream of national life and in view of the
conditions peculiar to and characteristic of them need to be treated in a different way,
some relaxation in this strict rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out.
(c) The rule of 50% should be applied to each year. It cannot be related to the total
strength of the class, category, service or cadre, as the case may be. (Para 96)
(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is
inconsistent with this judgment. (Paras 97 to 99)
(7) Article 16(4) does not permit provision for reservations in the matter of promotion.
This rule shall, however, have only prospective operation and shall not affect the
promotions already made, whether made on regular basis or on any other basis. We
direct that our decision on this question shall operate only prospectively and shall not
affect promotions already made, whether on temporary, officiating or regular/permanent
basis. If is further directed that wherever reservations are already provided in the matter
of promotion - be it Central Services or State Services, or for that matter services under
any Corporation, authority or body falling under the definition of 'State' in Article 12 -
such reservations may continue in operation for a period of five years from this day.
Within this period, it would be open to the appropriate authorities to revise, modify or re-
issue the relevant rules to ensure the achievement of the objective of Article 16(4). If
any authority thinks that for ensuring adequate representation of backward class of
citizens in any service, class or category, it is necessary to provide for direct recruitment
therein, it shall be open to it do so. (Ahmadi, J. expresses no opinion on this question
upholding the preliminary objection of Union of India). It would not be impermissible for
the State to extent concessions and relaxations to members of reserved categories in
the matter of promotion without compromising the efficiency of the administration.
(Paras 100 to 107).
(8) While the rule of reservation cannot be called anti-meritarion, there are certain
services and posts to which it may not be advisable to apply the rule of reservation.
(Paras 108 to 112)
(9) The distinction made in the impugned Office Memorandum dated 25th September,
1991 between 'poorer sections' and others among the backward classes is not invalid, if
the classification is understood and operated as based upon relative backwardness
among the several classes identified as other Backward classes, as explained in para
114 of this Judgment (Para 114). (11) The reservation of 10% of the posts in favour of
'other economically backward sections of the people who are not covered by any of the
existing schemes of the reservation' made in the impugned office memorandum dated
25.9.1991 is constitutionally invalid and is accordingly struck down. (Para 115)
(12) There is no particular or special standard of judicial scrutiny applicable to matters
arising under Article 16(4). (Para 113)
(13) The Government of India and the State Governments have the power to, and ought
to, create a permanent mechanism - in the nature of a Commission - for examining
requests of inclusion and complaints of over-inclusion or non-inclusion in the list of
O.B.Cs. and to advise the Government, which advice shall ordinarily be binding upon
the Government. Where, however, the Government does not accept the advice, it must
record its reasons therefor. (Para 117)
(14) In view of the answers given by us herein and the directions issued herewith, it is
not necessary to express any opinion on the correctness and adequacy of the exercise
done by the Mandal Commission. It is equally unnecessary to send the matters back to
the Constitution Bench of Five Judges. (Paras 118 to 119) 122. For the sake of ready
reference, we also record our answers to questions as framed by the counsel for the
parties and set out in para 26. Our answers question-wise are:

(1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification

inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in
favour of backward classes, though it may not be exhaustive of the very concept of
reservation. Reservations for other classes can be provided under Clause (1) of
Article 16.
(2) The expression 'backward class' in Article 16(4) takes in 'Other Backward Classes',
S.Cs., S.Ts. and may be some other backward classes as well. The accent in
Article 16(4) is upon social backwardness. Social backwardness leads to educational
backwardness and economic backwardness. They are mutually contributory to each
other and are inter-twined with low occupations in the Indian society. A caste can be
and quite often is a social class in India. Economic criterion cannot be the sole basis for
determining the backward class of citizens contemplated by Article 16(4). The weaker
sections referred to Article 46 do include S.E.B.Cs. referred to in Article 340 and
covered by Article 16(4).
(3) Even under Article 16(1), reservations cannot bo made on the basis of economic
criteria alone.
(4) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain
extraordinary situations inherent in the great diversity of this country and the people. It
might happen that in far-flung and remote areas the population inhabiting those areas
might, on account of their being out of the main-stream of national life and in view of the
conditions peculiar to and characteristic of them need to be treated in a different way,
some relaxation in this strict rule may become imperative. In doing so, extreme caution
is to be exercised and a special case made out.
For applying this rule, the reservations should not exceed 50% of the appointments in a
grade, cadre or service in any given year. Reservation can be made in a service or
category only when the State is satisfied that representation of backward class of
citizens therein is not adequate.
To the extent, Devadasan is inconsistent herewith, it is over-ruled.
(5) There is no constitutional bar to classification of backward classes into more
backward and backward classes for the purposes of Article 16(4). The distinction should
be on the basis of degrees of social backwardness. In case of such classification,
however, it would be advisable - nay, necessary - to ensure equitable distribution
amongst the various backward classes to avoid lumping so that one or two such classes
do not eat away the entire quota leaving the other backward classes high and dry.
For excluding 'creamy layer', an economic criterion can be adopted as an indicium or
measure of social advancement.
(6) A 'provision' under Article 16(4) can be made by an executive order. It is not
necessary that it should be made by Parliament/Legislature.
(7) No special standard of judicial scrutiny can be predicated in matters arising under
Article 16(4). It is not possible or necessary to say more than this under this question.
(8) Reservation of appointments or posts under Article 16(4) is confined to initial
appointment only and cannot extend to providing reservation in the matter of promotion.
We direct that our decision on this question shall operate only prospectively and shall
not affect promotions already made, whether on temporary, officiating or
regular/permanent basis. It is further directed that wherever reservations are already
provided in the matter of promotion - be it Central Services or State Services, or for that
matter services under any Corporation, authority or body falling under the definition of
'State' in Article 12 - such reservations may continue in operation for a period of five
years from this day. Within this period, it would be open to the appropriate authorities to
revise, modify or re-issue the relevant rules to ensure the achievement of the objective
of Article 16(4). If any authority thinks that for ensuring adequate representation of
'backward class of citizens' in any service, class or category, it is necessary to provide
for direct recruitment therein, it shall be open to it do so.
(As pointed out at the end of the paragraph 101 of this judgment, Ahmadi, J. having
upheld the preliminary objection raised by Sri Parasaran and others has not associated
himself with the discussion on the question whether reservation in promotion is
permissible. Therefore, the views expressed in this judgment on the said point are not
the views of Ahmadi. J.)

THE FOLLOWING DIRECTIONS ARE GIVEN TO THE 

GOVERNMENT OF INDIA. THE STATE GOVTS. AND 
THE ADMINISTRATION OF UNION TERRITORIES.
123. (A). The Government of India, each of the State Governments and the
Administrations of Union Territories shall, within four months from today, constitute a
permanent body for entertaining, examining and recommending upon requests for
inclusion and complaints of over-inclusion and under-inclusion in the lists of other
backward classes of citizens. The advice tendered by such body shall ordinarily be
binding upon the Government.
(B) Within four months from today the Government of India shall specify the bases,
applying the relevant and requisite socio-economic criteria to exclude socially advanced
persons/sections ('creamy layer') from 'Other Backward Classes'. The implementation of
the impugned O.M. dated 13th September, 1990 shall be subject to exclusion of such
socially advanced persons ('creamy layer').
This direction shall not however apply to States where the reservations in favour of
backward classes are already in operation. They can continue to operate them. Such
States shall however evolve the said criteria within six months from today and apply the
same to exclude the socially advanced persons/sections from the designated 'Other
Backward Classes.
(C) It is clarified and directed that any and all objections to the criteria that may be
evolved by the Government of India and the State Governments in pursuance of the
direction contained in Clause (B) of Para 123 as well as to the classification among
backward classes and equitable distribution of the benefits of reservations among them
that may be made in terms of and as contemplated by Clause (1) of the Office
Memorandum dated 25th September 1991, as explained herein, shall be preferred only
before this Court and not before or in any other High Court or other Court or Tribunal.
Similarly, and petition or proceeding questioning the validity, operation or
implementation of the two impugned Office Memorandums, on any grounds
whatsoever, shall be be filed or instituted only before this Court and not before any High
Court or other Court or Tribunal.
124. The Office Memoranda dated August 13, 1990 impugned in these writ petitions is
accordingly held valid and enforceable subject to the exclusion of the socially advanced
members/sections from the notified 'Other Backward Classes', as explained in para
123(B).
Clause (i) of the Office Memorandum dated September 25, 1991 requires - to uphold its
validity - to be read, interpreted and understood as intending a distinction between
backward and more backward classes on the basis of degrees of social backwardness
and a rational and equitable distribution of the benefits of the reservations amongst
them. To be valid, the said clause will have to be read, understood and implemented
accordingly.
Clause (ii) of the Office Memorandum dated September 25, 1991 is held invalid and
inoperative.
The writ Petitions and Transferred Cases are disposed of in the light of the principles,
directions, clarifications and orders contained in this Judgment.
No costs.
S. Ratnavel Pandian, J.
125. Equality of status and of opportunity...' the rubric chiselled in the luminous
preamble of our vibrating and pulsating Constitution radiates one of the avowed
objectives in our Sovereign, Socialist and Secular Democratic Republic. In every free
country which has adopted a system of governance through democratic principles, the
people have their fundamental inalienable rights and enjoy the recognition of inherent
dignity and of equality analogous to the rights proclaimed in the 'Bill of Rights' in U.S.A.,
the 'Rights of Man' in the French Constitution of 1971 and 'Declaration of Human Rights'
etc. Our Constitution is unquestionably unique in its character and assimilation having
its notable aspirations contained in 'Fundamental Rights' (in Part HI) through which the
illumination of Constitutional rights comes to us not through an artless window glass but
refracted with the enhanced intensity and beauty by prismatic interpretation of the
Constitutional provisions dealing with equal distribution of justice in the social, political
and economic spheres.
126. Though forty-five years from the commencement of the Indian independence after
the end of British paramountcy and forty-two years from the advent of our Constitution
have marched on, the tormenting enigma that often nags the people of India is whether
the principle of 'equality of status and of opportunity' to be equally provided to all the
citizens of our country from cradle to grave is satisfactorily consummated and whether
the clarion of 'equality of opportunity in matters of public employment' enshrined in
Article 16(4) of the Constitution of India has been called into action? With a broken heart
one has to answer these questions in the negative.
127. The founding fathers of our Constitution have designedly couched
Articles 14, 15 and 16 in comprehensive phraseology so that the frail and emaciated
section of the people living in proverty, rearing in obscurity, possessing no wealth or
influence, having no education, much less higher education and suffering from social
repression and oppression should not be denied of equality before the law and equal
protection of the laws and equal opportunity in the matters of public employment or
subjected to any prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth.
128. To achieve the above objectives, the Government have enacted innumerable
social welfare legislations and geared up social reformative measures for uplifting the
social and economic development of the disadvantaged section of people. True, a rapid
societal transformation and profusion of other progressive changes are taking place, yet
a major section of the people living below the poverty line and suffering from social
ostracism still stand far behind and lack in every respect to keep pace with the
advanced section of the people. The undignified social status and sub-human living
conditions leave an indelible impression that their forlorn hopes for equality in every
sphere of life are only a myth rather than a reality. It is verily believed - rightly too - that
the one and only peerless way and indeed a most important and promising way to
achieve the equal status and equal opportunity is only by means of constitutional justice
so that all the citizens of this country irrespective of their religion, race, caste, sex, place
of birth or any of them may achieve the goal of an egalitarian society.
129. This Court has laid down a series of landmark judgments in relation to social
justice by interpreting the constitutional provisions upholding the cherished values of the
Constitution and thereby often has shaped the course of our national life.
Notwithstanding a catena of expository decisions with interpretive semantics, the naked
truth is that no streak of light or no ray of hope of attaining the equality of status and
equality of opportunity is visible.
130. Confining to the issue involved in this case as regards the equal opportunity in the
matters of public employment, I venture to articulate without any reservation, even on
the possibility of any refutation that it is highly deplorable and heart-rending to note that
the constitutional provision, namely, namely, Clause (4) of Article 16 proclaiming a
"Fundamental Right" enacted about 42 years ago for providing equality of opportunity in
matters of public employment to people belonging to any backward class has still not
been given effect to in services under the Union of India and many more States. A
number of Backward Classes Commission have been appointed in some of the States,
the recommendations of which have been repeatedly subjected to judicial scrutiny.
Though the President of India appointed the second Backward Classes Commission
under the chairmanship of Shri B.P. Mandal as far back as 1at January, 1979 and the
Report was submitted in December, 1980, no effective steps were taken for its
implementation till the issuance of the two impugned OMs. Having regard to this
appalling situation and the pathetic condition of the backward classes, for the first time
the Union of India has issued the Office Memorandum (hereinafter called the 'O.M.') in
August 1991 and thereafter an amended O.M. in September 1991 on the basis of the
recommendations of the Mandal Commission.
131. Immediately after the announcement of the acceptance of the Report of the
Mandal Commission, as pointed out in Writ Petition No. 930/90 and the Annexures I & II
enclosed thereto, there were unabated pro as well as anti reservation agitations and
violent societal disturbances virtually paralysing the normal life. It was unfortunate and
painful to note that some youths who are intransigent to recognise the doctrine of
equality in matters of public employment and who under the mistaken impression that
'wrinkles and gray hairs' could not do any thing in this matter, actively participated in the
agitation. Similarly, another section of people suffering from a fear psychosis that the
Mandal recommendations may not at all be implemented entered the fray of the
agitation. Thus, both the pro and anti-reservationists or being detonated and inflamed
by the ruffled feelings that their future in public employment is bleak raised a number of
gnawing doubts which in turn sensationalised the issue. Their pent up fury led to an
orgy of violence resulting in loss of innocent life and damaged the public properties. It is
heart-rending that some youths - particularly students - in their prime of life went to the
extent of even self-immolating themselves. No denying the fact that the horrible, spine -
chilling and jarring piece of information that some youths whose feelings ran high had
put an an end to their lives in tragic and pathetic manner had really caused a tremor in
Indian society. My heart bleeds for them.
132. In fact, a three-Judges Bench of this Court comprised of Ranganath Misra, CJ and
K.N. Singh and M.H. Kania, JJ (as the learned Chief Justices then were) taking note of
the widespread violence, by their order dated 21st September 1990 made the following
appeal to the general public and particularly the student community:

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

133. Be that as it may, sitting as a Judge one cannot be swayed either way while
interpreting the Constitutional provisions pertaining to the issues under controversy by
the mere reflexes of the opinion of any section of the people or by the turbulence
created in the society or by the emotions of the day. Because nothing inflicts a deeper
wound on our Constitution than in interpreting it running berserk regardless of human
rights and dignity.
134. We are very much alive to the fact that the issues with which we are now facing
are hypersensitive, highly explosive and extremely delicate. Therefore, the permissible
judicial creativity in tune with the Constitutional objectivity is essential to the
interpretation of the Constitutional provisions so that the dominant values may be
discovered and enforced. At the same time, one has to be very cautious and careful in
approaching the issues in a very pragmatic and realistic manner.
135. Part-III dealing with 'Fundamental Rights' and Part-IV dealing with 'Directive
Principles of State Policy' which represent the core of the Indian Constitutional
philosophy envisage the methodology for removal of historic injustice and inequalities -
either inherited or artificially created - and social and economic disparity and ultimately
for achieving an egalitarian society in terms of the basic structure of our Constitution as
spelt out by the preamble.
136. Though all men and women created by the Almighty, whether orthodox or
heterodox; whether theist or atheist; whether born in the highest class or lowest class;
whether belong to 'A' religion or 'B' religion are biologically same, having same purity of
blood. In a Hindu Society they are divided into a number of distinct sections and sub-
sections known as castes and sub-castes. The moment a child comes out of the
mother's womb in a Hindu family and takes its first breath and even before its umbilical
cord is cut off, the innocent child is branded, stigmatized and put in a separate slot
according to the caste of its parents despite the fact that the birth of the child in the
particular slot is not by choice but by chance.
137. The concept of inequality is unknown in the Kingdom of God who creates all
beings equal, but the "created" of the creator has created the artificial inequality in the
name of casteism with selfish motive and vested interest.
138. Swami Vivekananda in one of his letters addressed to his disciples in Madras
dated 24.1.1894 has stated thus:

Caste or no caste, creed or no creed,... or class, or caste, or nation, or institution which

bars the power of free thought and action of an individual - even so long as that power
does not injure others - is devilish and must go down.
(Vide 'The Complete Works of Swami Vivekananda, Vol. V. page 29')

139. A Biblical verse in New Testament says "He denied none that come unto Han,
black and white".
140. Sura 10 Verse No. 44 of Holy Quran reads:

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

141. The Hindus who form the majority, in our country, are divided into 4 Varnas -
namely, Brahmins, Kshatriyas, Vaishyas (who are all twice born) and lastly Shudras
which Varnas are having a four tier demarcated hierarchical caste system based on
religious tenets, believed to be of divine origin or divinely ordained, otherwise called the
Hindu Varnasharma Dharma. Beyond the 4 Varnas Hinduism recognises a community,
by name Panchma (untouchables) though Shudras are recognised as being the lowest
rung of the hierarchical race. This system not only creates extreme forms of caste and
gender prejudices, injustices, inequalities but also divides the society into privileged and
disabled, revered and despised and so on. The perpetuation of casteism, in the words
of Swami Vivekananda "continues social tyranny of ages". The caste system has been
religiously preserved in many ways including by the judicial verdicts, pronounced
according to the traditional Hindu Law.
142. On account of the caste system and the consequent inequalities prevailing in
Hinduism between person to person on the basis of Varnasharma Dharma new
religions such as Buddhism and Jainism came into existence on the soil of this land.
Many humanistic thinkers and farseeing revolutionary leaders who stood foursquare by
the down - trodden section of the Backward Classes aroused the consciousness of the
backward class to fight for justice and join the wider struggle for social equality and
propagated various reforms. It was their campaign of waging an unending war against
social injustice which created a new awareness. The sustained and strenuous efforts of
those leaders in that pursuit have been responsible for bringing many new social
reforms.
143. Recognizing and recalling the self-less and dedicated social service carried on by
those great leaders from their birth to the last breath; the then Prime Minister while
making his clarificatory statement regarding the implementation of the Mandal
Commission's Report in the Rajya Sabha on the 9th August 1990 paid the tributes in the
following words:

In fact this is the realisation of the dream of BHARAT RATNA Dr. B.R. AMBEDKAR, of
the great PERIYAR RAMASWAMY and Dr. RAM MANOHAR LOHIA.

144. Harkingback, it is for the first time that the controversial issue as regards the
equality of opportunity in matters of public employment as contemplated under
Article 16(4) has come up for deliberation before a nine-Judges Bench, on being
referred to by a five-Judges Bench.
145. There are various Constitutional provisions such as
Articles 14, 15, 16, 17, 38, 46, 332, 335, 338 and 340which are designed to redress the
centuries old grievances of the scheduled castes and scheduled tribes as well as the
backward classes and which have come for judicial interpretation on and off. It is not
merely a part of the Constitution but also a national commitment.
146. This Court which stands as a sentinel on the quiver over the rights of people of this
country has to interpret the Constitution in its true spirit with insight into social values
and suppleness of the adoption to the changing social needs upholding the basic
structure of the Constitution for securing social justice, economic justice and political
justice as well as equality of status and equality of opportunity.
147. The very blood and soul of our Constitutional scheme are to achieve the objectives
of our Constitution as contained in the preamble which is part of our Constitution as
declared by this Court in Kesvananda Bharti v. Kerala, 1993 (Suppl.) SCR 1 . So it is
incumbent to lift the veil and see the notable aspirations of the Constitution.
148. No one can be permitted to invoke the Constitution either as a sword for an offence
or as a shield for anticipatory defence, in the sence that no one under the guise of
interpreting the Constitution can cause irreversible injustice and irredeemable
inequalities to any section of the people or can protect those unethically claiming
unquestionable dynastic monopoly over the Constitutional benefits.
149. Therefore, the Judges who are entrusted with the task of fostering an advanced
social policy in terms of the Constitutional mandates cannot afford to sit in ivory towers
keeping Olympian silence unnoticed and uncaring of the storms and stresses that affect
the society.
150. This Summit Court has not only to interpret the Constitution but also sometimes to
articulate the Constitutional norms, serving as a publicist for reforms in the areas of the
most pressing needs and directing the executive to take the needed actions. Mere
verbal gymnastics or empty slogans and sermons honoured more often in rhetoric than
practice are of no use.
151. It may be a journey of thousand miles in achieving the equality of status and of
opportunity, yet it must begin with a single step. So let the socially backward people
take their first step in that endeavour and march on and on.
152. When new societal conditions and factual situations demand the Judges to speak
they, without professing the tradition of judicial lock-jaw, must speak out. So I speak.
153. For providing reservations for backward class of citizens, Scheduled Castes and
Scheduled Tribes in the public educational institutions and for providing equal
opportunity in the matters of public employment, some States have appointed
Commissions on Backward Classes. The Central Government has also appointed two
Commissions under Article 340(1) of the Constitution of India for identifying the
backward class of citizens as contemplated under Article 16(4) for the purpose of
making reservation of appointments or posts in the Services under Union of India. The
list of Commissions appointed by the various States and the Central Government is
given as under:
COMMISSIONS ON BACKWARD CLASSES
1918-1990
Andhra Pradesh Manohar Pershad Committee (1968-69) Ananta Raman Commission
(1970) Muralidhara Rao Commission (1982) Bihar Mungeri Lal Commission (1971-
76) Gujarat A.R. Bakshi Commission (1972-76) Justice C.V. Rane Commission
(1981-83) Justice R.C. Mankad Commission (1987) Haryana Gurnam Singh
Commission (1990) Jammu and Justice Ganjendragadkar Commission (1967-68)
Kashmir Justice J.N. Wazir Commission (1969) Justice Adarsh Anand Commission
(1976-77) Karnataka Justice L.C. Miller Committee (1918-1920; Mysore) Naganna
Gowda Commission (1960-61) L.G. Havnur Commission (1972-75) T. Venkataswamy
Commission (1983-86) Justice Chinnappa Reddy Commission (1989-90) Kerala
Justice CD. Nokes Committee (1935; Travancore-Cochin) V.K. Vishvanatham
Commission (1961-63) G. Kumar Pillai Commission (1964-66) N.P. Damodaran
Commission (1967-70) Maharashtra O.H.B. State Committee (1928-30; Bombay
Presidency) B.D. Deshmukh Committee (1961-64) Punjab Brish Ban Committee
(1965-66) Tamil Nadu A.N. Sattanathan Commission (1969-70) J.M. Ambasankar
Commission (1982-86) Uttar Pradesh Chhedi Lal Sathi Commission (1975-77) All
India Kaka Kalelkar Commission (1953-55) B.P. Mandal Commission (1979-80) Note
: 1. Where two dates are mentioned they refer to year of appointment and year
of submission. Where only one is mentioned it refers to year of submission
which is also the year of appointment in some cases. 2. The three commissions
of the colonial period mentioned here had an ambit wider than those groups
that later came to be known as Backward Classes.
154. Second Backward Classes Commission (popularly known as Mandal Commission)
155. By a Presidential Order under Article 340 of the Constitution of India, the first
Backward Class Commission known as Kaka Kalelkar's Commission was set up on
January 29, 1953 and it submitted its report on March 30, 1955 listing out 2399 castes
as socially and educationally backward on the basis of criteria evolved by it, but the
Central Government did not accept that report and shelved it in the cold storage.
156. It was about twenty-four years after the First Backward Classes Commission
submitted its Report in 1955 that the President of India pursuant to the resolution of the
Parliament appointed the second Backward Classes Commission on 1st January 1979
under the Chairmanship of Shri B.P. Mandal to investigate the conditions of Socially and
Educationally Backward Classes (for short 'SEBCs') within the territory of India. One of
the terms of reference of the Commission was to determine the criteria for defining the
SEBCs. The Commission commenced its functioning on 21st March, 1979 and
completed its work on 12th December 1980, during the course of which it made an
extensive tour throughout the length and breadth of India in order to collect the requisite
data for its final report. The Commission submitted its report with a minute of dissent of
one of its members, Shri L.R. Naik on 31st December 1980. The Commission appears
to have identified as many as 3743 castes as SEBCs and made its recommendations
under Chapter XIII of Volume I of its report (vide paras 13. 1 to 13.39) and finally
suggested "regarding the period of operation of Commission's recommendations, the
entire scheme should be reviewed after twenty years. (Vide para 13.40)
157. The entire Report comprises of fourteen Chapters of which Chapter IV deals with
'Social Backwardness and Caste', Chapter XI deals with 'Socio-Educational Field
Survey and Criteria of Backwardness', Chapter XII deals with 'Identification of OBCs'
and Chapter XIII gives the 'Recommendations'. After a thorough survey of the
population, the Commission has arrived at the percentage of OBCs as follows:

12.22 From the foregoing it will be seen that excluding Scheduled Castes and
Scheduled Tribes, other Backward Classes constitute nearly 52% of the Indian
population.

Percentage of Distribution of India Population by 

Caste and Religious Groups

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

158. On the basis of the Commission's Report - popularly known as Mandal

Commission's Report - (for short 'the Report'), two office Memoranda - one dated
13.8.1990 and the other amended one dated 25.9.1991 were issued by the Government
of India. We are reproducing those Memoranda hereunder for proper understanding and
appreciation of the significance of these two OMs and the distinctions appearing
between them:
 No. 36012/31/90-Estt (SCT) Government of India Ministry of Personnel, Public
Grievances & Pensions (Deptt. of Personnel & Training) OFFICE MEMORANDUM New
Delhi, the 13th August, 1990 Subject : Recommendation of the Second Backward
Classes Commission (Mandal Report) - Reservation for Socially and
Educationally Backward Classes in services under the Government of India.

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

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

(i) 27% of the vacancies in civil posts and services under the Government of India shall
be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment.
Detailed instructions relating to the procedure to be followed for enforcing reservation
will be issued separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open
competition on the same standards prescribed for the general candidates shall not be
adjusted against the reservation quota of 27%.
(iv) The SEBC would comprise in the first phase the castes and communities which are
common to both the list in the report of the Mandal Commission and the State
Governments' lists. A list of such castes/communities is being issued separately.
(v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not
apply to vacancies where the recruitment process has already been initiated prior to the
issue of these orders.

Similar instructions in respect of public sector undertakings and financial institutions

including public sector banks will be issued by the Department of Public Enterprises and
Ministry of Finance respectively.

sd/- (Smt. Krishna Singh) Joint Secretary to the Govt. of India Amended
Memorandum: No. 36012/31/90-Estt. (SCT) Government of India Ministry of
Personnel, Public Grievances & Pensions (Deptt. of Personnel & Training)
OFFICE MEMORANDUM New Delhi, the 25th September, 1991. Subject :
Recommendation of the Second Backward Classes Commission (Mandal Report) -
Reservation for Socially and Educationally Backward Classes in service under
the Government of India.

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

2. (1) Within the 27% of the vacancies in civil posts and services under the Government
of India reserved for SEBCs, preference shall be given to candidates belonging to the
poorer sections of the SEBCs. In case sufficient number of such candidates are not
available, unfilled vacancies shall be filled by the other SEBC candidates.
(ii) 10% of the vacancies in civil posts and services under the Government of India shall
be reserved for other economically backward sections of the people who are not
covered by any of the existing schemes of reservation.
(iii) The criteria for determining the poorer sections of the SEBCs or the other
economically backward sections of the people who are not covered by any of the
existing schemes of reservations are being issued separately.
3. The O.M. of even number dated the 13th August, 1990, shall be deemed to have
been amended to the extent specified above.

sd/- 
(A.K. HARIT) 
DEPUTY SECRETARY TO THE GOVT. OF INDIA
159. The expression deployed in both the OMs, "Socially and Educationally Backward
Classes" is on the strength of the Report of the Commission, though no such expression
is used in Article 16(4) whereunder the reservation of appointments or posts in favour of
any backward class of citizens is to be made. This expression is used as an explanatory
one to the words 'backward class' occurring in Article 16(4).
Articles 16(4) and 340(1)were embodied in the Constitution even at the initial stage; but
Article 15(4) containing the same expression as in Article 340(1) was subsequently
added by the Constitution (First Amendment) Act of 1951 to over-ride the decision of
this Court in State of Madras v. Smt. Champakam Dorairajan, MANU/SC/0007/1951 :
[1951]2SCR525 .
160. Legislative History of Article 15(4) of the Constitution
161. A legislative historical event that warranted the introduction of Clause 4 to
Article 15 may be briefly retraced.
162. The Government of Tamil Nadu issued a Communal G.O. in 1927 making
compartmental reservation of posts for various communities. Subsequently the G.O.
was revised. In 1950 one Smt. Champakam Dorairajan who intended to join the Medical
College, on enquiries came to know that in respect of admissions into the Government
Medical College the authorities were enforcing and observing an order of the
Government, namely, notification G.O.No. 1254 Education dated 17.5.1948 commonly
known as Communal G.O. which restricted the number of seats in Government
Colleges for certain castes. It appeared that the proportion fixed in the old Communal
G.O. had been adhered to even after commencement of the Constitution on January 26,
1950. She filed a Writ Petition on 7th June 1950 under Article 226 of the Constitution for
issuance of a writ of mandamus restraining the State of Madras from enforcing the said
Communal G.O. on the ground that the G.O. was sought or purported to be regulated in
such a manner as to infringe the violation of the fundamental rights guaranteed under
Articles 15(1) and 29(2). Similarly one Srinivasan who had applied for admission into
the Government Engineering College at Guindy also filed a Writ Petition praying for a
writ of mandamus for the same relief as in Champakam Dorairajan. A Full Bench of the
Madras High Court heard both the Writ Petitions and allowed them (vide Smt.
Champakam Dorairajan and Anr. v. State of Madras, MANU/TN/0014/1951 :
AIR1951Mad120 In this connection it may be mentioned that while the Writ Petition was
pending before the High Court, another revised G.O. No. 2208 dated June 16. 1950
substantially reproducing the communal proportion fixed in the old Communal G.O.
came into being. The State on being aggrieved by the judgment of the Madras High
Court preferred an appeal before this Court in State of Madras v. Smt. Champakam
Dorairajan MANU/SC/0007/1951 : [1951]2SCR525 . A seven-Judges Bench dismissed
the appeal holding that "the Communal G.O. being inconsistent with the provisions of
Article 29(2) in Part III of the Constitution is void under Article 13." This judgment
necessitated the introduction of a Bill called Constitution (First Amendment) Bill for over-
riding the decision of this Court in Champakam's case (supra).
163. During the Parliament Debates held on 29th May 1951 Pt. Jawahar Lal Nehru, the
then Prime Minister while moving the Bill to amend the Constitution stated as follows:

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

164. Thereafter, the Bill was passed and Clause (4) to Article 15 was added by the
Constitution (First Amendment) Act. The object of the newly introduced Clause (4) to
Article 15 was to bring Articles 15 and 29 in line with Articles 16(4), 46 and 340 and to
make it constitutionally valid for the State to reserve seats for backward class of
citizens, Scheduled Castes and Scheduled Tribes in the public educational institutions
as well as to make other special provisions as may be necessary for their advancement.
165. Scope of Article 16(4) of the Constitution
166. Article 16(4) expressly permits the State to make any provision for the reservation
of appointments or posts in favour of any backward class of citizens which in the opinion
of the State are not adequately represented in the services under the State. As the
power conferred on the State under this Clause 4 is to be exercised only if 'in the
opinion of the State' that there is no adequate representation in the services under the
State, a vital question arose for consideration whether the issue of determination by the
State as to whether a particular class of citizens is backward or not is a justiciable one?
This question was answered by the Constitution Bench of this Court in Trilok Nath Tiku
and Anr. v. State of Jammu & Kashmir and Ors. MANU/SC/0234/1966 :
(1967)IILLJ271SC holding thus:
While the State has necessarily to ascertain whether a particular class of citizens are
backward or not, having regard to acceptable criteria, it is not the final word on the
question; it is a justiciable issue. While ordinarily a Court may accept the decision of the
State in that regard, it is open to be canvassed if that decision is based on irrelevant
considerations. The power under Clause (4) is also conditioned by the fact that in
regard to any backward classes of citizens there is no adequate representation in the
services under the State. The opinion of the State in this regard may ordinarily be
accepted as final, except when it is established that there is an abuse of power.

167. The words "backward class of citizens" occurring in Article 16(4) are neither

defined nor explained in the Constitution though the same words occurring in
Article 15(4) are followed by a qualifying phrase. "Socially and Educationally".
168. Though initially, Article 10(3) of the draft Constitution did not contain the qualifying
word 'backward' preceding the words 'class of citizens' the said qualifying word was
subsequently inserted on the suggestion of the Drafting Committee. Strong objection
was taken for insertion of the word 'backward' and more so for the introduction of
Article 10(3) of the draft Constitution. Amendments were moved by one section of the
members of the Constituent Assembly for complete deletion of Clause (3) and by
another section for the omission of the word 'backward'. The discussion and debate
took place at length for and against the introduction of Clause (3) as well as for the
insertion of the word 'backward'. Before the motions for amendments were put on vote,
Dr. B.R. Ambedkar in answering the scathing criticism made in the course of the debate
and explaining the significance of Clause (3) of Article 10 with the qualifying word
'backward' and insisting the sustenance of the said clause emphatically expressed his
views as follows:

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

169. While winding up the debate he said:

...the Drafting Committee had to produce a formula which would reconcile these three
point of view, firstly, that there shall be equality of opportunity, secondly that there shall
be reservations in favour of certain communities which have not so far had a 'proper
look-in 'so to say into the administration....
that no better formula could be produced than the one that is embodied in Clause (3) of
Article 10of the Constitution; they will find that the view of those who believe and hold
that there shall be equality of opportunity has been embodied in Sub-clause (1) of
Article 10. It is a generic principle....Supposing for instance, we are to concede in full the
demand of those communities who have not been so far employed in the public
services to the fullest extent, what would really happen is, we shall be completely
destroying the first proposition upon which we are all agreed, namely, that there shall be
an equality of opportunity....I am sure they will agree that unless you use some such
qualifying phrase as "backward" the exception made in favour of reservation will
ultimately eat up the rule altogether. Nothing of the rule will remain. That I think, if I may
say so, is the justification why the Drafting Committee undertook on its own shoulders
the responsibility of introducing the word 'backward' which, I admit, did not originally find
a place in the fundamental right in the way in which it was passed by this Assembly...
somebody asked me: "What is a backward community"? Well, I think any one who
reads the language of the draft itself will find that we have left it to be determined by
each local Government. A backward community is a community which is backward in
the opinion of the Government. My honourable Friend Mr. T.T. Krishnamachari asked
me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer.
Personally I think it would be a justiciable matter. If the local Government included in
this category of reservations such a large number of seats; I think one could very well
go to the Federal Court and the Supreme Court and say that the reservation is of such a
magnitude that the rule regarding equality of opportunity has been destroyed and the
court will then come to the conclusion whether the local Government or the State
Government has acted in a reasonable and prudent manner.
(emphasis supplied)

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

170. After the debate, two motions were put to vote but they were negatived. The
unexpurgated draft Article10(3) corresponds to the present Article 16(4) of the
Constitution. It has now become necessary for this Court to interpret and explain the
words 'backward class'.
171. There is a galaxy of decisions of this Court, explaining the words 'backward class'
as occurring under Article 16(4) in relation to Articles 16(1) and 16 (2) which I shall
recapitulate in my endeavour to meet the arguments advanced by the learned Counsel
appearing for various parties in interpreting the words 'backward class'.
172. The Government both in the earlier O.M. and the subsequent amended O.M. has
used the expression 'socially and educationally backward classes' thereby qualifying the
word 'backward' as 'socially and educationally backward' though in the second
amended O.M., the 'economic backwardness' is alone taken as a ground for providing
reservation for the economically backward section of the people not covered by the
same kind of reservation meant for 'socially and educationally backward classes'.
173. The word 'backward' is very wide bringing within its fold the social backwardness,
educational backwardness, economic backwardness, political backward and even
physical backwardness.
174. To assimilate the expression 'class' in its legal sense, the said expression should
be strictly construed and tested on the principles of agreed criteria which throw a flood
light on its true meaning. In interpreting the words 'backward class', I am sorry to say
there is no uniform and consistent view expressed by the Court by laying down a rigid
formula exhaustively listing out the specific criteria. The battery of tests that are
recognised by the Courts in determining 'socially and educationally backward classes'
are caste, nature of traditional occupation or trade, poverty, place of residence, lack of
education and also the sub-standard education of the candidates for the post in
comparison to the average standard of candidates from general category. These factors
are not exhaustive.
175. As to the questions (1) whether 'caste' can be taken as a criterion in determining
and identifying a 'backward class' in Hindu society and (2) whether it could be a pre-
dominant factor or one of the factors in identifying the backward class, there is a
cleavage of opinion.
176. Ray, C.J. in State of Uttar Pradesh v. Pradeep Tandon and Ors.
MANU/SC/0086/1974 : [1975]2SCR761 has gone to the extent of saying that "when
Article 15(1) forbids discrimination on grounds only of religion, race, caste - caste
cannot be made one of the criteria for determining social and educational
backwardness. If caste or religion is recognised as a criterion of social and educational
backwardness Article 15(4) will stultify Article 15(1)". The effect of this judgment is that
caste can never be a criterion. This decision has also ruled that the place of habitation
and the environment are also the determining factors in judging the social and
educational backwardness.
177. A good deal of arguments was advanced on the question whether caste can be the
sole if not the dominant factor or at the least one of the factors or not at all. Whilst anti-
reservationists contend that the Report should be thrown overboard on the ground that
the reservation is made on the caste criterion, the pro-reservationists would forcibly
refute that contention making counter submissions stating, inter-alia, that caste can
justifiably be taken as an important and dominant factor if not the sole factor in
determining the social and educational backwardness for various reasons as pointed
out in the Report. Since backwardness is a direct consequence of caste status and the
discrimination perpetuated against the socially backward people is based on the caste
system, the caste criterion can never be divested while interpreting the word 'class'. Mr.
K.K. Venugopal, the learned senior counsel while concluding his arguments has stated
that caste if it is to be taken as one of the criteria, it must be at the end point and not the
starting point. Therefore, even at the threshold, it has become obligatory to decide the
question whether 'caste' should be completely excluded from being considered as one
of the criteria, if not to what extent caste would become relevant in the determination
and ascertainment of 'socially and educationally backward class'. There is a galaxy of
decisions of this Court in explaining the words 'backward class' and 'caste' which I shall
refer to at the appropriate place.
178. Meaning of 'Class' and 'Caste'
179. To identify the diversity of meanings of the words 'class' and caste' that constitute
their inner complexity; to formulate the questions about them that are disputed and to
examine as well as to assess the opposed voices in controversies that have ensued
and to understand their semiology, I shall first of all reproduce the meanings of those
words as lexically defined.
180. The Oxford English Dictionary (Volume II):

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

Caste

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

181. In Webster Comprehensive Dictionary (International Edition), the meaning of the

words is given as follows:

Class :

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

Caste :

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

182. According to Webster's Encyclopedic Unabridged Dictionary of the English

Language, meaning of the words 'class' and 'caste' is as follows:

Class :

(1) a number of persons or things regarded as forming a group by reason of common

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

Caste :

(1) Social, an endogamous and hereditary social group limited to persons of the same
rank, occupation, economic position etc. and having mores distinguishing it from other
such groups, (2) any rigid wealth, hereditary rank or privileges, or by profession or
employment, having special significance when applied to the artificial divisions or social
classes into which the Hindus are rigidly separated.
183. Black Law Dictionary (Sixth Edition) Centennial Edition (1891-1991) gives the
meaning of 'class' thus:

Class :

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

attributes.

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

Caste :

Caste is a largely, exclusive social class, membership in which is determined by birth

and involves particular customary restrictions and privilegs. The word derives from the
Portugues casta, meaning 'breed', 'race', or 'kind' and was first used to denote the
Hindu social system of social distinctions (2) Hinduism, any of the four social divisions,
the Brahman, Kshatriya, Vaisya and Sudra, into which Hindu society is rigidly divided,
each caste having its own privileges and limitations, transferred by inheritance from one
generation to the next (3) any class or group of society sharing common cultural
features.... (6) pertaining to characterised by caste; a caste society; a caste system; a
caste structure.

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

Class

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

Caste

A class or grade, or division of society separated from others by differences of

classification on the Indian subcontinent. While this remains the basic connotation, the
word 'caste' is also used to describe in whole or in part social system that emerged at
various times in other parts of the world....

186. The meaning of the word 'backward' is defined in lexicons as 'retarded in physical,
material or intellectual development' or 'slow in growth or development; retarded.
187. A careful examination of the meaning of the words 'class' and 'caste' as defined
above by the various dictionaries, perceivably shows that these two words are not
synonymous with each other and they do not convey the same meaning.
189. See R. Chitralekha and Anr. v. State of Mysore and Ors. MANU/SC/0030/1964 :
[1964]6SCR368 ; Triloki Nath v. J. & K. State [1969] 1 SCR 103 and K.C. Vasanth
Kumar v. Karnataka [1985] Supp. 1 SCR 352 .
190. The quintessence of the above definitions is that a group of persons having
common traits or attributes coupled with retarded social, material (economic) and
intellectual (educational) development in the sense not having so much of intellect and
ability will fall within the ambit of 'any backward class of citizens' under Article16(4) of
the Constitution.
191. In the course of debate in the Parliament on the intendment of Article 16(4), Dr.
B.R. Ambedkar, the then Minister for Law expressed his views that "backward classes
which are nothing else but a collection of certain castes."
192. The next important, but central point at issue is whether caste by the name of
which a group of persons are identified, can be taken as a criterion in determining that
caste as 'socially and educationally backward class' and if so, will it be the sole or
dominant or one of the factors in the determination of "social and educational
backwardness".
193. Before embarking upon a discussion relating to this aspect, it is pertinent to note
the views of certain States as regards the caste criterion and economic criterion for
identifying the 'backwardness'.
194. In reply to a questionnaire issued by the Second Backward Classes Commission,
the State of Assam, Andhra Pradesh, Bihar, Gujarat, Karnataka, Kerala, Maharastra,
Punjab, Rajasthan and Uttar Pradesh stated that caste should be used as one of the
criterion for identifying backwardness. Delhi, Dadra and Nagar Haveli, Haryana,
Himachal Pradesh and Madhya Pradesh stated that caste should not be made a
criterion of backwardness. Bihar, Gujarat, Himachal Pradesh, Kerala, Punjab, Rajasthan
and Uttar Pradesh suggested low economic status as one of the significant tests, while
Delhi, Dadra and Nagar Haveli and Haryana desired the economic factor to be the sole
determinant of backwardness.
195. Articles 15(4), 16(4) and 340(1) do not speak of 'caste' but only 'class'. The learned
Counsel particularly those appearing for anti-reservationists have stressed that if the
makers of the Constitution had really intended to take 'caste or castes' as conveying the
meaning of socially and educationally backward class, they would have incorporated the
said word, 'caste or castes' in Articles 15(4) and 340(1) as 'socially and educationally
backward caste or castes' instead of 'class or classes' as they have adopted the
expression in the case of 'Scheduled Castes and Scheduled Tribes'. Similarly in
Article 16(4) also, they would have used the words as 'backward caste or castes'
instead of 'backward class'. It has been further urged that the very fact that the framers
of the Constitution in their wisdom thought of using a wider expression 'classes' in
Article 15(4) and340(1) and 'class' in Article 16(4) alludes that they did not have the
intention of equating classes with the castes.
196. The word 'caste' is not used the Constitution as indicative of any section of people
or community expect in relation to 'Scheduled Castes' which is defined in
Article 366(24). However, the word 'caste' in Articles 15(2),16(2) and 29(2) does not
include 'scheduled caste' but it refers to a caste within the ordinary meaning of caste.
The word 'Scheduled Caste' came into being only by the notification of President under
Article 341. It would be appropriate, in this connection, to recall the observation of Fazal
Ali, J. in his separate but concurring judgment in State of Kerala and Ors. v. N.M.
Thomas and Ors. MANU/SC/0479/1975 : (1976)ILLJ376SC wherein at page 996, he
has said that "the word 'caste' appearing after 'scheduled' is really a misnomer and has
been used only for the purpose of identifying this particular class of citizens which has a
special history of several hundred years behind it.".
197. Mathew, J. in his separate judgment in the same case (Thomas) has expressed
that "it is by virtue of the notification of the President that the 'Scheduled Castes' came
into being".
198. Reference also may be made to the observation of Krishna Iyer, J. in Akhil
Bhartiya Soshit Karamchari Sangh v. Union of India and Ors. MANU/SC/0058/1980 :
(1981)ILLJ209SC where he has said:

Terminological similarities are an illusory guide and we cannot go by verbal

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

199. There is a long line of decisions dealing with the significance of the word 'caste' in
relation to Hindus as being one of the relevant criteria, if not the sole criterion for
ascertaining whether a particular person or group of persons will fall within the wider
connotation of 'class'.
200. In M.R. Balaji v. State of Mysore [1963] Suppl. 1 SCR 439 , Gajendragadkar, J.
observed, "Though castes in relation to Hindus may be a relevant factor to consider in
determining the social backwardness of groups or classes of citizens, it cannot be the
sole or the dominant test in that behalf."
201. Subba Rao, J. speaking for the majority of the Constitution Bench in R. Chitralekha
v. State of Mysore MANU/SC/0030/1964 : [1964]6SCR368 has stated:

...what we intend to emphasize is that under no circumstances a "class" can be equated

to a "caste", though the caste of an individual or a group of individual may be
considered along with other relevant factors in putting him in a particular class. We
would also like to make it clear that if in a given situation caste is excluded in
ascertaining a class within the meaning of Article 15(4)of the Constitution, it does not
vitiate the classification if it satisfied other tests.

202. Mudholkar, J. in his dissenting judgment in considering the caste in determination

of the backward class, has expressed his view thus:

...it would not be in accordance either with Clause (1) of Article 15 or Clause (2) of
Article 29 to require the consideration of the castes of persons to be borne in mind for
determining what are socially and educationally backward classes. It is true that Clause
(4) of Article 15 contains a non-obstante clause with the result that power conferred by
that clause can be exercised despite the provisions of Clause (1) of Article 15 and
Clause (2) of Article 29. But that does not justify the inference that castes have any
relevance in determining what are socially and educationally backward communities.
203. Wanchoo, C.J. speaking for the Constitution Bench in Minor P. Rajendran v. State
of Madras and Ors.,MANU/SC/0025/1968 : [1968]2SCR786 pointed out that "if the
reservation in question has 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)".
(emphasis supplied).
204. The learned Chief Justice in support of his above observation has placed reliance
on Balaji.
205. In State of Andhra Pradesh v. P. Sagar MANU/SC/0028/1968 : [1968]3SCR595 , it
has been observed:

...the expression "class" means a homogeneous section of the people grouped together
because of certain likenesses or common traits and who are identifiable by some
common attributes such as status, rank, occupation, residence in a locality, race,
religion and the like. In determining whether a particular section forms a class, caste
cannot be excluded altogether. But in the determination of a class a test solely based
upon the caste or community cannot also be accepted.

206. In Triloki Nath v. J & K State II [1969] 1 SCR 103 Shah, J. speaking for the
Constitution Bench has reiterated the meaning of the word 'class' as defined in the case
of Sagar and added that "for the purpose of Article 16(4) in determining whether a
section forms a class, a test solely based on caste, community race religion, sex,
descent, place of birth or residence cannot be adopted, because it would directly offend
the Constitution."
207. Further, this judgment reaffirms that view in Minor P. Rajendran's case to the effect
that if the members of an entire caste or community at a given time are socially,
economically and educationally backward that caste on that account be treated as a
backward class. This is not because they are members of that caste or community but
because they form a class.
208. Hegde, J. in A. Peerikaruppan, etc. v. State of Tamil Nadu MANU/SC/0055/1970 :
[1971]2SCR430 has observed:

A caste has always been recongnised as class.

209. Vaidialingam, J. in State Andhra Pradesh and Ors. v. U.S.V. Balram etc. [1972] 3
SCR 447 in his conclusion upheld the list of Backward Class in that case as they
satisfied the various tests, which have been laid down by this Court for ascertaining the
social and educational of a backwardness of a class even though the said list
was exclusively based on caste.
(emphasis our)
210. Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and
Anr. MANU/SC/0068/1976: [1977]1SCR194 was of the view that "In ascertaining social
backwardness of a class of citizens it may not be irrelevant to consider the caste of the
group of citizens. Caste cannot however be made the sole or dominant test...."
211. Speaking for the Bench in U.P. State v. Pradip Tandon Ray, the learned Chief
Justice after stating that neither caste nor race nor religion can be made the basis of
classification for the purposes of determining social and educational backwardness
within the meaning of Article 15(4) when Article 15(1) forbids discrimination on grounds
only of religion, race caste - observed that caste cannot be made one of the criteria for
determining social and educational backwardness and that if the caste or religion is
recognised as a criterion of social and educational backwardness, Article 15(4) still
stultify Article 15(1). Further, he observed that "It is true that Article 15(1) forbids
discrimination only on the ground of religion, race, caste but when a classification taken
recourse to caste as one of the criteria in determining socially and educationally
backward classes, the expression 'classes' in that case violates the rule of expressio
unius est exclusio alterius. The socially and educationally backward classes of citizens
are groups other than groups based on caste."
212. The learned Chief Justice also recognised the meaning of the expression "classes
of citizens" in line with the observation made in Triloki Nath (II)and Sagar (supra) and
explained the traits of social backwardness, economic backwardness and educational
backwardness.
213. See also Akhil Bhartia Soshit Karamchari Sangh (supra) and K.C. Vasanth Kumar
(supra).
214. Though there is tremendous ambivalence in a host of judgments rendered by this
Court, not even a single judgment has held that class has no relevance to caste at all
wherever caste system is prevalent.
215. Collating the above said views expressed by this Court in a catena of decisions as
regards the relevance and significance of the caste criterion in the field of identification
of 'socially and educationally backward classes' it may be stated that caste neither can
be the sole criterion nor can it be equated with 'class' for the purpose of Article 16(4) for
ascertaining the social and educational backwardness of any section or group of people
so as to bring them within the wider connotation of 'backward class'. Nevertheless
'caste' in Hindu society becomes a dominant factor or primary criterion in determining
the backwardness of a class of citizens. Unless 'caste' satisfies the primary test of social
backwardness as well as the educational and economic backwardness which are the
established and accepted criteria to identify the 'backward class' a caste per se without
satisfying the agreed formulae generally cannot fall within the meaning of 'backward
class of citizens' under Article 16(4), save in given exceptional circumstances such as
the caste itself being identifiable with the traditional occupation of the lower strata -
indicating the social backwardness.
216. True, the caste system is predominantly known in Hindu society and runs through
the entire fabric of the social structure. Therefore, the caste criterion cannot be divested
from the other established and agreed criteria in identifying and ascertaining the
backward classes.
217. It is said that the caste system is unknown to other communities such as Muslims,
Christians, Sikhs, Jews, Parsis, Jains etc. in whose respective religion, the caste
system is not recognised and permitted. But in practice, it cannot be irrefutably asserted
that Islam, Christianity, Sikhism are all completely immune from casteism.
218. There are marked distinctions in one form or another among various sections of
the Muslim community especially among converts to Islam though Islam does not
recognise such kind of divisions among Muslims and professes only common
brotherhood.
219. There are various sects or separate group of people in Muslim communities being
identified by their occupation such as Pinjara in Gugarat, Dudekula (cotton beaters) in
Andhra Pradesh, Labbais, Rowthar and Marakayar in Tamil Nadu.
220. Though Christianity does not acknowledge caste system, the evils of caste system
in some States are as prevalent as in Hindu society especially among the converts. In
Andhra Pradesh, there are Harijan Christians, Reddy Christians, Kamma Christians etc.
Similarly, in Tamil Nadu, there are Pillai Christians, Marvar Christians, Nadar Christians
and Harijan Christians etc. That is to say all the converts to Christianity have not
divested or set off themselves from their caste labels and crossed the caste barrier but
carry with them the banners of their caste labels. Like Hindus, they interact and have
their familiar relationship and marital alliances only within the converted caste groups.
221. In Tamil Nadu, after persistent effort and agitations some of the sections of people
belonging to some castes or communities converted either to Islam or Christianity have
become successful in having them included in the list of 'backward classes' on par with
their corresponding Hindu caste people.
222. The Government of Tamil Nadu on the basis of the report of the Second Backward
Classes Commission issued a revised list of 'backward classes' by G.O. Ms. No. 1564
(Social Welfare Department) dated 30th July 1985 wherein the following castes and
communities converted to Islam and Christianity' are included for the purpose of
reservation under Articles 15(4) and 16(4) of the Constitution.

Serial No. 26 Converts to Christianity from Scheduled Castes irrespective of

the generation of conversion for the purpose of reservation of seats in
Educational Institutional and for seats in Public Services. 98* Labbais
including Rowthar and Marakayar (whether their spoken language is Tamil or
Urdu.) 100 Latin Catholics...: in Kanyakumari district and Shenkottah taluk of
Tirunelveli district. 110 Meenavar, Parvatharajakulam, Pattanavar, Sembadavar
(including converts to Christianity). 115 Mukkuvar or Mukayar (including
converts to Christianity). 118 Nadar, Shanar and Gramani, including Christian
Nadar, Christian Shanar and Christian Gramani. 136 Paravar including converts
to Christianity (except in Kanyakumari district and Shenkottah taluk of
Tirunelveli district where the community is a Scheduled Caste.) * Item No. 98
denotes Muslim community.

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

(5) Accordingly, the Government declare that, in addition to the Christian Converts
mentioned in paragraph one above, the persons belonging to the other Christian
communities who are converts from any Hindu community included in the list of
Backward Classes also will be considered as socially and educationally backward for
the purposes of Article 15(4) of the Constitution.
(6) The Government also declare that, in addition to the Christian converts mentioned in
paragraph one above, the persons belonging to the other Christian communities who
are converts from any Hindu community included in the list of Backward Classes also
will be considered as Backward Classes of citizens and that they are not adequately
represented in the services under the State with reference to Article 16(4) of the
Constitution.

224. The Christian converts mentioned in the above G.O. relates to the list of Christian
converts mentioned in G.O. Ms. No. 1564 dated 30th July 1985.
225. As per the statistics given in the Report of the Second Backward Classes
Commission, in Tamil Nadu out of 27,05,960 people belonging to Muslim minorities
25,60,195 are included in the backward list which works out to 94.61% of the total
Muslim population of the State. Similarly, among Christians, out of 31, 91, 988 of the
total population, 25, 48, 148 are included in the backward list which works out to
79.83%.
226. The Nav. Budhists, and Neo Budhists the majority of whom are converts from
Scheduled Castes enjoy the reservation on the ground that their low status in that
community have not become advanced equal to the status of others and their social
backwardness is not changed in spite of change of their religion.
227. Sikhism, no doubt, strictly believes in social equality and justice, denounces all
sorts of social discrimination between man and man, strongly advocates the equality
and parity in all humanity and propagates that caste, birth or colour cannot make one
superior or inferior. All the Gurus of Sikhism have advocated and articulated the concept
of equality of man as the basis of egalitarian society. Notwithstanding Sikhism is
violently against casteism, some converts to Sikhism from the Scheduled Castes still
retain their caste label.
228. Thus even among non-Hindus, there are occupational organisations or social
groups or sects which are having historical backward/evolution. They too constitute
social collectives and form separate classes for the purposes of Article 16(4).
229. Though in India, caste evil originated from Hindu religion that evil has taken its root
so deep in the social structure of all the Indian communities and spread its tentacles far
and wide thereby leaving no community from being influenced by the caste factor. In
other words, it cannot be authoritatively said the some of the communities belonging to
any particular religion are absolutely free from casteism or at least from its shadow. The
only difference being that the rigour of caste varies from religion to religion and from
region to region. Of course, in some of the communities, the influence of the caste
factor may be minimal. So far as the Hindu society is concerned, it is most distressing to
note that it receives sanction from the Hindu religion itself and perpetuated all through.
230. Reference may be made to paragraphs 12.11 to 12.16 of Chapter XII of the
Report.
231. After identifying in paragraph 12.18, the Commission has laid down the following
tests for identifying non-Hindu OBCs:
12.18 After giving a good deal of thought to these difficulties, the Commission has
evolved the following rough and ready criteria for identifying non-Hindu OBCs:-

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

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

232. Even assuming that the caste factor would not furnish a reliable yardstick to
identify 'socially and educationally backward groups' in the communities other than
Hindu community as there is no commonness since all sections of people among
Budhists, Muslims, Sikhs and Christians etc. and as the respective religion of those
communities do not recognise the caste system, yet on the principle of the other agreed
criteria such as traditional occupation, trade, place of residence, poverty lack of
education or economic backwardness etc. the social and economic backwardness of
those communities could be identified independently of the caste criterion. Once these
'casteless societies' are tested on the anvil of the established relevant criteria de hors
the caste criterion, there may not be any difficulty in identifying the social and
educational backwardness of the section of the people of that community and
classifying them as 'backward class of citizens' within the meaning of Article 16(4).
233. In this connection, reference may be made to the observation of this Court in
Chitralekha (supra) that "...if in a given situation caste is excluded in ascertaining a
class within the meaning of Article 15(4) of the Constitution, it does not vitiate the
classification if it satisfied other tests."
234. More often than not, a question that is put forth is should the caste label be
accepted as a criterion in ascertaining the social and educational backwardness of a
group of persons or community. No doubt, it is felt that in identifying and classifying a
group of persons or community as 'socially and educationally backward class', it should
be done de hors the caste label. But all those who address such a question turn a blind
eye to the existing stark reality that in the Hindu society ever since the caste system
was introduced, till today, the social status of Hindu is so woven or inextricably
intertwined and fused with the caste system to such an extent that no one in such a
situation can say that the caste is not a primary indicator of social backwardness and
that social backwardness is not identifiable with reference to the caste of an individual
or group of persons or community. However, painful and distasteful, it may be, we have
to face the reality that under the hydraulic pressure of caste system in Hindu society, a
major section of the Hindus under multiple caste labels are made to suffer socially,
educationally and economically. There appears no symptoms of early demise of this
dangerous disease of caste system or getting away from the caste factor in spite of the
fact that many reformative measures have been taken by the Government. Unless this
caste system, unknown to other parts of the world is completely eradicated and all the
socially and educationally backward classes to whichever religion they belong inclusive
of Scheduled Castes and Scheduled Tribes are brought up and placed on par with the
advanced section of the people, the caste label among Hindus will continue to serve as
a primary indicator of its social backwardness.
235. Though I am not inclined to exhaustively elaborate the untold agony and
immeasurable sufferings undergone by the people in the lower strata under the label of
their respective caste, I cannot avoid but citing a jarring piece of information appearing
in the Report. The noted and renowned Sociologist Shri J.R. Kamble in Rise &
Awakening of Depressed Classes in India published by National Publishing House, New
Delhi has quoted a passage from the issue of 'Hindu' dated 24.12.1932 as an example
of visual pollution existing in Tinnevelli (Tamil Nadu) which the Mandal Commission has
extracted in Chapter IV vide para 4.13 of its report:

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

236. Does not the very mention of the caste named 'purada vannans' indicate that the
people belonging to that community were so backward, both socially, economically as
well as educationally beyond comprehension? Would the children of those people who
were not allowed to come out during day time have gone to any school? Does not the
very fact that those people were treated with contempt and disgrace as if they were
vermin in the human form freeze our blood? Alas! What a terrible and traumatic
experience it was for them living in their hide-outs having occasional pot-luck under
pangs of misery, all through mourning over their perilous predicament on account of this
social ostracism. When people placed at the base level in the hierarchical caste system
are living like mutes, licking their wounds - caused by the deadening weight of social
customs and mourning their fate for having been born in lower castes - can it be said by
any stretch of imagination that caste can never be the primary criterion in identifying the
social, economic and educational backwardness? Are not the social and economic
activities of Shudras and Panchamas (untouchables) severely influenced by their low
caste status?
237. There is no denying that many of the castes are identified even by their traditional
occupation. This is so because numerous castes arranged in a hierarchical order in the
Hindu social structure are tied up with their respective particular traditional occupation
consequent upon the creation of four Varnas on the concept of divine origin of caste
system based on the Vedic principles. Can it be said that the propagation and practice
on the caste - based discrimination; the marked dividing line between upper caste
Hindus and Shudras, and the practice of untouchability in spite of the Constitutional
declaration of abolition of untouchability under Article 17are completely eradicated and
erased? Can it be said that the social backwardness has no relation to caste status?
The unchallengeable answer for the first question would be in the negative and for the
second question, the answer would be that social backwardness does have a relation
with the caste status.
238. It is not germane for my purpose to enter into a lengthy deliberation as to how
religion and mythology were used for founding the social institution in Hindu society
containing so much of inequalities and discrimination among the people professing the
same Hinduism.
239. The Mandal Commission in Chapter IV of its report under the heading "Social
Backwardness and Caste" has concluded its view, with a query under paragraph 4.33 of
its Report (Volume I) thus:

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

240. Though the Government both on the Central and State level have taken and are
taking positive steps through law and other reformative measures to eradicate this
social evil, it is heart- rending to note that in many circumstances, the caste system is
being perpetuated instead of being banished for the reasons best known to those
perpetratOrs.
241. It is common knowledge that in Hindu society, if a person merely mentions the
name of a traditional occupation, another by his empirical knowledge can immediately
identify the caste by the said traditional occupation. To illustrate, the traditional
occupation of washing clothes is identified with washerman (Dhobi), caste, traditional
occupation of haircutting is identified with Barber (Nai) - caste, traditional occupation of
pottery is identified with Potter (Kumhar's caste), and so on. Of course in modern times,
persons belonging to any particular caste might have shifted over to other occupation
leaving their traditional occupation but generally speaking, the occupation is identified
with the caste and vice-versa. Many backward castes have taken 'agricultrure' as their
profession. In such an unquestionable situation, in my opinion, there can be no
justification in saying that caste in Hindu society cannot serve as a primary criterion
even at the starting point in ascertaining its social, economic and educational
backwardness. To say that in the effort of ascertaining social backwardness, caste
should be considered only at the end point, is a misnomer and fallacious. Because after
identifying and classifying a group of persons belonging to a particular caste by testing
with the application of the relevant criteria other than the caste criterian, the
identification of the caste of that class of persons is no more required as in the case of
identification of casteless society as a backward class. In fact, this Court in a number of
decisions has held that a caste may become a 'backward class' provided that caste
satisfies the test of backwardness.
242. It is apposite, in this context, to make reference of the views expressed by the
Mandal Commission stating that there is "a close linkage between caste ranking of a
person and his social educational and economic status....In India, therefore, the low
ritual caste status of a person has a direct bearing on his social backwardness".
243. Chinnappa Reddy, J. In Vasant Kumar points out that the social investigator "...
may freely perceive those pursuing certain 'lowly' occupation as socially and
educationally backward classes."
244. In passing, I would like to make reference to the pith and substance of the report of
Kaka Kalelkar, according to which the relevant factors to cosider in classifying
'backward class' would be their traditional occupation or profession, the percentage of
literary or the general educational advancement made by them; the estimated
population of the conmmunity, and the distribution of the various communities
throughout the State or their concentration in certain areas.
245. What the Expression "Backward Class" means?
246. In Minor P. Rajendran (supra), Wanchoo, C.J. speaking for the Constitution Bench
has stated that" a caste is also a 'class of citizens' and that reservation can be made in
such a case provided if that caste as a whole is socially and educationally backward
within the meaning of Article 15(4)".
247. Reference may also be made to Triloki Nath (11) (supra) and Balaram.
248. The facts in Balaram (cited above) disclose that for the admission to the integrated
M.B.B.S. Course in the government medical colleges in Andhra Pradesh, the
Government issued a G.O. making a reservation of 25% of seats in favour of 'backward
classes' as recommended by the Andhra Pradesh Backward Classes Commission
besides other reservations inclusive of reservation for Scheduled Castes and Scheduled
Tribes. The reservation for the 'backward classes' was challenged on the ground that
the Government Order violated Article 15(1) read with Article 29 and that the reservation
was not saved by Article 15(4). The High Court held that the Commission had merely
enumerated the various persons belonging to a particular caste as 'backward classes'
which was contrary to the decision of this Court and violative of the constitutional
provisions and consequently struck down the G.O. The Government preferred an
appeal before this Court. Vaidialingam, J. speaking for the Bench has observed:

In the determination of a class to be grouped as backward, a test solely based upon

caste or community cannot be valid. But, in our opinion, though Directive Principles
contained in Article 46cannot be enforced by Courts, Article 15(4) will have to be given
effect to in order to assist the weaker sections of the citizens, as the State has been
charged with such a duty. No doubt, we are aware that any provision made under this
clause must be within the well defined limits and should not be on the basis of caste
alone. But it should not also be missed that a caste is also a class of citizens and that a
caste as such may be socially and educationally backward. If after collecting the
necessary data, it is found that the caste as a whole is socially and educationally
backward, in our opinion, the reservation made of such persons will have to be upheld
notwithstanding the fact that a few individuals in that group may be both socially and
educationally above the general average. There is no gainsaying the fact that there are
numerous castes in the country, which are socially and educationally backward and,
therefore, a suitable provision will have to be made by the State as charged in
Article 15(4) to safeguard their interest.
(emphasis supplied)

249. The decisions which we have referred to above support the view that a caste is
also a class of citizens and that if that caste satisfies the requisite tests of
backwardness, then the classification of that caste as a backward class is not opposed
to Article 16(4) notwithstanding that a few individuals of that caste are socially and
educationally above the general average. I am in full agreement with the above view.
250. The composition and terms of reference of the Second Backward Classes
Commission show that the Commission was appointed to investigate the conditions of
socially and educationally backward classes within the territory of India but not the
socially, economically and educationally backward classes. The earlier O.M. issued on
13.8.90 reads that with a view to providing certain weightage to socially and
educationally backward classes in the services of the Union and their Public
Undertakings, as recommended by the Commission, the orders are issued in the terms
mentioned therein. The said O.M. also explains that "the SEBC would comprise in the
first phase the castes and communities which are common to both the lists, in the report
of the Commission and the State Government' list". In addition it is said that list of such
castes/communities is being issued seperately. The subsequent amended O.M. dated
25.9.91 states that in order to enable the 'poorer sections' of the SEBCs to receive the
benefits of reservation on a preferential basis and to provide reservation for other
economically backward sections of the people not covered by any of the existing
schemes of reservation, the Government have decided to amend the earlier
Memorandum. Thus this amended O.M. firstly speaks of the 'poorer sections' of the
SEBCs and secondly about the economically backward sections of the people not
covered by any of the existing schemes of reservation. However, both the O.M.s while
referring to the SEBCs, do not include the 'economic backwardness' of that class along
with 'social and educational backwardness'. By the amended O.M., the Government
while providing reservation for the backward sections of the people not covered by the
existing schemes of reservation meant for SEBCs, classifies that section of the people
as 'economically backward', that is to say that those backward sections of the people
are to be identified only by their economic backwardness and not by the test of social
and educational backwardness, evidently for the reason that they are all socially and
educationally well advanced.
251. Coming to Article 16(4) the words 'backward class' are used with a wider
connotation and without any qualification or explanation. Therefore, it must be
construed in the wider perspective. Though the OMs speak of social and educational
backwardness of a class, the primary consideration in identifying a class and in
ascertaining the inadequate representation of that class in the services under the State
under Article 16(4) is the social backwardness which results in educational
backwardness, both of which culminate in economic backwardness. The degree of
importance to be attached to social backwardness is much more than the importance to
be given to the educational backwardness and the economic backwardness, because in
identifying and classifying a section of people as a backward class within the meaning
of Article 16(4) for the reservation of appointments or posts, the 'social backwardness'
plays a predominant role.
252. Ray, C.J. in Jayashree is of the view that "Social backwardness can contribute to
educational backwardness and educational backwardness may perpetuate social
backwardness. Both are often no more than the inevitable corollaries of the extremes of
poverty and the deadening weight of custom and tradition."
253. The very fact that the Commission itself has given a weightage of 12 points to
'social backwardness' and 6 points to 'educational backwardness' and 4 points to
'economic backwardness' (vide paragraph 11.24 of Chapter XI) shows in very clear
terms that 'social backwardness' is taken as a predominant factor in ascertaining the
backwardness of a class under Article 16(4).
254. In M.R. Balaji v. State of Mysore [1963] Suppl. 1 SCR 439 Gajendragadkar, J.
observed that "economic backwardness might have contributed to social
backwardness...." This observation tends to show that Gajendragadkar, J. was of the
view that economic backwardness may contribute to social backwardness. With respect
to the learned Judge, I am unable to agree with his view.
255. Desai, J. in Vasanth Kumar has expressed a similar view that if economic criterion
for compensatory discrimination or affirmative action is accepted, it would strike at the
root cause of "social and educational backwardness...." thereby holding that only
criterion which can be devised is the 'economic backwardness' for identifying 'socially
and educationally backward classes' ignoring the predominance of social
backwardness. I am unable to share this above view.
256. How far the Courts would be competent to identify the 'Backward class' is
explained by Chinnappa Reddy, J. in Vasanth Kumar in the following words:

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

257. Let us have a glance over the Report in identifying the 'backward classes' by
testing the same on the touchstone of various established criteria.
258. In Chapter XI of the Report (Volume I part I) under the caption 'Socio-Educational
Field Survey and Criteria of Backwardness' it is categorically stated that after most
comprehensive enquiries and survey in the socio-educational fields with the association
and help of top social scientists and specialists in the country as well as experts from a
number of disciplines, the Commission had prepared the "Indicators (Criteria) for Social
and Educational Backwardness" on the analysis of data and submitted its report. The
relevant paragraphs 11.23, 11.24 and 11.25 showing the criteria for identification of
backwardness are as follows:

Indicators (Criteria) for Social and Educational Backwardness

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

A. Social

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

(ii) Castes/Classes which mainly depend on manual labour for their livelihood.
(iii) Castes/Classes where at least 25% females and 10% males above the State
average get married at an age below 17 years in rural areas and at least 10% females
and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females in work is at least 25% above the
State average.

B. Educational

(v) Castes/Classes where the number of children in the age group of 5-15 years
who never attended school is at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is
at least 25% above the State average.
(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below
the State average.

C. Economic

(viii) Castes/Classes where the average value of family assets is at least 25% below the
State average.
(ix) Castes/Classes where the number of families living in Kuccha houses is at least
25% above the State average.
(x) Castes/Classes where the source of drinking water is beyond half a kilometer for
more than 50% of the households.
(xi) Castes/Classes where the number of households having taken consumption loan is
at least 25% above the State average.

11.24 As the above three groups are not of equal importance for our purpose, separate
weightage was given to 'Indicators' in each group. All the social 'Indicators' were given a
weightage of 3 points each, Educational 'Indicators' a weightage of 2 points each and
Economic 'Indicators' a wightage of one point each. Economic, in addition to Social and
Educational Indicators, were considered important as they directly flowed from social
and educational backwardness. This also helped to highlight the fact that socially and
educationally backward classes are economically backward also.
11.25 It will be seen that from the values given to each Indicator, the total score adds
upto 22. All these 11 Indicators were applied to all the castes covered by the survey for
a particular State. As a result of this application, all castes which had a score of 50 per
cent (i.e. 11 points) or above were listed as socially and educationally backward and the
rest were treated as 'advanced'. (It is a sheer coincidence that the number of indicators
and minimum point score for backwardness, both happen to be eleven). Further, in case
the number of households covered by the survey for any particular caste were below
20, it was left out of consideration, as the sample was considered too small for any
dependable inference.

259. It is crystal clear that the Commission only on the basis of the galaxy of facts
unearthed and massive statistics collected it, has made its recommendations on a very
scientific basis of course taking 'caste' as the primary criterion in identifying the
backward class in Hindu society and the occupation as the basis for identifying all those
in whose societies, the caste system is not prevalent.
260. It is not necessary for a class to be designated as a backward class that it should
be situated similarly to the Scheduled Castes and scheduled Tribes.
261. Vaidalaingam, J. in Balaram while examining a similar issue after making reference
to the cases of Balaji, Chitralekha and P. Sagar stated, "None of the above decisions
lay down that socially and educationally backward class must be exactly similar in all
respects to that of Scheduled Castes and Scheduled Tribes."
262. Chinnappa Reddy, J. in Vasanth Kumar while dealing with the observations made
in Balaji "that the backward classes for whose improvement special provision is
contemplated by Article 15(4) are in the matter of their backwardness comparable to
Scheduled Castes and Scheduled Tribes" observed thus:

There is no point in attempting to determine the social backwardness of other classes

by applying the test of nearness to the conditions of existence of the Scheduled Castes.
Such a test would practically nullify the provision for reservation for socially and
educationally Backward Classes other than Scheduled Castes and Tribes.

263. Criticism levelled against Mandal Commission Report

264. The learned senior counsel, Mr. N.A. Palkhiwala, Mr. K.K. Venugopal, Smt.
Shyamala Pappu and Mr. P.P. Rao assisted by a battery of layers appearing for the
petitioners condemn the recommendations of the Commissions on the various grounds.
Therefore, it has become unavoidable to meet their challenges, it may not be necessary
otherwise to express any opinion on the correctness and adequacy of the exercise done
by the Mandal Commission.
265. Taking pot-shots at the Mandal Report recommending exclusive reservation for
SEBCs, the belligerent anti-reservationists denigrate the report by making scathing
criticism and indiscriminately trigger off a volley of bullets against the Report. The first
attack against the Report is that it is perpetuating the evils of caste system and
accentuating caste consciousness besides impeding the doctrine of secularism, the net
effect of which would be dangerous and disastrous for the rapid development of the
Indian society as a whole marching towards the goal of the welfare state. According to
them, the identification of SEBCs by the Commission on the basis of caste system is
bizarre and barren of force, much less exposing hollowness. Therefore, the OMs issued
on the strength of the Mandal Report which is solely based on the caste criterion are
violative of Article16(2).
266. The above criticism, in my considered view, is very uncharitable and bereft of the
factual position. Hence it has to be straightaway rejected as unmeritorious since that
Report is not actually based solely on caste criteria but on the anvil of various factors
grouped under three heads i.e. social, educational and economic backwardness but
giving more importance - rightly too - to the social backwardness as having a direct
consequence of caste status.
267. Adopting the policy of 'Running with the hare and hunting with the hounds', a
conciliatory argument was advanced saying that although it is necessary to make
provisions for providing equality of opportunity in matters of public employment 'in
favour of any backward class' in terms of Article 16(4), the present Report based on
1931 census can never serve a correct basis for identifying the 'backward class', that
therefore, a fresh Commission under Article 340(1) of the Constitution is required to be
appointed to make a fresh wide survey sumey through out the length and breadth of the
country and submit a new list of OBCs (other backward classes) on the basis of the
present day Census and that there are million ways of guaranteeing progress of
backward classes and ensuring that it percolates down the social scale, but the Mandal
commission is the one.
268. Firstly, in my view if the above argument is accepted it will result in negation of the
just claim of the SEBCs to avail the benefit of Article 16(4) which is a fundamental right.
269. Secondly, this attack is based on a misconception. A perusal of the Report would
indicate that the 1931 census does not have been even a remote connection with the
identification of OBCs. But on the other hand, they are identified only on the basis on
the country-wide socio-educational field survey and the census report of 1961
particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest
tribes and indigenous tribes personal knowledge gained through extensive touring and
receipt of voluminous public evidence and lists of OBCs notified by various States. It
was only after the identification of OBCs, the Commission was faced with the task of
determining their population percentage and at that stage 1931 census become
relevant. It is to be further noted after 1931 census, no caste-wise statistics had been
collected. In fact, the identification of classes by the Commission was based on the
realities prevailing in 1980 and not in 1931. It is brought to our notice that the same
method had already been adopted in Section 5 of the Scheduled Castes and Scheduled
Tribes Order (Amendment) Act, 1976.
270. Thirdly, the Commission cannot be said to have ignored this factual position and
found fault with for relying on 1931 census. In fact, this position is made clear by the
Commission itself in Chapter XII of its Report, the relevant paragraphs of which read
thus:

12.19 Systematic caste-wise enumeration of population was introduced by the Registrar

General of India in 1881 and discontinued in 1931. In view of this, figures of caste-wise
population beyond 1931 are not available. But assuming that the inter se rate of growth
of population of various castes, communities, and religious groups over the last half a
century has remained more or less the same, it is possible to work out the percentage
that all these groups constitute of the total population of the country.
12.10 Working on the above basis, the Commission culled out caste/community-wise
population figures from the census records of 1931 and, then grouped them into broad
caste-clusters and religious groups. These collectivities were subsequently aggregated
under five major heads i.e. (i) Scheduled Castes and Scheduled Tribes; (ii) Non-Hindu
communities, Religious Groups, etc.; (iii) Forward Hindu Castes and Communities; (iv)
Backward Hindu Caste and Communities; and (v) Backward Non-Hindu Communities....

271. In Balaram, wherein a similar argument was addressed, this Court after going
through the Report of the Backward Classes Commission of the State of Andhra
Pradesh, felt the difficulty of the non-availability of the Caste-wise statistics after 1931
census and pointed out that in Andhra, the figures of 1921 census were available and in
Telangana area, 1931 census of caste-wise statistics was available.
272. In the background of the above discussion, the anti-reservationists cannot have
any legitimate grievance and justifiably demand this Court to throw the Report over-
board on the mere ground that 1931 census had been taken into consideration by the
Commission.
273. As pointed out by this Court in Balaram that no conclusions can always be
scientifically accurate in such matters. If at all the attack perpetrated on the Report
renders any remedy to the anti-reservationists, it would be only for the purpose of
putting the Report in cold storage as has happened to the Report of the First Backward
Classes Commission.
274. Therefore, for the aforementioned reasons, I hold that the above submission made
against the Report with reference to the consideration of Census of 1931 cannot be
conuntenanced.
275. After having gone through the Commission's Report very assiduously and
punctiliously, I am of the firm view that the Commission only after deeply considering
the social, educational and economic backwardness of various classes of citizens of our
country in the light of the various propositions and tests laid down by this Court had
submitted its Report enumerating various classes of persons who are to be treated as
OBCs. The recommendations made in the present Report after a long lull since the
submission of the Report by the First Backward Classes Commission are supportive of
affirmative action programmes holding the members of the historically disadvantaged
groups for centuries to catch up with the standards of competition set up by a well
advanced society.
276. As a matter of fact, the Report wanted to reserve 52% of all the posts in the
Central Government for OBCs commensurate with their ratio in the population.
However, in deference to legal limitation it has recommended a reservation of 27% only
even though the population of OBCs is almost twice this figure.
277. Yet another argument on behalf of the anti-reservationsits was addressed
contending that if the recommendations of the Commission are implemented, it would
result in the sub-standard replacing the standard and the reins of power passing from
meritocracy to mediocrity; that the upshot will be in demoralization and discontent and
that it would revitalize caste system, and cleave the nation into two - forward and
backward - and open up new vistas for internecine conflict and fissiparous forces, and
make backwardness a vested interest.
278. The above tortuous line of reasoning, in my view is not only illogical, inconceivable,
unreasonable and unjustified but also utterly overlooks the stark grim reality of the
SEBCs suffering from social stigma and ostracism in the present day scenario of
hierarchical caste system. The very object of Article 16(4) is to ensure equality of
opportunity in matters of public employment and give adequate representation to those
who have been placed in a very discontent position from time immemorial on account of
sociological reasons. To put it differently, the purpose of Clause (4) is to ensure the
benefits flowing from the fountain of this clause on the beneficiaries - namely the
Backward Classes - who in the opinion of the Constitution makers, would have
otherwise found it difficult to enter into public services, competing with advanced
classes and who could not be kept in limbo until they are benefited by the positive
action schemes and who have suffered and are still suffering from historic disabilities
arising from past discrimination or disadvantage or both. However, unfortunately all of
them had been kept at bay on account of various factors, operating against them
inclusive of poverty. They continue to be deprived of enjoyment of equal opportunity in
matters of public employment despite there being sufficient statistical evidence in proof
of manifest imbalance in Government jobs which evidence is sufficient to support an
affirmative action plan. If candidates belonging to SEBCs (characterised as mediocre by
anti-reservationists), are required to enter the open field competition, along with the
candidates belonging to advanced communities without any preferential treatment in
public Services in their favour and go through a rigid test mechanism being the highly
intelligence test and professional ability test as conditions of employment, certainly
those conditions would operate as "built-in headwinds" for SEBCs. It is, therefore, in
order to achieve equality of employment opportunity, Clause 4 of Article 16 empowers
the State to provide permissible reservation to SEBCs in the matters of appointments or
posts as a remedy so as to set right the manifest imbalance in the field of public
employment.
279. The argument that the implementation of the recommendations of the Commission
would result in demoralisation and discontent has no merit because conversely can it
not be said that the non-implementation of the recommendations would result in
demoralisation and discontent among the SEBCs.
280. Though 'equal protection' clause prohibits the State from making unreasonable
discrimination in providing preferences and facilities for any section of its people,
nonetheless it requires the State to afford substantially equal opportunities to those,
placed unequally.
281. The basic policy of reservation is to off-set the inequality and remove the manifest
imbalance, the victims of which for bygone generations lag far behind and demand
equality by special preferences and their strategies. Therefore, a comprehensive
methodological approach encompassing jurisprudential, comparative, historical and
anthropological conditions is necessary. Such considerations raise controversial issues
transcending the routine legal exercise because certain social groups who are
inherently unequal and who have fallen victims of societal discrimination require
compensatory treatment. Needless to emphasise that equality in fact or substantive
equality involves the necessity of beneficial treatment in order to attain the result which
establishes an equilibrium between two sections placed unequally.
282. It is more appropriate to recall that "There is equality only among equals and to
equate unequals is to perpetuate inequality."
283. Therefore, the submission that the implementation of the recommendations of the
Report will curtail concept of equality as enshrined under Article 14 of the Constitution
and destroy the basic structure of the Constitution, cannot be countenanced.
284. One of the arguments criticising the Report is that the said Report virtually rewrites
the Constitution and in effect buries 50 fathoms deep the ideal of equality and that if the
recommendations are given effect to and implemented, the efficiency of administration
will come to a grinding halt. This submission is tantamount to saying that the reservation
of 27% to SEBCs as per the impugned OMs is opposed to the concept of equality.
285. There is no question of rewriting the Constitution, because the Commission has
acted only under the authority of the notification issued by the President. It has after
laying down the parameters in the light of the various pronouncements of this Court has
ultimately submitted its Report recommending the reservation in tune with the spirit of
Article 16(4).
286. The question whether the candidates, belonging to the SEBCs should be given a
preferential treatment in matters of public employment to such time as it is necessary,
receives a fitting reply in Devadasan wherein Subba Rao, J. (as the learned Chief
Justice then was) has observed, by citing an illustration as to how the manifest
imbalance and inequality will occur otherwise, thus:
To make my point clear, take the illustration of a horse race. Two horses are set down
to run a race - one is a first class race horse and the other an ordinary one. Both are
made to run from the same starting point. Though theoretically they are given equal
opportunity to run the race, in practice the ordinary horse is not given an equal
opportunity to compete with the race horse. Indeed that is denied to it. So a handicap
may be given either in the nature of extra weight or a start from a longer distance. By
doing so, what would otherwise have been a farce of a competition would be made a
real one. The same difficulty had confronted the makers of the Constitution at the time it
was made. Centuries of calculated oppression and habitual submission reduced a
considerable section of our community to a life of serfdom. It would be well nigh
impossible to raise their standards if the doctrine of equal opportunity was strictly
enforced in their case. They would not have any chance if they were made to enter the
open field of competition without adventitious aids till such time when they could stand
on their own legs. That is why the makers of the Constitution introduced Clause (4) in
Article 16.

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

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

'Imagine two runners at the starting line, readying for the 100-yeard dash. One has his
legs shackled, the other not. The gun goes off and the race begins. Not surprisingly, the
unfettered runner immediately takes the lead and then rapidly increases the distance
between himself and his shackled competition. Before the finish line is crossed, over the
judging official blows his whistle, calls off the contest on the grounds that the unequal
conditions between the runners made it an unfair competition, and orders removal of the
shackles.'

Surely few would deny that pitting a shackled runner against an unshackled one is
inequitable and does not provide equality of opportunity. Hence, cancelling the race and
freeing the disadvantaged runner of his shackles seem altogether apporpriate. Once
beyond this point, however, agreement fades rapidly. The key question becomes: what
should be done so that the two runners can resume the contest on a basis of fair
competition? Is it enough after removing the shackles, to place both runners back at the
starting point? Or is "something more" needed, and if so, what? Should the rules of the
running be altered, and if so, how? Should the previously shackled runner be given a
compensatory edge, or should the other runner be handicapped in some way? How
much edge or handicap?

288. To one of the queries posed by the author of the above analogy, the proper reply
would be that even if the shackles whether of iron chains or silken cord, are removed
and the shackled person has become unfettered, he must be given a compensatory
edge until he realises that there is no more shackle on his legs because even after the
removal of shackles he does not have sufficient courage to compete with the runner
who has been all along unfettered.
289. Mr. Ram Awadesh Singh, an intervener demonstrably explained that as unwatered
seeds do not germinate, unprotected backward class citizens will wither away.
290. The above illustration and analogies would lead to a conclusion that there is an
ocean of difference between a well advanced class and a backward class in a race of
open competition in the matters of public employment and they, having been placed
unequally, cannot be measured by the same yardstick. As repeatedly pointed out, it is
only in order to make the unequals equal, this constitutional provision, namely, Clause
(4) of Article 16 has been designed and purposely introduced providing some
preferential treatment to the backward class. It is only in case of denial of such
preferential treatment, the very concept of equality as enshrined in the Constitution, will
get buried 50 fathoms deep.
291. A programme of reservation may sacrifice merit but does not in any way sacrifice
competence because the beneficiaries under Article 16(4) have to possess the requisite
basic qualifications and eligibility and have to compete among themselves though not
with the mainstream candidates.
292. As Chinnappa Reddy, J. in Vasanth Kumar has rightly observed, "Always one
hears the word 'efficiency' as if it is sacrosanct and the sanctorum has to be fiercely
guarded. 'Efficiency' is not a mantra which is whispered by the Guru in the Sishya's
ear."
293. In yet another context, in the same decision, the learned Judge at page 394 has
firmly and irrefutably put the merit argument at rest stating thus:

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

294. Be that as it may, the intelligence, merit, ability, competence, meritocracy,

administrative efficiency and achievement cannot be measured by skin-pigmentation or
by the surname of an individual indicating his caste.
295. In this regard, the observation of Subba Rao, J. in Devadasan at page 706 may be
recapitulated, which to some extent answers the doubt raised by a section of anti-
reservationists that reservation will result in deterioration in the standard of service. The
said observation reads as follows:

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

Submission on the theory of past discrimination based on the decisions of the Supreme
Court of United States
296. Based on certain American decisions, it has been urged that only that group or
section of people suffering from the lingering effects of past discrimination can be
classified as 'backward classes' and not others. This submission has to be mentioned
for being simply rejected for more than one reason. Even today, the caste discrimination
is very much prevalent in India particularly in the rural areas. Secondly, even among the
Judges of the Supreme Court of United States, there is a division of opinion on the
theory of lingering effects of past discrimination. Thirdly, this theory cannot be imported
to the Indian conditions where the Hindu society even today is suffering from the firm
grip of discrimination based on caste system. The vastness and richness of the
materials unearthed by the various Commissions inclusive of States' Commissions
unambiguously and pellucidly reveal that in our country, representation of the SEBCs in
the services under the State is grossly inadequate when compared to the representation
of the advanced class of citizens, leave apart the complete absence of reservation for
SEBCs in the Central Services. This inadequate representation is not confined to any
specific section of the people, but all those who fall under the group of social
backwardness whether they are Shudras of Hindu community or similarly situated other
backward classes of people in other communities, namely, Muslims, Sikhs, Christians
etc.
297. Drawing strength on the opinion of Powell, J in Regents of the University of
California v. Allan Bakke 57 L Ed 2d 750, an argument has been advanced that
Article 16(1) permits only preferences but not reservations. In the above Bakke's case, a
white male who had been denied admission to the medical school at the University of
California at Davis for two consecutive years, instituted an action for declaratory and
injunctive relief against the Regents of the University in the Superior Court of Yolo
County, California alleging the invalidity under the equal protection clause of the
Fourteenth Amendment, a provision of the California Constitution, and the prescription
in racial discrimination in any programme receiving federal financial assistance of the
medical school's special admissions programme. The Supreme Court announced its
decision amid confusion and controversy. There was no clear majority, but a three-way
split namely four Judges took one view and four other Judges took a different view,
leaving Justice Powel straddling the middle. In their joint opinion partially concurring and
partially dissenting, Justices Brennan, White, Marshal and Blackmun took issue with
Powell's conclusion that the Davis programme was unconstitutional and said, "We
cannot...let color blindness become myopia which masks the reality that many 'created
equal' have been treated within our lifetimes as inferior both by the law and by their
fellow citizens."
298. Attention was also drawn to Defunis v. Charles Ode guard [1974] 40 L. Ed. 2nd
164 .
299. The analytical study of American cases shows that the American-style justification
of positive discrimination is on the ground of utility whereas the Indian-style justification
is on the ground of constitutional rights. Therefore, the decision in relation to a racial
discrimination relating to an admission to the medical school cannot be of much
assistance in the matter of identification of 'backward classes' falling under Article16(4).
The dicta in Bakke and Defunis is one akin to the principle covered under
Article 15(4) and not under Article 16(1) or 16(4).
300. Whether Article 16(4) is an exception to Articles 16(1) and (2)?
301. Mr Parasaran, the learned senior counsel, appearing on behalf of the Union of
India articulated that Articles 16(4) and 335 are so worded as to give a wide latitude to
the State in the matter of reservation and that Article 16(4) having no-obstinate clause
reading "Nothing in this Article shall prevent the State from making any provision...." has
an over-riding effect on Article 16(2).
302. In support of the above argument based on the non-obstante clause, much
reliance was placed on various decisions, namely, (1) Punjab Province v. Daulat Singh
and Ors. 1942 S.C.R. 67 ; (2) Orient Paper and Industries Ltd. v. State of Orissa,
MANU/SC/0169/1991 : AIR1991SC672 and 678; (3) In re. Hatschek's Patents 1909
Chancery Division Vol. II 68 at 82 and 85 and (4) Hari Vishnu Kamath v. Syed Ahmed
Ishaque and Ors. MANU/SC/0095/1954 : [1955]1SCR1104 .
303. Yet another argument placing reliance on Triloki Nath's case (I) (supra) was
advanced contending that Article 16(4) is an enabling provision conferring a
discretionary power on the State to make a reservation of appointments in favour of
backward class of citizens. Placing reliance on the view expressed by Wanchoo, J. (as
the learned Chief Justice then was) in General Manager, Southern Railways
v. Rangachari MANU/SC/0388/1961 : (1970)IILLJ289SC it was further urged that
Article 16(4) which is in the nature of an exception or proviso to Article 16(1) cannot
nullify equality of opportunity guaranteed to all citizens by that article.
304. In my view, that Clause (4) of Article 16 is not an exception to Article 16(1) and (2)
but it is an enabling provision and permissive in character overriding Article 16(1) and
(2); that it is a source of reservation for appointments or posts in the Services so far as
the backward class of citizens is concerned and that under Clause (1) of
Article 16 reservation for appointments or posts can be made to other sections of the
society such as physically handicapped etc.
305. There is complete unanimity of judicial opinion of this Court that under
Article 16(4) the State can make adequate provisions for reservations of appointments
of posts in favour of any backward class of citizens, if in the opinion of the State such
'backward class' is not adequately represented in the State. In fact in B. Venkataramana
v. State of Madras AIR 1951 SC 229 a seven Judges Bench of this Court held that
"reservation of posts in favour of any backward class of citizens cannot, therefore, be
regarded as unconstitutional". Not a single decision of this Court has cast slightest
shadow of doubt on the constitutional validity of reservation. Therefore, in view of the
above position of law. I am not inclined to embark upon an elaborate discussion on this
question any further.
306. Whether Reservation under Article 16(4) can be made by Executive Order?
307. The next submission that the provision for reservation of appointments or posts
under Article 16(4) can be made only by a legislation and not by an executive order is
unsustainable. This contention as a matter of fact has already been answered in (1)
Balaji (supra) and (2), Comptroller & Auditor General v. Mohan Lal Mehrotra
MANU/SC/0495/1991 : (1992)ILLJ335SC .
308. In passing, it may be stated that this Court while reversing the judgment of the
Punjab and Haryana High Court in favour of the appellant State of Punjab v. Hirala Lal
and Ors. MANU/SC/0066/1970 : [1971]3SCR267 upheld the reservation which was
made not by a legislation but by an executive order. See also Mangal Singh v. Punjab
State Police MANU/PH/0065/1968.
309. Agreeing with the reasonings of Balaji, I hold that the provision or reservation in the
"Services under the State" under Article 16(4) can be made by an executive order.
310. Whether the power conferred under Article 16(4) is coupled with duty?
311. Mr. K. Parasaran put forth an argument that the enabling power conferred under
Article 16(4) is intended for the benefit of the 'backward classes of citizens' who in the
opinion of the State are not adequately represented in the Services under the State and
that the power is one coupled with a duty and, therefore, has to be exercised by the
state for the benefit of those for whom it is intended. Reference was made to H.W.R.
Wade Administrative Law v. Edn. Pages 228 and 229. Halsbury's Laws of England IV
Edn. Vol. V paras page 34 para 27 and page 35 para 29. He adds that the duty caused
on the State is to be exercised in keeping with the directive principles laid down under
Article 46 to promote with special care the educational and economic interests of the
weaker sections of the people and, in particular, of the Scheduled Castes and the
Scheduled Tribes and to protect them from social injustice and all other forms of
exploitation. In this connection, attention was drawn to a few decisions of this Court,
namely, (1) Chief Controlling Revenue Authority v. Maharashtra Sugar Mills Ltd.
MANU/SC/0001/1950 : [1950]1SCR536 ; (2) Official Liquidator v. Dharti Dhan 964; (3)
Delhi Administration v. I.K. nangia MANU/SC/0251/1979 : 1980CriLJ834 ; and (4)
Jaganathan (supra).
311. Whether formation of opinion by State is subjective?
312. The expression "in the opinion of the State" would mean the formation of opinion
by the State which is purely a subjective process. It cannot be challenged in a Court on
the grounds of propriety, reasonableness and sufficiency though such an opinion is
required to be formed on the subjective satisfaction of the Government whether the
identified 'backward class of citizens' are adequately represented or not in the Services
under 'the State. But for drawing such requisite satisfaction, the existence of
circumstances relevant to the formation of opinion is a sine quo non. If the opinion
suffers from the vice of non-application of mind or formulation of collateral grounds or
beyond the scope of Statute, or irrelevant and extraneous material then that opinion is
challengeable. See (1) Dr. N.B. Khare v. The State of Delhi MANU/SC/0004/1950 :
[1950]1SCR519 ; (2) Govindji v. Municipal Corporation, Ahmedabad [1957] Bom. 147 ;
(3) Virendra v. The State of Punjab and Anr. MANU/SC/0023/1957 : [1958]1SCR308 (4)
The Barium Chemicals Ltd. and Anr. v. The Company Ltd. Board and Ors. [1966] Suppl.
SCR 311 and (5) Rohtas Industries v. S.D. Agarwal and Ors. MANU/SC/0020/1968 :
[1969]3SCR108 .
313. In the present case, nothing is shown that the opinion of the Government as
regards the inadequacy of representation in the Services is vitiated on any of the
grounds mentioned above.
314. Whether the policy of Government can be subjected to judicial review:
315. The action of the Government in making provision for the reservation of
appointments or posts in favour of any 'backward class of citizens' is a matter of policy
of the Government. What is best for the 'backward class' and in what manner the policy
should be formulated and implemented bearing in mind the object to be achieved by
such reservation is a matter for decision exclusively within the province of the
Government and such matters do not ordinarily attract the power of judicial review or
judicial interference except on the grounds which are well settled by a catena of
decisions of this Court. Reference may be made to (1) Hindustan Zinc v. A.P. State
Electricity Board MANU/SC/0340/1991 : [1991]2SCR643 ; (2) Sitaram Sugars v. Union
of India and Ors. [1990] 3 SCC 233 ; (3) D.C.M. v. S. Paramjit Singh
MANU/SC/0410/1990 : AIR1990SC2286 ; (4) Minerva Talkies v. State of Karnataka and
Ors. 1988 Suppl. SCC 176 ; (5) State of Karnataka v. Ranganath Reddy
MANU/SC/0062/1977 : [1978]1SCR641 ; (6) Kerala State Electricity Board v. S.N.
Govind Prabhu [1986] 4 SCC ; (7) Prag Ice Company v. Union of India and Ors. [1978]
2 SCC 459 ; (8) Saraswati Industries Syndicate Ltd. v. Union of India
MANU/SC/0075/1974 : [1975]1SCR956 ; (9) Murti Match Works v. Assistance Collector,
Central Excise and Ors. MANU/SC/0058/1974 : 1978(2)ELT429(SC) ; (10) I. Govindraja
Mudaliar v. State of Tamil Nadu and Ors. MANU/SC/0323/1973 : [1973]3SCR222 : and
(11) Narender Kumar v. Union of India and Ors. [1969] 2 SCR 375 .
316. To what extent can the reservation be made?
317. The next baffling question relates to the permissible extent of reservation in
appointments.
318. It was for the first time that this Court in Balaji has indicated broadly that the
reservation should be less than 50% and the question how much less than 50% would
depend on the relevant prevailing circumstances in each case. Though in Balaji, the
issue in dispute related only to the reservation prescribed for admissions in the medical
college from the educationally and socially backward classes, scheduled caste and
scheduled tribes as being violative of Article 15(4), this Court after expressing its view
that it should be less than 50% observed further that "the provisions of Article 15(4) are
similar to those of Article 16(4).... Therefore, what is true in regard to Article 15(4) is
equally true in regard to Article 16(4)...reservation made under Article 16(4)beyond the
permissible and legitimate limits would be liable to be challenged as a fraud on the
Constitution." This decision has gone further holding that the reservation of 68% seats
made in that case was offending Article 15(4) of the Constitution. To say in other words,
Balaji has fixed that the maximum limit of reservation all put together should not exceed
50% and if it exceeds, it is nothing but a fraud on the Constitution. Even at the
threshold, I may emphatically state that I am unable to agree with the proposition fixing
the reservation for SEBCs at 50% as the maximum limit.
319. Mr. Jethmalani strongly articulated that the observation in Balaji that reservation
under Article 16(4) should not be beyond 50% is only an obiter dicta since that question
did not at all arise for consideration in that case. Therefore, according to him, this
observation is not a law declared by the Supreme Court within the meaning of
Article 141 of the Constitution. He continued to state that unfortunately some of the
subsequent decision have mistakenly held as if the question of permissible limit has
been settled in Balaji while, in fact, the view expressed in it was an obiter dicta.
According to him, the policy of reservation is in the nature of affirmative action, firstly to
eliminate the past inhuman discrimination and secondly to ameliorate the sufferings and
reverse the genetic damage so that the people belonging to 'backward class' can be
uplifted. When it is the main objective of Clause (4) of Article 16 any limitation on
reservation would defeat the very purpose of this Article falling under Fundamental
Rights and, therefore, reservation if the circumstances so warrant can go even upto
100%.
320. This view of Mr. Jethmalani has been fully supported by Mr. Siva Subramaniam
appearing on behalf of the State of Tamil Nadu who pointedly referred to the speech of
the Chief Minister of Tamil Nadu made in the Chief Ministers' Conference held on 10th
April 1992 and produced a copy of the printed speech of the Chief Minister, issued by
the Government of Tamil Nadu as an annexure to the written submission. It is seen from
the said annexure that the Chief Minister has categorically emphasised the stand of the
Government of Tamil Nadu stating that the total reservation for backward classes,
scheduled castes and scheduled tribes is 69%; that it is but fair and proper that socially
and educationally backward classes (alone) as a whole should be given at least 50%
reservation for employment opportunities in Central Government services and its
undertakings as well as for admission in educational institutions run by the Central
Government. It has also been pointed out that in consonance with this avowed policy,
the Tamil Nadu Legislative Assembly passed unanimously a resolution on 30.9.1991
urging the Government of India to adopt a policy of 50% reservation for the Backward
Classes instead of 27% and to apply this reservation not only for employment
opportunities in all Central Government departments and Public Sector Undertakings,
but also for admission in all Educational Institutions run by the Central Government.
321. Mr. Rajiv Dhawan appearing in W.P. No. 1094/91 submits that the limits to the
reservation in Article 16(4)cannot be fixed on percentage but it must be with the ulterior
objective of achieving adequate representation for 'backward classes'.
322. I see much force in the above submissions and hold that any reservation in excess
of 50% for 'backward classes' will not be violative of Articles 14 and/or 16 of the
Constitution. But at the same time, I am of the view that such reservations made either
under Article 16(4) or under Article 16(1) and (4) cannot be extended to the totality of
100%. In fact, my learned brother, P.B. Sawant, J in his separate judgment has also
expressed a similar view that "there is no legal infirmity in keeping the reservations
under Clause (4) alone or under Clause (4) and Clause (1) of Article 16 together
exceeding 50 per cent" though for other reasons the learned Judge has concluded that
ordinarily the reservations kept under Article 16(1) and 16(4) together should not
exceed 50% of the appointments in a cadre or service in any particular year, but for
extraordinary reasons this percentage may be exceeded. My learned brother, B.P.
Jeevan Reddy, J in his separate judgment has expressed his view that in given
circumstances, some relaxation in the strict rule of reservation may become imperative
and added that in doing so extreme caution is to be exercised and a special case made
out.
323. As to what extent the proportion of reservation will be so excessive as to render it
bad must depend upon adequacy of representation in a given case. Therefore, the
decisions fixing the percentage of reservation only upto the maximum of 50% are
unsustainable. The percentage of reservation at the maximum of 50% is neither based
on scientific data nor on any established and agreed formula. In fact, Article 16(4) itself
does not limit the power of the Government in making the reservation to any maximum
pecentage; but it depends upon the quantum of adequate representation required in the
Services. In this context, it would be appropriate to recall some of the decisions of this
Court, not agreeing with Balaji as regards the fixation of percentage of reservation.
324. The question of percentage of reservation was examined in Thomas wherein Fazal
Ali, J not agreeing with Balaji has observed thus:

.... Clause (4) of Article 16 does not fix any limit on the power of the Government to
make reservation. Since Clause (4) is a part of Article 16 of the Constitution it is
manifest that the State cannot be allowed to indulge in excessive reservation so as to
defeat the policy contained in Article 16(1). As to what would be a suitable reservation
within permissible limits will depend upon the facts and circumstances of each case and
no hard and fast rule can be laid down, nor can this matter be reduced to a
mathematical formula so as to be adhered to in all cases. Decided cases of this Court
have no doubt laid that the percentage of reservation should not exceed 50%. As I read
the authorities, this is, however, a rule of caution and does not exhaust all categories.
Suppose for instance a State has a large number of backward classes of citizens which
constitute 80% of the population and the Government, in order to give them proper
representation, reserves 80% of the jobs for them, can it be said that the percentage of
reservation is bad and violates the permissible limits of Clause (4) of Article 16? The
answer must necessarily be in the negative. The dominant object of this provision is to
take steps to make in adequate representation adequate.

325. Krishna Iyer, J in the same decision has agreed with the above view of Fazal Ali, J
stating that "...the arithmetical limit of 50% in any one year set by some earlier rulings
cannot perhaps be pressed too far."
326. Though Mathew, J did not specifically deal with this maximum limit of reservation,
nevertheless the tenor of his judgment indicates that he did not favour 50% rule.
327. Chinnappa Reddy, J in Karamchari case MANU/SC/0058/1980 : (1981)ILLJ209SC
(supra) has expressed his view on the ceiling of reservation as follows:

.... There is no fixed ceiling to reservation or preferential treatment in favour of the

Scheduled Castes and Scheduled Tribes though generally reservation may not be far in
excess of fifty percent. There is no rigidity about the fifty percent rule which is only a
convenient guideline laid down by Judges. Every case must be decided with reference
to the present practical results yielded by the application of the particular rule of
preferential treatment and not with reference to hypothetical results which the
application of the rule may yield in the future. Judged in the light of this discussion I am
unable to find anything illegal or unconstitutional in any one of the impugned orders and
circulars....

328. Again in Vasanth Kumar, Chinnappa Reddy, J reiterates his view taken in
Karamchari in the following words:
We must repeat here, what we have said earlier, that there is no scientific statistical
data or evidence of expert administrators who have made any study of the problem to
support the opinion that reservation in excess of 50 per cent may impair efficiency.

329. I fully share the above views of Fazal Ali, Krishna Iyer, Chinnappa Reddy, JJ
holding that no maximum percentage of reservation can be justifiably fixed under
Articles 15(4) and/or 16(4) of the Constitution.
330. It should not be out of place to recall the observation of Hegde, J in Hira Lal
observing," The extent of reservation to be made is primarily a matter for the State to
decided. By this we do not mean to say, that the decision of the State is not open to
judicial review.... The length of the leap to be provided depends upon the gap to be
covered.
(emphasis supplied)
331. Desai, J in Vasanth Kumar expressed his view that in dealing with the question of
reservation in favour of Scheduled Castes, Scheduled Tribes as well as other SEBCs
'Judiciary retained its traditional blindfold on its eyes and thereby ignored perceived
realities."
Whether the further arbitrary classification as poorer sections' from and out of the
identified SEBCs is permissible under Article 16(4) after acceptance and approval of the
list without reservation and whether such classification suffers from non-application of
mind?
332. The most important pivotal and crucial issue that I would now like to ponder over
relates to the intent of para 2(i) of the OM dated 25th September 1991 whereunder it is
declared that "Within the 27% of the vacancies in civil posts and services under the
Government of India reserved for SEBCs, preference will be given to the candidates
belonging to the poorer sections of the SEBCs. In case sufficient number of such
candidates are not available, unfilled vacancies shall be filled by the other SEBC
candidates".
(emphasis supplied)
333. To say in other words, the Government intends to prescribe an income ceiling for
determination of 'poorer sections' of the SEBCs who will be eligible to avail of the
preference of reservation of appointments or posts in the Services under the State. It is
an admitted fact that the Government so far has not laid down any guideline or test for
identifying and ascertaining the 'poorer sections' among the identified SEBCs.
334. The OM has specifically used the expression, 'poorer sections' but not 'weaker
sections' as contemplated under Article 46 of the Constitution. Though the expressions
'poorer sections' and 'weaker sections' may connote in general 'the disadvantaged
position of a section of the people' they do not convey one and the same meaning and
they are not synonymous. When the OM deliberately uses the expression 'pooer
sections', it has become incumbent to examine what that expression means and
whether there can be any sub-classification as 'poorer' and 'non-poorer' among the
same category of potential backward class of citizens on the anvil of economic criterion.
335. The word 'poor' lexically means "having little or no money, goods or other means of
support" (Webster's Encyclopedic Unabridged Dictionary) or "lacking financial or other
means of subsistence" (Collins English Dictionary).
336. The OM uses the expression 'poorer' in its comparative term for the word 'poor'. It
is common knowledge that the superlative term for the word 'poor' is 'poorerst'. The very
usage of the word 'poorer' is in comparison with the positive word 'poor'. Therefore, it,
necessarily follows that the OM firstly considers all the identified SEBCs in general as
belonging to 'poor sections' from and out of which the 'poorer sections' are to be culled
out by applying a test to be yet formulated by the Government evidently on economic
criterion or by application of poverty test based on the ceiling of income. After the
segregation of 'poorer sections' of the SEBCs, the left out would be the 'poor sections'.
By the use of the word 'poorer', the Government is super-imposing a relative poverty
test for identifying and determining a preferential class among the identified SEBCs. It is
stated that the preference will be given first to the 'poorer sections' and only in case
there are unfilled vacancies, those vacancies will be filled by the left out SEBCs,
namely, those other than the poorer sections. In other words, it means that all the
identified SEBCs do not belong to affluent sections but to poor and poorer sections, that
the expression 'poorer sections' denotes only the economically weaker sections of
SEBCs compared with the remaining same category of SEBCs and that those, other
than the 'poorer sections' although socially and educationally backward are
economically better off compared with the 'poorer sections'. The view that all the
identified SEBCs are considered as 'poor' or 'poorer' is fortified by the fact that there is
an inbuilt explanation in the amended OM itself to the effect that those who do not fall
within the category of 'poorer sections' also will be entitled for the benefit of reservation
but of course subject to the availability of unfilled vacancies.
337. An argument was advanced that for identifying 'poorer sections', the. 'means test'
signifying an imposition of outer income limit should be applied and those who are
above the cut off income limit should be excluded so that the better off sections of the
SEBCs may be prevented from taking the benefit earmarked for the less fortunate
brethren and the only genuine and truly members of 'poorer sections' of SEBCs may
avail the benefit of reservation. In support of this argument, an attempt has been made
to draw strength on two decisions of this Court rendered in Jayashree and Vasanth
Kumar.
338. Chief Justice Ray in Jayashree seems to have been inclined to take the view that
reservation of seats in educational institutions should not be allowed to be enjoyed by
the rich people suffering from the same communal disabilities.
339. Chinnappa Reddy, J in Vasanth Kumar recognises this 'means test' saying that "an
upper income ceiling would secure the benefit of reservation to such of those members
of the class who really deserved it", with which view Venkataramiah, J (as the learned
Chief Justice than was) has agreed.
340. Thus the above argument based on 'means test' though seems to be plausible at
the first sight is, in my opinion, not well founded and must be rejected on the ground that
the identified category of SEBCs, having common characteristics or attributes - namely
the potential social backwardness cannot be bisected or further classified by applying
the economic or poverty test.
341. A doubt has been created as to whether the word 'poorer' connotes economic
status or social status or is to be understood in any other way.
342. The word 'poorer' when examined in the context in which it is deployed both
syntactically and etymologically, in my view, may not convey any other meaning except
relative poverty or comparative economic status. If any other meaning is imported which
the government evidently appears to have not contemplated, virtually one will be
rewriting the second OM.
343. An order of a Constitution Bench dated 1st October 1991 clearly spells out that that
Bench was of the view that 'poorer sections' are to be identified by the economic
criterion. The relevant portion of the above Order reads as follows:

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

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

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

345. The above Orders of this Court support my view that the Government has to
identify the 'poorer sections' only by the economic criteria or by the application of
poverty test otherwise called 'means test'. It appears that this Court has all along been
given to understand that 'poorer sections' will be tested by the Government on
economic criterion.
346. The above view is further fortified by the very fact that the second OM providing
10% of the reservation 'for economically backward sections of the people not covered
by any other scheme of the reservation' indicates that the Government has taken only
the economic criteria in making the classification of the various sections of the people
(emphasis supplied). Therefore, I proceed on the basis that the second OM identifies
the 'poorer sections' only on the basis of economic status.
347. When the 'means test' is analysed in depth so as to explore its merits and
demerits, one would come to an inevitable conclusion that it is not a decisive test but on
the other hand it will serve as a protective umbrella for many to get into this segregated
section by adopting all kinds of illegal and unethical methods. Further, this test will be
totally unworkable and impracticable in the determination of "getting somebody in and
getting somebody out" from among the same identified SEBCs. If this 'means test'
argument is accepted and put into action by scanning the identified SEBCs by applying
a super-imposition test, the very object and purpose of reservation, intended for the
socially backward class would reach only a cul-de-sac and the identified SEBCs would
be left in a maze. In my considered opinion, it will be a futile exercise for the courts to
find out the reasons in support of the division between and among the group of SEBCs
and make rule therefor, for multiple reasons, a few of which which I am enumerating
hereunder.

(1) The division among the identified and ascertained SEBCs having common
characteristics and attributes - the primary of which being the potential social
backwardness, as 'poorer sections' and 'non-poorer sections' on the anvil of economic
criterion or by application of a superimposition test of relative poverty is impermissible
as being opposed to the scope and intent of Article 16(4).
(2) If this apex Court puts its seal of approval to para 2(i) of the second OM whereunder
a section of the people under the label of 'poorer sections' is carved out from among the
SEBCs, it becomes a law declared by this Court for the entire nation under
Article 141 of the Constitution and is binding on all the Courts within the territory of India
and that the decision of this Court on a constitutional question cannot be over-ridden
except by the constitutionally recognised norms. When such is the legal position, the
law so declared should be capable of being effectively implemented in its applicability to
some rare or freakish cases. The law should not be susceptible of being abused or
misused and leave scope for manipulation which can remain undetected. If the law so
declared by this Court is indecisive and leaves perceivable loopholes, by the aid of
which one can defeat or circumvent or nullify that law by adopting an insidious, tricky,
fraudulent and strategic device to suit one's purpose then that law will become otiose
and remain as a dead letter.
I would like to indicate the various reasons in support of my opinion that this process of
elimination or exclusion of a section of people from and out of the same category of
SEBCs cannot be sustained leave apart the authority of the Government to take any
decision and formulate its policy in its discretion or opinion provided that the policy is not
violative of any constitutional or legal provisions or that discretion or opinion is not
vitiated by non-application of mind, arbitrariness, formulation of collateral grounds or
consideration of irrelevant and extraneous material etc.

(a) If the annual gross income of a government servant derived from all his sources
during a financial year is taken as a test for identifying to 'poorer sections', that test
could be defeated by reducing the income below the ceiling limit by a Government
servant voluntarily going on leave on loss of pay for few months during that financial
year so that he could bring his annual income within the ceiling limit and claim the
benefit of reservation meant fo r 'poorer sections'. Similarly, a person owning extensive
land also may lay a portion of his land fallow in any particular year or dispose of a
portion of his land so as to bring his agricultural income below the ceiling limit so that he
may fall within the category of 'poorer sections'.
(b) The fluctuating fortunes or misfortunes also will play an important role in determining
whether one gets within the area of 'poorer sections' or gets out of it.
(c) Take a case wherein there are two brothers belonging to the same family of
'backward class' of whom one is employed in Government service and another is
privately employed or has chosen some other profession. The annual income of the
Government employee if slightly exceeds the ceiling limit, his children will not fall within
the category of 'poorer sections' whereas the other brother can deceitfully show his
income within the ceiling limit so that his children can enjoy that benefit.
(d) Among the pensioners also, the above anomaly will prevail as pointed out in Janaki
Prasad.
(e) Any member of SEBCs who is in Government job and is on the verge of his
superannuation and whose income exceeds the ceiling limit, will go out of the purview of
'poorer sections' but in the next financial year, he may get into the 'poorer sections' if his
total pensionary benefits fall within the ceiling limit.
(f) A person who is within the definition of 'poorer sections' may suddenly go out of its
purview by any intervening fortuitous circumstances such as getting a marital alliance in
a rich family or by obtaining any wind-fall wealth.
(g) If poverty test is made applicable for identifying the 'poorer sections' then in a given
case wherein a person is socially oppressed and educationally backward but
economically slightly advanced in a particular year, he will be deprived of getting the
preferential treatment.

The above are only by way of illustrations, though this type can be multiplied, for the
purpose of showing that a person can voluntarily reduce his income and thereby
circumvent the declared law of this Court. In all the above illustrations, enumerated as
(a) to (g), the chance of "getting into or getting out of the definition of 'poorer sections'
will be like a see-saw depending upon the fluctuating fortunes or misfortunes.
(3) The income-test for ascertaining poverty may severally suffer from the vice of
corruption and also encourage patronage and nepotism.
(4) When the Government has accepted and approved the lists of SEBCs, identified by
the test of social backwardness, educational backwardness and economic
backwardness which lists are annexed to the Report, there is no justification by dividing
the SEBCs into two groups, thereby allowing one section to fully enjoy the benefits and
another on a condition only if there are unfilled vacancies.
(5) The elimination of a section of SEBCs by putting an arbitrary and unnecessary
unjustified. This process of elimination or exclusion of a section of SEBCs will be
tentamount to pushing those persons into the arena of open competition along with the
forward class if there are no unfilled vacancies out of the total 27% meant for SEBCs.
This will cause an irretrievable injustice to all the non-poorer sections though they are
also theoretically declared as SEBCs.
(6) The second OM providing a scanning test is neither feasible nor practicable. It will
be perceptible and effectual only if the entire identified backward class enjoys the
benefit of reservation.
(7) The proposed 'means test' is highly impressionistic test, the result of which is likely
to be influenced by many uncertain and imponderable facts.
(8) It may theoretically sound well but in practice attempts may be made in a
underhanded way to get round the problem.

348. What I have indicated above is only the tip of the iceberg and more of it is likely to
surface at the time when any scanning process and super-imposition test are put into
practice.
349. In this connection, I would like to mention the views of the Tamil Nadu Government
as expressed by the Chief Minister of Tamil Nadu in the Chief Ministers' Conference
held in New Delhi (already referred to) stating that the application of income limit on
reservation will exclude those people whose income is above the 'cut-off limit and
literally, it means that they will come under the open competition quota and if caste is
not the sole criterion, income limit cannot also be the decisive and determining factor for
social backwardness and that the exclusion of certain people from the benefits of
reservation by the application of economic criterion will not bring the desired effect for
the advancement and improvement of the backward classes who have suffered
deprivation from the time immemorial.
350. Reference also may, be made to Balaji wherein it has been ruled that backward
classes cannot be further classified into backward and more backward and that such a
sub-classification "does not appear to be justified under Article 15(4)". This view, in my
opinion, can be equally applied even for sub-classification under Article16(4).
351. Arguing with the above view of Balaji, I hold that the further sub-classification as
'poorer sections' out of the ascertained SEBCs after accepting that group in which the
common thread of social backwardness runs through as an identifiable unit within the
meaning of the expression 'backward class', is violative of Article 16(4).
352. Of course, in Vasanth Kumar, Chinnappa Reddy, J. in his separate judgment has
taken a slightly contrary view, holding that there can be classification for providing some
reservation to the more backward classes compared to little more advanced backward
classes. This view is expressed only by the learned Judge (Chinnappa Reddy, J.) on
which view other Judges of that Bench have not expressed any opinion. However, it
appears that the learned Judge has not said that the entire reservation should go only to
the more backward classes but only some percentage of reservation should be provided
and earmarked exclusively for the more backward classes.
353. In the present case, the entire reservation of 27 per cent is given firstly to be
enjoyed by the 'poorer sections' and only the unfilled vacancies, if any, can be availed of
by others. As I have already held, the view expressed by the Constitution Bench in
Balaji is more acceptable to me.
354. It may not be out of place to mention here that in Tamil Nadu, based on one of the
recommendations of the First Backward Classes Commission constituted in 1969 -
known as 'Sattanatham Commission' - the Government issued orders in G.O. Ms. No.
1156, Social Welfare Department, dated 2nd July 1979, superimposing the income
ceiling of Rs. 9,000 per annum as additional criterion for the backward classes to be
eligible for reservation for admission in educational institutions and recruitment to public
services. This order was challenged before the High Court but the High Court by 2:1
upheld the G.O. However, the order provoked a considerable volume of public criticism.
After an All-party meet, the Government in G.O. Ms. No. 72, Social Welfare Department
dated 1st February 1980 revoked their orders and the position as it stood prior to 2nd
July 1979 was restored. Simultaneously, by another G.O. Ms. No. 73, Social Welfare
Department dated 1st February 1980, the Government raised the percentage of
reservation for backward classes from 31 per cent to 50 per cent commensurate with
the population of the backward classes in the State. Both the GOs i.e. G.O. Ms. No. 72
and 73 dated 1st February 1980 were challenged in the Supreme Court in Writ Petition
Nos. 4995-4997 of 1980 along with W.P. No. 402 of 1981.
355. The Constitution Bench of this Court by its order dated 14th October 1980 directed
the State Government to appoint another Commission to review the then existing
enumeration and classification of backward classes and to take necessary steps for
identifying the backward classes in the light of the report of the said Commission and
that both the GOs "shall lapse after January 1, 1985". However, by order dated
5.5.1981, the above writ petitions were directed to be listed alongwith W.P. Nos. 1297-
98/79 and 1497/79 (Vasanth Kumar). Thereafter, a number of CMPs in the writ petitions
for extension of time for implementation of this Court's directions were filed. This Court
periodically extended the time upto July 1985. A CMP for further extension of time was
dismissed on 23.7.1985 by a three-Judges Bench of this Court since the Judgment in
Vasanth Kumar involving the same question was delivered on 8.5.1985. Vide (1) Orders
of Supreme Court in W.P. Nos. 4995-97/1980 and W.P. No. 402/1981, (2) Orders of
High Court of Madras in W.P. Nos. 3069, 3292 and 3436/79 dated 20th August 1979
and (3) Paragraph 1.01 of Chapter I of the Report of the Tamil Nadu Second Backward
Classes Commission (popularly known as Ambasankar Commission).
356. We have referred to the above facts for the purpose of showing that the fixation of
ceiling limit on economic criterion was not successful and that for identifying the 'weaker
sections', ceiling limit is not the proper test, once the backward class is identified and
ascertained.
357. Further, it is clear for the afore-mentioned reasons that the Executive while making
the division of sub-classification has not properly applied its mind to various factors,
indicated above which may ultimately defeat the very purpose of the division or sub-
classification. In that view, para 2(i) not only becomes constitutionally invalid but also
suffers from the vice of non-application of mind and arbitrariness.
358. For the fermentation reason, I am of the firm view that the division made in the
amended OM dividing a section of the people as 'poorer sections' and leaving the
remaining as 'non-poorer sections' on economic criterion from and same unit of
identified and ascertained SEBCs, having common characteristics the primary of which
is the social backwardness as listed in the report of the Commission, is not permissible
and valid and such a division or sub-classification is liable to be struck down as being
violative of Clause (4) of Article 16 of the Constitution.
359. A further submission has been made stating that the benefits of reservation are
often snatched away or eaten up by top creamy layer of socially advanced backward
class who consequent upon their social development no longer suffer from the vice of
social backwardness and who are in no way handicapped and who by their high
professional qualifications occupy upper echelons in the public services and therefore,
the children of those socially advanced section of the people, termed as 'creamy layer'
should be completely removed from the lists of 'Backward Classes' and they should not
be allowed to compete with the children of socially under-privileged people and avail the
quota of reservation. By way of illustration it is said that if a member of a designated
backward class holds a high post by getting through the qualifying examinations of IAS,
IFS, IPS or any other All India Service, there can be no justification in extending the
benefit of reservation to their children, because the social status is will advanced and
they no longer suffer from the grip of poverty.
360. On the same analogy, it has been urged that the children of other professionals
such as Doctors, Engineers, Lawyers etc. etc. also should not be given the benefit of
reservation, since in such cases, they are not socially handicapped.
361. No doubt the above argument on the face of it appears to be attractive and
reasonable. But the question is whether those individuals belonging to any particular
caste, community or group which satisfies the test of backward class should be
segregated, picked up and thrown over night out of the arena of backward class. One
should not lose sight of the fact that the reservation of appointments or posts in favour
of 'any backward class of citizens' in the Central Government services have not yet
been put in practice in spite of the impugned OMs. It is after 42 years since the advent
of our Constitution, the Government is taking the first step to implement this scheme of
reservation for OBCs under Article 16(4). In fact, some of the States have not even
introduced policy of reservation in the matters of public employment in favour of OBCs.
362. In opposition, it is said that only a very minimal percentage of BCs have stepped
into All India Civil Services or any other public services by competing in the mainstream
along with the candidates of advanced classes despite the fact that their legs are
fettered by social backwardness and hence it would be very uncharitable to suddenly
deprive their children of the benefit of reservation under Article 16(4) merely on the
ground that their parents have entered into Government services especially when those
children are otherwise entitled to the preferential treatment by falling within the definition
of 'backward class'. It is further stressed that those children so long as they are wearing
the diaper of social backwardness should be given sufficient time till the Government
realises on reviews that they are completely free from the shackles of social
backwardness and have equated themselves to keep pace with the advanced classes.
There are a few decisions of this Court which I have already referred to, holding the
view that even if a few individuals in a particular caste, community or group are socially
and educationaly above the general average, neither that caste nor that community or
group can be held as not being socially backward. (Vide Balaram).
363. In the counter affidavit dated 30th October 1990 filed by the Union of India sworn
by the Additional Secretary to the Government of India in the Ministry of Welfare, the
following averments with statistical figures are given:

Based on the replies furnished by 30 Central Ministries and Departments and 31

attached and subordinate offices and public sector undertakings under the
administrative control of 14 Ministries (which may be treated as sufficiently
representative of the total picture) the Commission arrived at the following figures:-

Category of Total number Percentage Percentage Employees of employees of SC/ST

of OBCs All classes 15,71,638 18.72 12.55

(Extracted from page 92 of First Part of Mandal Commission Report)

364. The above figures clearly show that the SEBCs are inadequately represented in
the Services of the Government of India and that the SCs and STs in spite of
reservation have not yet been able to secure representation commensurate with the
percentage of reservation provided to them.
365. Meeting an almost similar argument that the 'creamy layers' are snatching away
the benefits of reservation, Chinnappa Reddy, J. observed in Vasanth Kumar to the
following effect:
One must, however, enter a caveat to the criticism that the benefits of reservation are
often snatched away by the top creamy layer of backward class or caste. That a few of
the seats and posts reserved for backward classes are snatched away by the more
fortunes among them is not to say that reservation is not necessary. This is bound to
happen in a competitive society such as ours. Are not the unreserved seats and posts
snatched away, in the same way, by the top creamy layers amongst them on the same
principle of merit on which the non reserved seats are taken away by the top layers of
society. How can it be bad if reserved seats and posts are snatched away by the
creamy layer of backward classes, if such snatching away of unreserved posts by the
top creamy layer of society itself is not bad?

366. The above observation, in my view, is an apt reply to such a criticism with which I
am in full agreement. To quote Krishna Iyer, J. "For every cause there is a martyr". I am
also reminded of an adage, "One swallow does not make the summer."
367. Reverting to the case on hand, the O.M. does not speak of any 'creamy layer test'.
It cannot be said by any stretch of imagination that the Government was not aware of
some few individuals having become both socially and educationally above the general
average and entered in the All India Services or any other Civil Services. Despite the
above fact, the Government has accepted the listed groups of SEBCs as annexed to
the Report and it has not thought it prudent to eliminate those individuals. Therefore, in
such circumstances, I have my own doubt whether the judicial supremacy can work in
the broad area of social policy or in the great vortex of ideological and philosophical
decisions directing the exclusion of any section of the people from the accepted list of
OBCs on the mere ground that they are all 'creamy layers' which expression is to be
tested with reference to various factors or make suggestions for exclusion of any
section of the people who are otherwise entitled for the benefit of reservation in the
decision of the Government so long that decision does not suffer from any constitutional
infirmity.
368. Added to the above submission, it has been urged that some pseudo communities
have smuggled into the backward classes and they should be removed from the list of
OBCs, lest those communities would be eating away the major portion of the
reservation which is meant only for the true and genuine backward classes. There
cannot be any dispute that such pseudo communities should be weeded out from the
list of backward classes but that exercise must be done only by the Government on
proper verification.
369. The identification of the backward classes by the Mandal Commission is not with a
seal of perpetual finality but on the other hand it is subjected to reviewability by the
Government. The Mandal Commission itself in paragraph 13.40 in Chapter XIII has
suggested that "the entire scheme should be reviewed after 20 years." Mr. Jethmalani
suggested that the list may be reviewed at the interval of 10 years. There are judicial
pronouncements to the effect that Government has got the right of reviewability. There
cannot be any controversy indeed there is none - that the Government which is certainly
interested in the maintenance of standards of its administration, possesses and retains
its sovereign authority to adopt general regulatory measures within the consitutional
framework by reviewing any of its schemes or policies. The interval of the period at
which the review is to be held is within the authority and discretion of the Government,
but of course subject to the constitutional parameters and well settled principles of
judicial review. Therefore, it is for the Government to review the lists at any point of time
and take a decision for the exclusion of any pseudo community or caste smuggled into
the backward class or for inclusion of any other community which in the opinion of the
Government suffers from social backwardness.
370. It may be recalled that the petitioner herself in W.P. No. 930 of 1990 has
stated,"...the Courts cannot sit as a super legislature to determine and decide the social
issue as to who are socially and educationally backward...."
371. It will be appropriate to refer to an observation of the five-Judges Bench of this
Court (which heard initially these matters) in its order dated 8th August 1991 stating:

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

372. A three-Judges Bench of this Court comprising of Ranganath Mishra, K.N. Singh,
M.H. Kania, JJ. (as the learned Chief Justices then were) has observed in their order
dated 21st September 1990 that the implementation of executive decisions is in the
hands of the Government of the day but constitutional validity of such action is a matter
for Court's examination.
373. Thereafter, a Constitution Bench of this Court by their order dated 1st October
1990 explained the earlier order stating "Three out of us sitting as a Bench on the 21st
September 1990 made an order after hearing parties wherein we had indicated that the
decision to implement three aspects of the recommendations of the Mandal
Commission was a political one and ordinarily the Court would not interfere with such a
decision."
374. Therefore, when this Court is not called upon to lay a test or give any guideline as
to who are all to be eliminated from the listed groups of the Report, there in no necessity
to lay any test much less 'creamy layer test'. I find no grey area to be clarified and
consequently hold that what one is not free to do directly cannot do it indirectly by
adopting any means. Therefore, the argument of 'creamy layer' pales into insignificance.
375. Further I hold that all SEBCs brought in the lists of the Commission which have
been accepted and approved by the Government should be given equal opportunity in
availing the benefits of the 27 per cent reservation. In other words, the entire 27% of the
vacancies in civil posts and services under the Government of India shall be reserved
and extended to all the SEBCs.
376. In fact, the first OM dated 13th August 1990 does not make any division or sub-
classification as in the amended OM. Para 2(i) of the first OM reads, "27% of the
vacancies in civil posts and services in the Government of India shall be reserved for
SEBCs." In reading para 2 (i) of the first OM in juxtaposition with para 2(i) of the
amended OM, no basic difference in the policies of the two Government is spelt out; in
that both the impugned OMs have made 27% reservation in civil posts and services
under the Government of India for SEBCs" on the basis of the recommendations of the
Second Backward Classes Commission (Mandal Report). The only difference between
the two impugned OMs is that in the amended OM a division among the SEBCs is
made as 'poorer sections' and others that the 'poorer sections' is firstly allowed to avail
the benefit of reservation of only the unfilled vacancies. Therefore, by striking down para
2(i) of the amended OM as unconstitutional, I hold that there is no legal impediment in
implementing para 2(i) of the first OM dated 13th August 1990 which has not been
supersed, rescinded or repealed but "deemed to have been amended."
377. Before parting with this aspect of the matter, I would like to express my view that
the 'poorer sections' of the SEBCs may be provided with various kinds of concessions
and facilities such as educational concessions, special coaching facilities, financial
assistance, relaxation of upper age limit, increase of number of attempts etc. for
government services with a view to give them equal opportunity to compete and keep
pace with the advanced sections of the people.
378. Whether 10% reservation in favour of 'other economically backward section' is
permissible under Article16?
379. Now I shall pass on to paragraph 2(ii) of the amended OM which reveals that 10
per cent of the vacancies in civil posts and services under the 'Government of India
shall be reserved for other economically backward sections of the people who are not
covered by any of the existing schemes of reservation.
380. This reservation of 10 per cent cannot be held to be constitutionally valid as
concluded by my learned brother B.P. Jeewan Reddy, J. for the reasons, mentioned in
paragraph 115 of his judgment. I am in full agreement with his conclusion on this issue
of 10% reservation.
381. Whether Article 16(4) contemplates reservation in the matter of promotion?
382. In Mohan Kumar Singhania v. Union of India : AIR1992SC1 , a three-Judges
Bench of this Court to which I was a party has taken a view that once candidates even
from reserved communities are allocated and appointed to a Service based on their
ranks and performance and brought under the one and same stream of category, then
they too have to be treated on par with all other selected candidates and there cannot
be any question of preferential treatment at that stage on the ground that they belong to
reserved community though they may be entitled for all other statutory benefits such as
the relaxation of age, the reservation etc. Reservation referred to in that context is
referable to the reservation at the initial stage or the entry point as could be gathered
from that judgment.
383. It may be recalled, in this connection, the view expressed by Chief Justice Ray in
Thomas that "efficiency has been kept in view and not sacrificed".
384. Hence, I share the view of my learned brother B.P. Jeevan Reddy, J. holding that
"Article 16(4) does not permit provision for reservation in the matter of promotions and
that this rule shall, however, have only prospective operation and shall not affect the
promotions already made, whether made on regular basis or on any other basis" and
the direction given by him that wherever reservations are provided in the matter of
promotion such reservation may continue in operation for a period of five years from this
day.
385. In Summation

(1) Article 16(4) of the Constitution is neither an exception nor a proviso to Article 16(1).

It is exhaustive of all the reservations that can be made in favour of backward class of
citizens. It has an over-riding effect on Article 16(1) and (2).
(2) No Reservation can be made under Article 16(4) for classes other than backward
classes. But under Article 16(1), reservation can be made for classes, not covered by
Article 16(4).
(3) The expression, 'backward class of citizens' occurring in Article 16(4) is neither
defined nor explained in the Constitution. However, the backward class or classes can
certainly be identified in Hindu society with reference to castes along with other criteria
such as traditional occupation, poverty, place of residence, lack of education etc. and in
communities where caste is not recognised by the above recognised and accepted
criteria except caste criterion.
(4) In the process of identification of backward class of citizens and under
Article 16(4) among Hindus, caste is a primary criterion or a dominant factor though it is
not the sole criterion.
(5) Any provision under Article 16(4) is not necessarily to be made by the Parliament or
Legislature. Such a provision could also be made by an Executive order.
(6) The power conferred on the State under Article 16(4) is one coupled with a duty and,
therefore, the State has to exercise that power for the benefit of all those, namely,
backward class for whom it is intended.
(7) The provision for reservation of appointments or posts in favour of any backward
class of citizens is a matter of policy of the Government, of course subject to the
constitutional parameters and well settled principle of judicial review.
(8) The expression 'poorer sections' mentioned in para 2 (i) of the amended Office
Memorandum of 1991 denotes a division among SEBCs on economic criterion.
Therefore, no division or sub-classification as 'poorer sections' and other backward
class (non poorer sections) out of the identified SEBCs can be made by application of
'means test' based on economic criterion. Such a division in the same identified and
ascertained unit consisting of SEBCs having common characteristics and attributes, the
primary characteristic or attribute being the social backwardness is violative of Clause
(4) of Article 16 of the Constitution. Hence, the division of the SEBCs as 'poorer
sections' and others, brought out in para 2(i) of the impugned amended Office
Memorandum dated 25th September 1991 is constitutionally invalid and impermissible.
Accordingly, para 2(i) of the said amended Office Memorandum is struck down.
(9) No maximum ceiling of reservation can be fixed under Article 16(4) of the
Constitution for reservation of appointments or posts in favour of any backward class of
citizens "in the Services under the State". The decisions fixing the percentage of
reservation only up to the maximum of 50% are unsustainable.
(10) As regards the reservation in the matter of promotion under Article 16(4), I am in
agreement with conclusion No. (7) made in paragraph 121 in Part VII of the judgment of
my learned brother. B.P. Jeevan Reddy, J..
(11) I also agree with conclusion No. (8) of paragraph 121 of the judgment of my
learned brother, B.P. Jeevan Reddy, J. qua the exception to the rule of reservation to
certain Services and posts.
(12) The reservation of 10% of the vacancies in civil posts and Services in favour of
other economically backward sections of the people who are not covered by any other
scheme of the reservation as mentioned in para 2(ii) of the impugned amended Officer
Memorandum dated 25th September 1991 is constitutionally invalid and it is accordingly
struck down. In this regard, I am also in agreement with conclusion No. (11) of
paragraph 121 of the judgment of my learned brother, B.P. Jeevan Reddy, J.
(13) No section of the SEBCs can be excluded on the ground of creamy layer till the
Government - Central and State - takes a decision in this regard on a review on the
recommendations of a Commission or a Committee to be appointed by the
Government.
(14) Para 2(i) and (ii) of the amended Office Memorandum dated 25th September 1991
for the reasons given in my judgment and the conclusions drawn above, are struck
down as being violative of Article 16(4).
(15) The impugned Office Memorandum dated 13th August 1990 is held valid and
enforceable. So there is no legal impediment in immediately enforcing and
implementing this first Office Memorandum of 1990.
(16) In Writ Petition No. 1094 of 1991 (Sreenarayana Dharma Paripalana Yogam v.
Union of India), there is a prayer (prayer 'b'), inter alia, for issuance of a writ of
mandamus directing the respondent to implement the impugned unamended office
memorandum dated 13th August 1990. In the light of my conclusions, striking down the
amended office memorandum dated 25th September 1991, I direct the Union of India to
immediately implement the unamended office memorandum dated 13th August 1990.
(17) The Government of India and the State Governments have to create a permanent
machinery either by way of a Commission or a Committee within a reasonable time for
examining the requests of inclusion or exclusion of any caste, community or group of
persons on the advice of such Commission or Committee, as the case may be, and also
for examining the exclusion of any pseudo community if smuggled into the list of OBCs.
The creation of such a machinery in the form of a Commission or Committee does not
stand in the way of immediate implementation of the office memorandum dated
13.8.1990 and the purpose of creating such machinery is for future guidance.
(18) I am also of the same view of my learned brother, B.P. Jeevan Reddy, J. that it is
not necessary to send the matters back to the Constitution Bench of five-Judges.

386. In the result, for the reasons mentioned in my judgment and the conclusions drawn
in the summation, the writ petition No. 1094 of 1991 is partly allowed to the extent
indicated above and all other Writ Petitions, Transferred Cases and Interlocutory
Applications are disposed of accordingly. No costs.
Dr. T.K. Thommen, J.
387. The petitioners challenge O.M. No. 36012/31/90-Estt(SCT) dated 13th August,
1990 as amended by O.M. No. 36012/31/90-Estt(SCT) dated 25th September, 1991
providing in civil posts and services under the Government of India for reservation of
27% of the vacancies for the Socially and Educationally Backward Classes (SEBCs)
and 10% of the vacancies for other economically backward sections of the people. The
Office Memorandum dated 13th August, 1990, in so far as it is material, reads:-

...
2(i) 27% of the vacancies in civil posts and services under the Government of India shall
be reserved for SEBC.
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment....
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open
competition on the same standard prescribed for the general candidates shall not be
adjusted against the reservation quota of 27%.
(iv) The SEBC would comprise in the first phase the castes and communities which are
common to both the list in the report of the Mandal Commission and the State
Government's lists. A list of such castes/communities is being issued separately.
(v)...

388. The amended Office Memorandum dated 25th September, 1991 provides:-

....
2(i) Within the 27% of the vacancies in civil posts and services under the Government of
India reserved for SEBCs, preference shall be given to candidates belonging to the
poorer sections of the SEBCs. In case sufficient number of such candidates are not
available, unfilled vacancies shall be filled by the other SEBC candidates.
(ii) 10% of the vacancies in civil posts and services under the Government of India shall
be reserved for other economically backward sections of the people who are not
covered by any of the existing schemes of reservation.
(iii) The criteria for determining the poorer sections of the SEBCs or the other
economically backward sections of the people who are not covered by any of the
existing schemes of reservations are being issued separately.
...

389. The reservation postulated in these orders for the socially and educationally
backward classes and also for the economically backward sections of the people in the
Central Government services to the extent of 27% and 10% respectively is in addition to
the reservation already made for the Scheduled Castes and the Scheduled Tribes to the
extent of 22.5%.
390. These orders are made pursuant to the Report submitted by the Backward Classes
Commission appointed by the President of India under Article 340 of the Constitution.
This Report is generally known by the name of the Chairman of the Commission, the
Late B.P. Mandal. The petitioners submit that the Report leading to the impugned
Government Orders is not based on any scientific or objective study of backwardness in
the country, and any attempt to make reservation on the basis of the data supplied in
the Report is irrational, unconstitutional and invalid. They say that the Report is
conceived in caste prejudices and motivated by caste hatred. The Report does not
address itself to a proper identification of true backwardness for the redressal of which
the Constitution permits reservation by quota for the backward classes of citizens to the
exclusion of all other persons. On the other hand, the sole criterion on the basis of
which backwardness is purportedly identified is caste and nothing but caste. Any order
resulting in reservation or other affirmative action on the basis of the wrong conclusions
drawn by the Commission is bound to be the very antithesis of equality.
391. The respondents, supporting the impugned Government orders, contend that the
Constitution guarantees liberty, equality and fraternity for all classes of people
irrespective of their religion, community, caste, occupation, residence or the like. Every
citizen is entitled to equal opportunities. For centuries, large sections of our countrymen
have been discriminated against on account of their birth. As a result of such inequity,
they have been steeped in poverty, ignorance and squalor. To alleviate their misery and
elevate them to positions of equality with the more fortunate, affluent and enlightened
sections of our countrymen, the Founding Fathers of the Constitution made special
provisions for their uplift. These provisions are meant to protect the truly backward
people of this country, namely, members of the Scheduled Castes and Scheduled
Tribes and other backward classes. They contend that the Mandal Report is a scientific
and serious study rationally addressed to the problem of backwardness by identifying it
where it is most acutely felt and loudly present, namely, amongst the lowest of the lowly
citizens of this country. Those are the members of the low castes as traditionally
recognised and identified by the State and Central Government. The various classes of
people belonging to such castes are identified as socially, educationally and
economically backward and it is in respect of those people that the Government have
made the impugned reservations.
392. The 'indicators' or 'criteria' adopted in the Mandal Report are broadly grouped as
social, educational and economic on the basis of castes/classes. The Commission has
identified classes with castes and backwardness with particular castes. Castes which
are socially, educationally and economically backward are characterised as backward
classes entitled to the benefit of reservation. Persons are grouped on the basis of caste
either because they are members of it by reason of their being Hindus or because they
were members of it in the past prior to their conversion to other religions. Identification
of backwardness is thus made with reference to the present or past caste affiliations of
the people. The Report says:-

12.4. In fact, caste being the basic unit of social organisation of Hindu Society, castes
are the only readily and clearly 'recognisable and persistent collectivities'.
12.6. ...the Commission has also applied some other tests like stigmas of low
occupation, criminality, nomadism, beggary and untouchability to identify social
backwardness. Inadequate representation in public services was taken as another
important test.

393. In regard to non-Hindus, the Report says:-