Full Judgement
K.C. Vasanth Kumar & ANR Vs. State of Karnataka [1985] INSC 134 (8 May 1985)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V. ((CJ) DESAI, D.A.
REDDY, O. CHINNAPPA (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J)
CITATION: 1985 AIR 1495 1985 SCR Supl. (1) 352 1985 SCC Supl. 714 1985 SCALE (1)832
CITATOR INFO:
RF 1988 SC 959 (14) E 1988 SC2287 (2)
ACT:
Constitution of India, 1950, Articles 15(4),16(4), 29(2), 338(3) and 340- Validity of the Means test adopted in State of Karnataka order dated 22.2.1977 as modified by the Government Order dated March 1, 1979 and June 27, 1979- Guidelines for making special provision for the advancement of any socially and educationally backward classes of citizens and provision for the reservation of appointments or posts in favour of any backward classes of citizens which in to opinion of the State, is not adequately represented in the services of the State- Conflict between "the menitoriam principle and" the "compensatory principle" of discrimination' in the matter of admissions into institutions imparting higher education and of entry into Government service, how to be solved-Statutory construction of the word "Backward classes" ejusdem qenesis Rule or Rule Noscitur a sociis, explained-Construction of Articles 338(3) and 340 of the Constitutions-Government's power to make reservations under Articles 15(4) and 16(4) and the extent of reservation that can be made, explained-Words and Phrases-Meaning of "backwardness" "backward classes", socially and educationally backward classes",
HEADNOTE:
In the pre-independent period, the former princely State of Mysore which now forms part of the State of Karnataka is one of the earliest States in the country in which the system of reservation for backward classes in public services was introduced. In 1918, the Government of His Highness the Maharaja of Mysore appointed a committee under the chairmanship Or Sir Leslie C. Miller, Chief, Justice of the Chief Court of Mysore to investigate and report on the problem of backward classes. The questions referred to that Committee were (i) changes needed in the then existing rules of recruitment to the public services;
(ii) special facilities to encourage higher and professional education among the members of backward classes and (iii) any other special measures which might be taken to increase the representation of backward communities in the public service without materially affecting the efficiency, due regard being paid also to the general good accruing to the State by a wider diffusion of education and feeling of increased status which will thereby be produced in the backward communities. The expressions 'backward classes' and 'backward communities, were used almost interchangeably and that the contained in Article 335 of the Constitution that any reservation made should not impair efficiency was anticipated more than three decades before the Constitution was enacted. The committee submitted its report in 1921 containing its opinion that all communities in the State other than Brahmins should be understood as backward communities regarding whom it made certain recommendations.
The 353 Government orders issued on the basis of the Report continued to be in force till 1956 i.e. there organisation of States which brought together five integrating A units- the former State of Mysore (including Bellary District), Coorg, four districts of Bombay, certain portions of the State of Hyderabad and the district of Sough Kanara and the Kollegal Taluk which formerly formed part of the State of Madras. There were different lists of backward communities in the five integrating units and they were allowed to continue for sometime even after the reorganisation of States.
In order to bring about uniformity the State Government issued a notification containing the list of backward classes for the purpose of Article 15(4) of the Constitution at the beginning of 1959. The validity of that notification and of another notification issued thereafter on the same topic which according to the State Government had treated all persons except Brahmins, Banias and Kayasthas as backward communities was challenged before the High Court of Mysore in Rama Krishna Singh v. State of Mysore, AIR 1950 Mysore 338. The two notifications were struck down by the High Court holding (a) in as much as the impugned notifications contained list of backward classes including 55 per cent of the population of the State and all Hindu communities other than Brahmins, Banias and Kayasthas and all other non-Hindu communities in the State except Anglo- Indians and Parsees had been treated as backward classes it resulted more in a discrimination against the few excluded communities consisting of about 5 per cent of the total population rather than making provision for socially and educationally backward classes; (b) making provision for communities which were slightly backward to the so called forward communities did not amount to making provision for the communities which really needed protection under Article (15(4) of the Constitution; (c) socially and educationally backward classes can in some cases be determined on the basis of castes.
Therefore, the State Government constituted a Committee on January 8, 1960 under the Chairmanship of Dr R. Nagan Gowda for the purpose of determining the criteria for the classification of backward classes in the State with the following tern s of reference: (i) to suggest the criteria to be adopted in determining which sections of the people in the State should be treated as socially and educationally backward and (ii) to suggest the exact manner in which the criteria thus indicated should be followed to enable the State Government to determine the persons who should secure such preference as may be determined by Government in respect of admissions to technical institutions and appointment to Government services. The said committee submitted its Interim Report on February 19, 1960. On the basis of the Interim Report of the Committee, the State Government passed an order dated June 9, 1960 regarding admissions to professional and technical institutions reserving 22 per cent of seats for backward classes, 15 per cent for Scheduled Castes and 3 per cent for Scheduled Tribes and the remaining 60 percent of seats were allowed to be filled upon the basis of merit. The order of the Government was challenged before the High Court of Mysore in S.A. Partha & Ors. v. The State of Mysore & Ors. A.J.R. 1961 Mys. 220. The High Court found that the direction contained in the Government order to the effect that if any seat or seats reserved for candidates belonging to the Scheduled Castes 354 and Scheduled Tribes remained unfilled, the same shall be filled by candidates A of other backward classes was unconstitutional. It also gave some directions regarding the manner in which the calculation of the quota of reservation be made. Thereafter the Final Report was submitted by the Nagan Gowda Committee on May 16, 1961. After taking into consideration the recommendations made in the said Report, the State Government issued an order for the purpose of Article 15 (4) of the Constitution on July 10, 1961. By that order, the State Government specified 81 classes of people as backward classes and 135 classes of people as more backward classes and reserved 30 percent of seat- professional and technical institutions for backward and more backward classes. 15 per cent and 3 per cent of the seats were reserved for Scheduled Castes and Scheduled Tribes respectively and the remaining 52 per cent of the seats were allowed to be filled up on merit. This order was challenged before the Supreme Court under Article 32 of the Constitutions in M. R. Balaji & Ors v. State of Mysore [1963] Supp. 1 SCR 439.
In this land mark decision of the Supreme Court, the meaning of the term "socially and educationally backward classes" appearing in Article 15(4) was explained as "The backwardness under Article 15(4) must be social and educational. It is not either social or educational but it is both social and educational." After explaining as to how social and educational backwardness has to be determined, and the question of determination of the classes which were educationally backward, the court held that the inclusion of the members of the Lingayat community in the list of backward classes was erroneous. On the question of extent of reservation that can be made the Court held that speaking generally and in a broad way, a special provision should be less then 50 per cent; how much less than 50 per cent should depend upon the relevant prevailing circumstances in each case." and thus allowed the petition Thereafter, the Government passed another order dated July 26, 1963 which directed that 30 per cent of the seats in professional and technical colleges and institutions should be reserved for backward classes as defined in that order and that 18 per cent of the seats should be reserved for the Scheduled Castes and Scheduled Tribes. The criteria laid down in that order for determining social and economic backwardness were two-fold-income and occupation. It stated that those who followed occupations of agriculture, petty business, inferior service, crafts or other occupations involving manual labour and whose family income was less than Rs. 1,200 per annum were to be treated as belonging to backward classes. This order was questioned before the High Court in D.G. Viswanath v. Government of Mysore & Ors.
A.l.R. 1964 Mys. 132 by some petitioners on various grounds.
The High Court dismissed the petitions observing that the determination of the backward classes without reference to caste altogether was not correct and it expressed the hope that the State would make a more appropriate classification lest its bonafides should be questioned. In the appeal filed against this judgment in R. Chitralekha & H. Anr. v State of Mysore & Ors [196416 SCR 368 the Supreme Court explained the inconsistency between the High Court judgment with the decision in Balaji's case and observed that "Two principles stand out prominently from 355 Balaji, namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness; and (ii) though it is a relevant A factor to determine the social backwardness of class of citizens, it cannot be the sole or dominant test in that behalf-casts is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of the Supreme Court which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste." While this Court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of compelling circumstances, affording a basis for the ascertainment of backwardness of a class.
Thereafter the State Government appointed the Karnataka Backward Classes Commission under the Chairmanship of Sri L.G. Havanur which after an elaborate enquiry submitted its report in four massive volumes on November 19,1975. The Commission recommended that person belonging to backward classes for purposes of Article 15(4) of the Constitution should be divided into three groups-(a) backward communities consisting of 15 castes (b) backward castes consisting of 128 castes and (c) backward tribes consisting of 62 tribes.
For purposes of Article 16(4) of the Constitution, the Commission divided the backward classes into (a) backward communities consisting of 9 castes(b) backward castes consisting of 115 castes and (c) backward tribes consisting of 61 tribes. According to the Commission, backward communities were those castes whose student average of students passing SSLC examination in 1972 per thousand of population was below the State average (which was 1.69 per thousand) but above 50 per cent of the State average and backward castes and backward tribes were those castes and tribes whose student average was below 50 per cent of the State average except in the case of Dombars and Voddars and those who were Nomadic and de-notified tribes. The total population of these backward classes (other than Scheduled Castes and Scheduled Tribes), according to the Commission, was about 45 per cent of total population of the State. The difference between the two lists-one under Article 15(4) and the other under Article 16(4) of the Constitution was due to the exclusion of certain communities, castes and tribes which were socially and educationally backward but which had adequate representation in the services from the list prepared for the purpose of Article 16(4). The Commission recommended both for purposes of Article 15(4) and Article 16(4) the percentage of reservations: (i) Backward communities 16 per cent; (ii) Backward Castes 10 per cent;
and (iii) Backward Tribes 6 per cent and total 32 per cent.
The reservation of 32 per cent along with 18 per cent reserved for Scheduled Casts and Scheduled Tribes together amounted to 50 per cent of the total seats or posts, as the case may be. The Commission further recommended if seats/posts remained unfilled in the quota allotted to backward tribes, they should be made over to backward communities and backward castes Similarly if seats/posts remain unfilled in the quota allotted to backward castes, they should be made over to backward communities and backward tribes If, however, seats/posts remain unfilled in the quota allotted to any of those three categories, they should be made over to Scheduled Castes and Scheduled Tribes. In the event of seats/posts remaining unfilled by any of these categories they should be transferred to the general pool.
356 After considering the said Report, the State Government issued an order A dated February 22,1977 whereunder it listed the Backward communities. Backward Castes and Backward Tribes who shall be treated as Backward classes for purposes of Articles 15(4) and 16(4) of the Constitution of India. The order clarified, (a) that only such citizens of these Backward Classes whose family income per annum from all sources if Rs. 8000 (Eight thou sands only) and below shall be entitled to special treatment under these Articles and (b) that five categories, namely; an actual cultivator, an artisan, a petty businessman, one holding an appointment either in Government service or corresponding services under private employment including casual labour; and any person self employed or engaged in any occupation involving manual labour" of citizens shall be considered as a special group such citizens of this special group whose family income is Rs. 4,800 (Rupees four thousand and eight hundred only) and below per annum shall be eligible for special treatment under the two Articles. The order further noted that (i) Family income means income of the citizen and his parents and if either of the parents is dead, his legal guardian;
and (b) to fix the reservation for purposes of Articles 15(4) and 16(4) of the Constitution in respect of the Backward classes and the special group of citizens at 40 per cent, the allocation being -Backward Communities (20 per cent), Backward castes (10 per cent, Backward Tribes (5 per cent), and special group (5 per cent). In the list of backward communities mentioned in the Government order, the State Government included ' Muslims' thus making a total of 16 backward communities. In the list of backward castes there were 129 castes including converts into Christianity from Scheduled Castes/Scheduled Tribes upto second generation and 62 Scheduled Tribes. The reservation for backward classes was 40 percent and taken along with 18 per cent for Scheduled Castes and Scheduled Tribes, the total reservation of seats/posts came to 58 per cent leaving only 42 per cent for merit pool.
The Government order dated February 22, 1977 and another notification dated March 4, 1977 issued for purposes of Article 16(4) had also been challenged in a number of writ petitions filed under Article 226 of the Constitution before the High Court of Karnataka in S Somashekarappa & Ors. v State of Karnataka & Ors (Writ Petition No 43;1 of 1977 and connected writ petition disposed of on April 9, 1979). Allowing the petitions; the High Court quashed (i) the inclusion of `Arasu' community in the list of 'Backward Communities' both for purposes of Article 15(4) and Article 16(4); (ii) the inclusion of the (a) Balija (b) Devadiga (c) Ganiga (d) Nayinda (e) Rajput and (f) Satani in the list of backward communities and the inclusion of (a) Banna (b) Gurkha (c) Jat (d) Konga (e) Kotari (f) Koyava (g) Malayali (h) Maniyanani or (Muniyani) (i) Padatti (j) Padiyar (k) Pandavakul (l) Raval and (m) Rawat in the list of backward classes for purposes of Article 16(4) of the Constitution;
and (iii) reservation of 20 percent made for Backward communities in the State Civil Services under Article 16(4), reserving liberty to the State Government to determine the extent of reservation in accordance with law. The classification and reservation in other respects was upheld.
Special Leave Petitions (Civil) No. 6656 of 1979 and 985411979 are filed against the said Judgment of the High Court under Article ] 36 of the Constitution.
357 After the said judgment of the High Court, by an order dated May 1, 1979, the reservation for backward communities was reduced to 18 per cent A for purposes of Article 16(4).
By an order dated June 27, 1979, the State Government modified the Government order dated February 22, 1977 by increasing the reservation for 'Special Group' from 5 per cent to 15 per cent both for purposes of Article 15(4) and Article 16(4) of the Constitution. Thus as on date, the total reservation for purposes of Article 15(4) is 68 per cent and for purposes of Article 16(4) is 66 per cent. There are only 32 per cent seats in professional and technical colleges and 34 per cent posts in Government services which can be filled up on the basis of merit. These writ petitions filed under Article 32 of the Constitution of India, seek to challenge the Constitutional validity of the State Government orders dated February 22,1977 as modified by the Government orders dated May ],1979 and June 27,1979.
Disposing of the petitions and the appeals by Special Leave, the Court expressed their following opinions, Per Chandrachud, C.J.
The following propositions on the issue of reservation may serve as a guideline to the Commission which the Government of Karnataka proposes to appoint, for examining the question of affording better employment and educational opportunities to Scheduled Castes, Scheduled Tribes and other Backward Classes which problem is a burning issue to- day.
1. The reservation in favour of scheduled castes and scheduled tribes must continue as to present, there is, without the application of a means test, for a further period not exceeding fifteen years. Another fifteen years will make it fifty years after the advent of the Constitution, a period reasonably long for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, isolation and humiliation. [376 C-D]
2. The means test, that is to say, the test of economic backwardness ought to be made applicable even to the Scheduled Castes and Scheduled Tribes after the period mentioned in (1) above. It is essential that the privileged section of the underprivileged society should not be permitted to monopolise preferential benefits for an indefinite period of time. [376E-F]
3. In so far as the Other Backward Classes are concerned, two tests should be conjunctively applied for identifying them for the purpose of reservations in employment and education: One, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State Government may lay down in the context of prevailing economic conditions. [376 F-G]
4. The policy of reservations in employment, education and legislative institutions should be reviewed every five years or so. That will at once afford an opportunity (i) to the State to rectify distortions arising out of particular facts of the reservation policy and (ii) to the people, both backward and, non- 358 backward, to ventilate their views in a public debate on the practical impact of A the policy of reservations. [376 H;
377 Al Per Desai J For a period of three and half decades, the unending search for identifying socially and educationally backward classes of citizens has defined the policy makers, the interpreters of the policy as reflected in statutes or executive administrative orders and has added a spurt in the reverse direction, namely, those who attempted to move upward (Pratilom) in the social hierarchy have put the movement in reverse gear so as to move downwards (Anulom) in order to be identified as a group or class of citizens socially and educationally backward. The Constitution promised an egalitarian society; it was a caste ridden stratified hierarchical society. Therefore, 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).[377 D-G] The language of Article 15(4) refers to 'class' and not caste. Preferential treatment which cannot be struck down as discriminatory was to be accorded a class, shown to be socially and educationally backward and not to the members of a case who may be presumed to be socially and educationally backward. [378 A B] It is clear from the decisions of the Supreme Court that same vacillation on the part of the judiciary on the question whether the caste should be the basis for recognising the backwardness. Judiciary retained its traditional blindfold on its eyes and thereby ignored perceived realities. The expression `backward classes' is not defined. Courts, therefore have more or less in the absence of well-defined criteria not based on caste label has veered round to the view that in order to be socially and educationally backward classes, the group must have the same indicia as Scheduled Castes and Scheduled Tribes. [378 E; 384 E-F] State of Madras v. Srimathi Champakam Dorairajad & Anr [1951] SCR 525; M R. Balaji & Ors v State of Mysore [1963] Supp. 1 SCR 439; T. Devadesan v The Union of India & Anr [19641 4 SCR 680; R. Chitralekha & Anr. v State of Mysore & Ors. [1964] 6 SCR 368; Triloki Nath & Anr v. State of Jammu
State of Jammu & Kashmir & Ors [1969] I SCR 103; A.
Peeriakaruppan etc. v. State of Tamil Nadu [1971] 2 SCR 430, State of Andhra Pradesh & Ors. v. U.S.V. Balram etc [19721 3 SCR 247; Janki Prasad Parimoo & Ors etc etc v State of Jammu & Kashmir & Ors. [ 1973] 3 SCR 236; State of Uttar Pradesh v Pradip Tandon & Ors [1976] 2 SCR 761; State of Kerala & Anr v N M Thomas & Ors. 11976l 1 SCR 906; Kumari K S Jayasree & Anr v The State of Kerala & Anr. [1977] 1 SCR 194; and Akhil Bhartiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association v Union of India & Ors. [1981] 2 SCR 185, referred to.
A caste is a horizontal segmental division of society spread over a district of a region or the whole State and also sometimes outside it. The 359 concept of purity and impurity conceptualises the caste system. There are four essential features of the caste system which maintained in homo hierarchicus character; (i) hierarchy (ii) commensality (iii) restrictions on marriage and (iv) hereditary occupation. Most of the caste are endogamous groups. Inter-marriage between two groups is impermissible. But `Pratilom' marriages are not wholly unknown. Similarly with the onward movement of urbanisation, members of various castes are slowly giving up, traditional occupations and the pure impure avocations is being frowned upon by developing notion of dignity of labour. As the fruits of independence were unequally distributed amongst various segments of the society, in each caste there came into existence a triple division based on economic resurgence amongst the members of the caste. Those who have become economically well off have acquired an upper class status (class consciousness) and the one on the step below is the middle class and the third one belongs to poorer section of the caste. This led to the realisation that caste culture does not help economic interest. In fact the upper crust of the same caste is verily accused of exploiting the lower strata of the same caste. Therefore, the basis of the caste system namely, purity and pollution is slowly being displaced by the economic condition of the various segments of the same caste. It is recognised on almost all hands that the important feature of the caste structure are progressively suffering erosion. The new organisation, the so-called caste organisation, is substantially different from the traditional caste structure and caste councils.
Economic differentiation amongst the members of the caste has become sharp, but not so sharp as to bury caste sentiments and ties. In the face of this transformation of the caste structure, caste label can not be accepted as the basis for determining social and educational backwardness, but the class or the social group should be examined [385 C- H; 386 A-D] Caste in rural society is more often than not mirrored in the economic power wielded by it and vice versa. Social hierarchy and economic position exhibit an undisputable mutuality. The lower the caste, the poorer its members. The poorer the members of a caste, 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 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 practitioner of other religious faiths and Hindu dissentients are some times as rigid adherents to the system of caste as the conservative Hindus. [386 E-H] Shared situation in the economic hierarchy, caste gradation, occupation, habitation, style of consumption, standard of literacy and a variety of such other factors appear to go to make towards social and educational backwardness. Thus there is a mad rush for being recognised as belonging to a caste 360 which by its nomenclature would be included in the list of socially and A educationally backward classes. Certain castes are known by a number of synonymy which vary from one region to the other and making their complete coverage almost impossible. The only way out would in such a situation is to treat, if a particular caste has been treated as backward, all its synonyms whether mentioned in the State lists or not as backward. Again, some of the castes just for the sake of being considered socially and educationally backward, have degraded themselves to such an extent that they had no hesitation in attributing different types of vices to and associating other factors indicative of backwardness, with their castes. The only remedy for such a malaise is to devise a method for determining socially and educationally backward classes without reference to caste, beneficial to all sections of people irrespective of the caste to which they belong. [387 B-H; 388 A] A few other aspects for rejecting caste as the basis for identifying social and educational backwardness are: (i) If State patronage for preferred treatment accepts caste as the only insignia for determining social and educational backwardness; the danger looms large that this approach alone would legitimise and perpetuate caste system. It does not go well with our proclaimed secular character as enshrined in the Preamble to the Constitution. The assumption that all members of some caste are equally socially and educationally backward is not well-founded.
Such an approach provides an over simplification of a complex problem of identifying the social and educational backwardness: (ii) it is recognised reservation has been usurped by the economically well-placed section in the same caste; and (iii) the caste is, as is understood in Hindu Society unknown to Muslims, Parsis, Jews etc. As such, caste criterion would not furnish a reliable yardstick to identify socially and educationally backward group in the aforesaid communities though economic backwardness would.
[388 P-G; 389 A;F] Therefore, the only criterion which can be realistically devised is the one of economic backwardness.
To this may be added some relevant criteria such as the secular character of the group, its opportunity for earning livelihood etc, but by and large economic backwardness must be the load-star. [389 F] Chronic poverty is the bane of Indian Society. Market economy and money spinning culture has transformed the general behaviour of the society towards its members. Upper caste does not enjoy the status or respect, traditional, voluntary or forced any more even in rural areas what to speak of highly westernised urban society. The bank balance, the property holding and the money power determine the social status of the individual and guarantee the opportunities to rise to the top echelon. How the wealth is acquired has lost significance. Purity of means disappeared with Mahatma Gandhi and we have reached a stage where ends determine the means. This is the present disturbing situation whether one likes it or not. [389 G-H; 390 A-B] Reservation in one or other form has been there for decades. If a survey is made with reference to families in various castes considered to be socially and educationally backward, about the benefits of preferred treatment, it would 361 unmistakably show that the benefits of reservations are snatched away by the top creamy layer of the backward castes. This has to be avoided at any cost.
[390 E] If economic criterion for compensatory discrimination or affirmative action is accepted, it would strike at the root cause of social and educational backwardness, and simultaneously take a vital step in the direction of destruction of caste structure which in turn would advance the secular character of the Nation. This approach seeks to translate into reality the twin constitutional goals: one, to strike at the perpetuation of the caste stratification of the Indian Society so as to arrest progressive movement and to take a firm step towards establishing a casteless society; and two, to progressively eliminate the disadvantageous sections of the society to raise their position and be part of the mainstream of life which means eradication of poverty. However, this does not deal with reservation in favour of Scheduled Castes and Scheduled Tribes. Thousands of years of discrimination and exploitation cannot be wiped out in one generation. But even here economic criterion is worth applying by refusing preferred treatment to those amongst them who have already benefited by it and improved their position. And finally reservation must have a time span otherwise concession tend to become vested interests. [391 E-H; 392 A] Per Chinnappa Reddy .r.
The paradox of the system of reservation that may be made under Articles 15(4),16(4) read with 29(2) of the Constitution is that it has engendered a spirit of self denigration among the people. Nowhere else in the world do castes, classes or communities queue up for the sake of gaining the backward status. Nowhere else in the world is there competition to assert backwardness and to claim 'we are more backward than you'. This is an unhappy and disquieting situation, but it is stark reality. [392 E-F]
2. The Scheduled Castes, the Scheduled Tribes and other socially and educationally backward classes, all of whom have been compendiously described as 'the weaker sections of the people', have long journeys to make unsociety. They need aid; they need facility; they need launching; they need propulsion. Their needs are their demands. The demands are matters of right and not of philanthropy. They ask for parity, and not charity. They claim their constitutional right to equality of status and of opportunity and economic and social justice. Several bridges have to be erected, so that they may cross the Rubicon. Professional education and employment under the State are thought to be two such bridges. Hence the special provision for advancement and for reservation under Articles 15(4) and 16(4) of the Constitution. [393 C-D]
3. Courts are not necessarily the most competent to identify the backward classes or to lay down guidelines for their identification except in a broad and very general way.
Courts are not equipped for that; Courts have no legal barometers to measure social backwardness and are truly removed from the people, particularly those of the backward classes, by layer upon layer of gradation and degradation.
And, India is such a vast country that conditions 362 vary from State to State, region to region, 'district to district and from one A ethnic religious, linguistic or caste group to another. A test to identify back ward classes which may appear appropriate when applied to one group of people may be wholly inappropriate and unreasonable if applied to another group of people. There can be no universal test; there can be no exclusive test; there can be no conclusive test. In fact, it may be futile to apply and rigid tests. One may to look at the generality and the totality of the situation. [398 A-C]
4. Before attempting to lay down any guideline for the purpose of determining the methods to be adopted for identifying the socially and educationally backward classes one should guard against the pitfalls of the traditional approach to the question, which has generally been superior, elitist and, therefore, ambivalent. The result is that the claim of the Scheduled Castes and Scheduled Tribes and other backward classes to equality as a matter of human and constitutional right is forgotten and their rights are submerged in what is described as the "Preferential principle" or "protective or compensatory discrimination".
Unless these superior, patronising and paternalist attitudes are got rid off. It is difficult to truly appreciate the problems involved in the claim of the Scheduled Castes, Scheduled Tribes and other backward classes for their legitimate share of the benefits arising out of their belonging to humanity and to a country whose constitution preaches justice, social, economic and political and equality of status and opportunity for all. [393 E-H]
5. There is neither statistical basis nor expert evidence to support the assumption that efficiency will necessarily be impaired if reservation exceeds 50%, if reservation is carried forward or if reservation is extended to promotional posts. The word 'efficiency' is neither sacro-sanct nor is the sanctorum has to be fiercely guarded.
'Efficiency' is not a Mantra which is whispered by the Guru in the Sishya's ear. 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. This does not mean that efficiency in civil service is unnecessary or that it is a myth. However, one need not make a fastidious fetish of it. It may be that for certain posts, only the best may be appointed and for certain courses of study only the best may be admitted. If so, rules may provide for reservation for appointment to such posts and for admission to such courses. The rules may provide for an appropriate method of selection. It may be that certain posts require a very high degree of skill or efficiency and certain courses of study require a high degree of industry and intelligence.
If so, the rules may prescribe a high minimum qualifying standard and an appropriate method of selection. Different minimum standards and different modes of selection may be prescribed for different posts and for admission to different courses of study having regard to the requirements of the posts and the courses of study. But, efficiency cannot be permitted to be used as a camouflage to let the upper classes monopolise the services, particularly the higher posts and the professional institutions. In view of Articles 15(4) and 16(4), the so called 363 controversy between the moratorium and compensatory principles is not of any significance. [395 D; G-H; 396 C-G;
397 F]
6. The three dimensions of social inequality are class, status and power. Everyone of these three dimensions are intimately and inextricably connected with economic position. Viewed from any of these three dimensions it is clear that the economic factor is at the bottom of backwardness and poverty is the culprit cause and the dominant characteristic. The economic power has firm links with the castes system, land and learning, two of the primary sources of economic power in India have been the monopoly of the superior castes. 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. Shared situation in the economic hierarchy, caste gradation, occupation, habitation, style of consumption, standard of literacy and a variety of such other factors appear to go to make towards social and educational backwardness. [398 F;
399 C-H 400 G-H]
7. " The backward classes of citizens" referred to in Article 16(4), despite the short description, and the same as 'the socially and educationally backward classes of citizens and the scheduled castes and the scheduled tribes' so fully described in Article 15(4). Again the ' special provision for advancement' is a wide expression any may include many more things besides 'mere reservation of seats in colleges It may be by way of financial assistance, free medical, educational and hostel facilities, scholarships, free transport, concessional or free housing, exemption from requirements insisted upon in the case of other classes and so on. Under Article 16(4), reservation is to be made to benefit those backward classes, who in the opinion of the Government are not adequately represented, in the services.
Reservation must, therefore, be aimed at securing adequate representation. It must follow that the extent of reservation must match the inadequacy of representation.
There is no reason why this guideline furnished by the Constitution itself should not also be adopted for the purposes of Article 15(4) too. The reservation of seats in professional colleges may conveniently be determined with reference to the inadequacy of representation in the various professions. Similarly, the extent of reservation in other colleges may be determined with reference to the inadequacy in the number of graduates, etc. Naturally, if the lost ground is to be gained, the extent of reservation may even have to be slightly higher than the percentage of population of the backward classes. [403 H; 404 A-F]
8. The ordinary rules of statutory interpretations cannot be applied to interpret constitutional instruments which are sui generis and which deal with situations of significance and consequence. The Constitution must be given a generous interpretation so as to give all its citizens, the full measure of justice promised by it. [406 D-E] There is no reason whatever to narrow the concept of equality in Article 16(1) and refuse to read into it broader concepts of social justice and equality. In fact it is necessary to read Article 16(1) so as not to come into any conflict 364 with Articles 46 and 335. A constitutional document must be read so as to synthesise its provisions and avoid disharmony. To say that equality means that unequals cannot be treated equally is merely to say what is self-evident and common place. Article implies it and it is not implied in Article 16(1) also. True, on a first glance, Article 16(4) appears to save power of the State to make provision for the reservation of appointments and posts in favour of any backward class of citizens, but a second look shows that it really recognises a pre-existing power and expresses the recognition in an emphatic way lest there should be any doubt caste upon that power. Such a device is not unknown to legislatures and constitution making bodies. Article 16(4) is more in the nature of a rule of interpretation to guide the construction of Article 16(1). The possibility of interpreting Article 16(1) so as to promote the narrower equality rather than the greater equality is excluded by Article 16(4). [425-CE]
9. The test of nearness to the conditions of existence of the Scheduled Castes would practically nullify the provision for reservation for socially and educationally Backward Classes other then Scheduled Castes and Tribes, would perpetuate the dominance of existing upper classes, and would take a substantial majority of the classes, who are between the upper classes and the Scheduled Castes and Tribes out of the category of backward classes and put them at a permanent disadvantage. Only the 'enlightened' classes of body will capture all the 'open' posts and seats and the reserved posts and seats will go to the Scheduled Castes and Tribes and those very the Scheduled Castes and Tribes. 1 he bulk of these behind the 'enlightened' classes and ahead of the near Scheduled Castes and Tribes would be left high and dry, with never a chance of improving themselves. [406 G-H;
407 A)
10. On principle, there can be a classification in to Backward Classes and More Backward Classes, if both classes are not merely a little behind but far behind the most advanced classes. In fact such a classification would be necessary to held 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, just as, if reservation was confined to the More Backward Classes and no reservation was made to the slightly more advanced Backward Classes, the most advanced Classes would walk away with all the seats available for the general category leaving none for the Backward Classes. [409 A-D]
11. As to the adoption of the test average student population in the last three High School Classes of all High Schools in the State in relation to a thousand citizens of that community as the basis for assessing relative backwardness, the adoption of a lower basis may give a false picture. After all, if one is considering the question of admission to professional colleges or of appointment to posts, the basis possibly should be the average number of students of that community who have passed the examination prescribed as the minimum qualification for admission to professional colleges, say in the last three years and perhaps the average number of persons of that community who have graduated in the last three years, since graduation is generally, the mini mum extent qualification for most posts possibly, the extent of reservation may even vary with reference to the class of post. [490 D-H] 365
12. The percentage of reservation is not a matter upon which a Court may pronounce with no materials at hand. For a Court to say that reservations should not exceed 40 per cent, 50 per cent or 60 per cent would be arbitrary and the Constitution does not permit us to be arbitrary. [410 E-F]
13. From the historical and sociological background of caste and class the philosophy, the reason and the rhetoric behind reservation and anti-reservation, the Constitutional provisions and the varying judicial stances, the following emerges; (a) clearly there exist large sections of people who are socially and educationally backward who stand midway between the forward classes such as the landed, the learned, the priestly and the trading classes on one side and the out-caste and depressed classes, i.e. the Scheduled Castes and the Scheduled Tribes on the other;(b) Poverty, Caste, occupation and habitation are the principal factors which contribute to brand a class as socially backward. The customs which they honour and observe, the rituals which they fear and practice the habits to which they adapt and conform, the festivals which they enjoy and celebrate and even the Gods that they revere and worship are enlightening elements in recognising their social gradation and backwardness; (c) Amongst very many classes and communities considered socially inferior, child marriage persists, the rule of Saptapadi is not followed; divorces are granted by a caste panchayat; (d) dress and work habit is yet another indication that economic situation and social situation often reflect each others; (e) there are many other customs, rituals or habits of significance mark out the socially backward class; (f) the weight to be attached to these factors depends upon the circumstances of the case which can only be revealed by thoughtful, penetrating investigation and analysis. It cannot be done by means of mathematical formulae but only by looking in the round or taking a look at the entire situation. Sometimes it may be possible to readily identify certain castes or social groups as a whole as socially forward or socially backward classes. Poverty, of course, is basic, being the root cause as well as the rueful result of social and educational backwardness 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.
In a country like India where 80 per cent of the people live below the breadline, even the majority of the so called socially forward classes may be poor. In the rural social ladder they are indeed high up and despite the economic backwardness of sizeable sections of them, they cannot be branded as socially backward. On the other hand, there are several castes or other social groups who have only to be named to be immediately identified as socially and economically backward classes, identified as socially backward classes. [431 F-H; 432 A-F; 433 A-E] R. Chitralekha v. State of Mysore, [1964] 6 SCR 368;
Rajendran v. State of Madras,1968] I SCR 721; State of Andhra Pradesh v. P. Sagar, [1968]3 SCR 595; Triloki Nath v.
State of Jammu & Kashmir, [1969] 1 SCR 103; A. Peeriakaruppan v. State of Tamil Nadu. 1197]] 1 8CC 38;
State of Andhra Pradesh v. Balram AIR 1972 SC 1375; State of Uttar Pradesh v. Pradeep Tandon 11975l 2 SCR 761; X.S. Jayasree v. State of Kerala [1976] 3 SCC 730; State of Kerala v. N.M. Thomas [1976] I SCR 906; Akhil Bhartiya Soshit Karamchari Sangh v Union of India & Ors. [1981] 1 SCR 185 referred to.
366 (g) 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, per haps and upper income ceiling would secure the benefit of reservation to such of these members of the class who really deserve it;
(h) In the cases of poorest sections of the forward classes, the State will have to-and it is the duty of the State to do-to discover means of assisting them means other than reservations under Article 15(4) and 16(4). [433 G-H]
14. In the ultimate analysis, attainment of economic equality is the final and the only solution to the besetting problems. There is also one danger in adopting individual property as the criterion to identify a member of the backward classes. The truly lower classes who need the certificate most to prove their poverty will find it difficult to get the certificate from the official or the legislator or any named person [434 B-C]
15. Class poverty, not individual poverty, is therefore the primary test. Other ancillary tests are the way of life, the standard of living, the place in the social hierarchy, the habits and customs, etc. etc. Despite individual exceptions, it may be possible and easy to identify social backwardness with reference to caste, with reference to residence, with reference to occupation or some other dominant feature. notwithstanding our antipathy to caste and sub-regionalism, these are facts of life which cannot be wished away. If they reflect poverty which is the primary source of social and educational backwardness, they must be recognised for what they are along with other less primary sources. There is and there can be nothing wrong in recognising poverty wherever it is reflected as an identifiable group phenomena whether you see it as a caste group, a sub regional group, an occupational group or some other class. Once the relevant factors are taken into consideration, how and where to draw the line is a question for each State to consider since the economic and social conditions differ from area to area. 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 certainly, judicial review will not stand excluded. [334 D-G] Per A.P. Sen, J.
1. Conceptually, the making of special provisions for the advancement of backward classes of citizens under Art.
15(4) and the system of reservation of appointments or posts as envisaged by Art. 16(4) as guaranteed in the Constitution, is a national commitment and a historical need to eradicate age-old social disparities in our country. But unfortunately the policy of reservation higher to formulated by the Government for the upliftment of such socially and educationally backward classes of citizens is caste-oriented while the policy should be based on economic criteria. Then alone the element of caste in making such special provisions or reservations under Arts. 15(4) and 16(4) can be removed.
[435B-D]
2. It is true that mere economic backwardness would not satisfy the rest of educational and social backwardness under Article 15(4), and is only 367 One of several tests to be adopted. The predominant and the only factor for making special provisions under Article 15(4) or for reservations of posts and appointments under Art. 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. [435 H; 436 C-D]
3. The adequacy or otherwise of representation of the backward classes in the services has to be determined with reference to the percentage of that class in the population and the total strength of the service as a whole. The representation does not have to exactly correspond to the percentage of that class in the population; it just has to be adequate. Moreover, in the case of services the extent of representation has to be considered by taking into account the number of members of that class in the service, whether they are holding reserved or unreserved posts. [436 E-F]
4. The State should give due importance and effect to the dual constitutional mandates of maintenance of efficiency and the equality of opportunity for all persons.
The nature and extent of reservations must be rational and reasonable. The state of backwardness of any class of citizens is a fact situation which needs investigation and determination by a fact finding body which has the expertise and the machinery for collecting relevant data. The Constitution has provided for the appointment of such a Commission for Backward Classes by the President under Art.
340 to make recommendations and left if to the States to make special provisions for advancement of such backward classes. It may be, and often is, difficult for the Court to draw the line in advance which the State ought not to cross, but it is never difficult for the Court to know that an invasion across the border, however ill-defined, has taken place. The Courts have neither the expertise nor the sociological knowledge to define or lay down the criteria for determining what are 'socially and educationally backward classes of citizens' within the meaning of Art.
15(4) which enables the State to make 'special provisions for the advancement' of such classes notwithstanding the command of Art. 15(2) that the State shall not discriminate against any citizens on the ground only of religion, race, caste, descent, place of birth, residence or any of them.
The Supreme Court is ill-equipped to perform the task of determining whether a class of citizens is socially and educationally backward, but, however a duty to interpret the Constitution and to see what it means and intends when it makes provision for the advancement of socially and educationally backward classes. In considering this situation then, Courts must never forget that it is the Constitution they are expounding. Except for this, the Court has very little or no function.
[436 G-H; 437 A-D]
5. The Preamble to our Constitution shows the nation's resolve to secure to all its citizens: Justice-Social, economic and political. The State's objective of bringing about and maintaining social justice must be achieved reasonably having regard to the interests of all. Irrational and unreasonable moves by the State will slowly but surely tear apart the fabric of society. It is primarily the 368 duty and function of the state to inject moderation into the decisions taken under Arts. 15(4) and 16(4), because justice lives in the hearts of men and a growing sense of injustice and reverse discrimination, fueled by unwise State action, will destroy, not advance, social justice. If the State contravenes the constitutional mandates of Art. 16(1) and Art. 335, the Supreme Court will of course, have to perform its duty. [437 F-G] 6. The extent of reservation under Art. 15(4) and Art.
16(4) must necessarily vary from State to State and from region to region within a State, depending upon the conditions prevailing in a particular State or region, of the Backward Classes. Since the problems pertaining in reservation can never be resolved through litigation in the Courts, the Central Government should consider the feasibility of appointing a permanent National Commission for Backward Classes which must constantly carry out sociological and economic study from State to State and from region to region within a State. The framers of the Constitution by enacting Art. 340 clearly envisaged the setting up of such a high-powered National Commission for Backward Classes at the Centre. [437 H; 438 A-B]
7. The doctrine of protective discrimination embodied in Arts. 15(4) and 16(4) and the mandate of Art. 29(2) cannot be stretched beyond a particular limit. The State exists to serve its people. There are some services where expertise and skill are of the essence. Medical services directly affect and deal with the health and life of the populace. Professional expertise, born of knowledge and experience, of a high degree of technical knowledge and operational skill is required of pilots and aviation engineers. The lives of citizens depend on such persons.
There are other similar fields of governmental activity where professional, technological, scientific or other special skill is called for. In such services or posts under the Union or States, there can be no room for reservation of posts; merit alone must be the sole and decisive consideration for appointments. [438 C-E] Per Venkataramiah, J.
1. Equality of opportunity revolves around two dominant principles- (i) the traditional value of equality of opportunity; and (ii) the newly appreciated-not newly conceived-idea of equality of results. The Society which cherishes the ideal of equality has to define the meaning and consent of the concept of equality and the choices open to it to bring about an egalitarian society would always be political. But the Courts have been forced to scrutinise a variety of choices, while society for which they have to answer has been issuing a proliferation of demands. Many inequalities in the past seemed almost to have been part of the order of nature. The Courts, however deal with the problems that society presents. `Levels of awareness and corresponding senses of grievance have arisen at different times for particular historical reasons often tending to differentiate among the categories of equality rather than unifying them. Inequalities of class, race, religion and sex have presented themselves at different periods as primary grievances'. The Courts must remind themselves that for those who are suffering from deprivation of inalienable rights, gradualism can never be a sufficient remedy. Ours is a 'struggle for status, a struggle 369 to take democracy off parchment and give it life.' 'Social injustice always balances its books with red ink'. Neither the caprice of personal taste nor the protection of vested interests can stand as reasons for restricting opportunities of any appropriately qualified person. These are the considerations which sometimes may be conflicting that should weigh with the courts while dealing with cases arising out of the doctrine of equality. It should, however, be remembered that the courts by themselves are not in a position to bring the concept of equality into fruitful action. They should be supported by the will of the people of the Government and of the legislators. These should be an emergence of united action on the part of all segments of human society. This is not all. Mere will to bring about equality under the existing economic level might worsen the situation. There should be at the same time a united action to increase the national resources so that the operation of equality will be less burdensome and every member of the society is carried to a higher social and economic level leaving nobody below a minimum which guarantees all the basic human needs to every member of the society. If there is no united action the pronouncements by courts would become empty words as many of the high principles adumberated in the chapter on the Directive Principles of State Policy in the Constitution have turned out to be owing to several factors. [440 B-H; 441 A]
2. The need for social action is necessitated by the environmental factors and living conditions of the individuals concerned. The application of the principle of individual merit, unmitigated by other considerations may quite often lead to inhuman results 1441 G]
3. An examination of the question of the background of the Indian Social conditions-caste ridden atmosphere 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. This is so because a caste is based on various factors, sometimes it may be a class, a race or a racial unit and the caste of a person is governed by his birth in. the family. [459 E; 457 F] It is significant that the expression "backward classes" used in Part XVI of the Constitution and in particular in Article 338(3) is used along with the Scheduled Castes, the Scheduled Tribes and the Anglo-Indian Community. The meaning of "backward classes" has, therefore, to be deduced along with the other words preceding it. [462 G] It is a rule of statutory construction that where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified. It is true that this rule which is called as the ejusdem generise rule or the rule noscitur a sociis cannot be carried too far. But it is reasonable to apply that rule where the specific words refer to a distinct genus or category. [462 H; 463 A] Part XVI of the Constitution deals with certain concessions extended to certain castes, tribes and races which are Scheduled Castes and Scheduled Tribes and to the Anglo-Indian community. In the context if Article 338(3) and 370 Article 340 are construed, the expression 'backward classes' can only refer to A certain castes, races tribes or communities or parts thereof other than Scheduled Castes, Scheduled Tribes and the Anglo-Indian community, which are backward. Clause (6) of the resolution regarding the aims and objects of the Constitution moved by Pandit Jawaharlal Nehru on December 13, 1946 and the history of the enactment of Part XVI of the Constitution by the Constituent Assembly lead to the conclusion that backward classes are only those castes, races, tribes or communities, which are identified by birth, which are backward. It is, therefore,difficult to hold that persons or groups of persons who are backward merely on account of poverty which is traceable to economic reasons can also be considered as backward classes for purposes of Article 16(4) and Part XVI of the Constitution.
[463 C-D; 466 G-H] The Drafting Committee by qualifying the expression "class of citizens" by "backward" in Article 16(4) of the Constitution tried to reconcile three different points of view and produced a workable proposition which was acceptable to all, the three points of view being (i) that there should be equality of opportunity for all citizens and that every individual qualified for a particular post should be free to apply for that post to sit for examinations and to have his qualifications tested so as to determine whether he was fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of the principle of equality of opportunity; (ii) that if the principle of equality of opportunity was to be operative there ought to be no reservations of any sort for any class or community all and that all citizens if they qualified should be placed on the same footing of equality as far as public services were concerned; and (iii) that though the principle of equality of opportunity was theoretically good there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. The whole tenor of discussion in the Constituent Assembly pointed to making reservation for a minor
