INDRA SA\VHNEY AND ORS. ETC. ETC. v. UNION OF INDIA AND ORS. ETC. ETC.

A

NOVEMBER 16, 1992

B (M.H. KANIA, 0., M.N. VENKATACHALIAH, S. RATNAVEL PAJ'!DIAN, DR. T.K. THOMMEN, AM. AHMADI, KULDIP SINGH, P.B. SAWANT, R.M. SAHAI AND B.P. JEEVAN REDDY, JJ.)

Constitution of India, 1950: c Article 16(4}-'Provision'-Whether to be made by the Parlia- ment/Legislature-Making such a provision by executive orde,-.Legality of. Constitution of India, 1950: Article 16(1)(4}-Whether Article 16(4), an exception to Article 16(1), D whether clause(4) exhaustive of special provisions to be made in favour of ... 'backward class of citizens' or in favour of all sections, classes or groups-- Whether reservations to be made under clause (1) or whether it only permitted extending concession. Constitution of India, 1950: E Art.icle 16(4)-11 Class 11 , "Backward ·class of citizens 11, "Communities'~ 11 Castes'~ class of citizens"-iVot adequately represented in the senJices under 11 the State--Reasons for not using the word tlcaste" or 1Castes 11 -Constrnc- tion--Backward class of citizen-ldentijication-Procedure-'Means test' whether to be applied-''Creamy layer'4ffect of-Backwardness whether to F be social and economical-Whether a class to be situated similarly to the Scheduled Caste/Tribe for being qualified as a Backward Class. Constitution of India, 1950: Articles 15, 16-:Backward c/asses-ldentification--Criteria. G Constitution of India, 1950: Articles 15, 16-:Backward classes-Classification into backward and more backward-Legality of. Constitution of India, 1950: H Articles 15, 16-Reservation-50% rule in Balaji-£ffect of-50% rule 454

INDRA SAWHNEY v. U.0.l. 455 whether includes all types of reservations under Article 16 or those reserva- A tions made under Article 16(4 j-f'rocedure to apply 50% rnle-Devadasan whether good law. Constitution of India, 1950:

Article 16(4}-f'rovision for reservation in promotiun matters-Legality B of

Constitution of India, 1950:

Articles 14, 15, 16, 38(2), 46, 333-Reservation whether anti-meritan- Constrnction of Article 16 in the relevancy of Articles 333, 38(2), 46.

Constitution of India, 1950: c Articles 14, 15, 16, 226, 3"}-[dentification of backward classes and fu:ation of percentage of reservations-Judicial review-Scope of

Constitution of India, 1950:

Articles 14, 15, 16-'Poorer sections' of backward classes and others-Distinction made in the Memorandum dated 25.9.1991-Validity of Constitution of India, 1950:

Articles 14, 15, 16, 341>--Memorandum dated 25.9.1991-l?.eservation of 10% of the posts in favour of "other economically backward sections" of the·people, not covered under the existing schemes of reservation-Validity of--Lists of State Governments identifying SEBCs!OBC,--EffecrWhether appointing Commission to identify OBCs necessary.

Comparative Law-{f.S. Constitution Fourteenth Amendment-Section 1 and Title VI of the Civil Rights Act, 1964, read with Articles 14, 15, 16, F Constitution of India, 1951>-Reservation of seats or vacancies or appoint- 111ents or posts-Reasonable reservation in America-ldeas still in the process of evolution.

The Central Government appointed a Backward Class Commission (popularly known as Kaka Kalekar Commission) under Article 340 of the G Constitution on January 29, 1953. The 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." H

p. 456 Copy page pinpoint

A The Commission submitted its report on March 30, 1955. According lo the Commission, the criteria for identifying the backward classes, under Article 15(4) would be their traditional occupation and.profession, the percentage of literacy or the gener!ll education advancement made by them; the estimated population of the community; the distribution of the various communities throughout the State or the concentration in certain B areas and the s.ocial position which a cc;>mmunity occupied in the caste hierarchy. It also stated that the causes of educational backwardness amongst the educationally and backward communities were (i) traditional apathy for education on account of social and ~nvironmental conditions or occupational handicaps; (ii) poverty and lack of educational institu- C tions in rural areas and (iii) living in inaccessible areas.

In the enclosing letter addressed to the President, the Chairman of the Commission stated that effecting reservations and other remedies on the basis of caste would not be in the interest of society and country; that if the principle of caste is eschewed altogether, to make it would be .D possible to help the ·extremely poor and deserving members of all the communities and that preference ought, to be given to those who come from traditionally neglected social classes.

The Central Government did not take any action on the report.

E On August 14, 1961, the Central Government wrote to the State Gove:-nments to choose their own criteria for defining backwardness.

Various State Governments thereupon app3inted Co!Dmissions for identifying backward classes. Later they issued orders identifying the Socially and Educationally Backward Classes and reserving certain per- F centage of posts in their favour. In Centra.¹ services, reservations were made in favour of Scheduled Castes and Scheduled Tribes but not in favour of other backwards classes.

On January 1, 1979 the Second Backward Classes Commission G und~r the Chairmanship of Sh. B.P. Manda!, popularly known as Manda! Commission, was appointed under Article 340 of the Constitution of India, to investigate the conditions of Socially and Educationally backward Classes· (SEBCs) within the territority. of India and to determine the ~ criterfu for defining the SEBCs.

H The report was submitted on December 31, 1980. The Commission evolved 11 Indicators or criteria for determining social and educational A backwardness, grouping them under three broad heads, i.e., Social, Educational and Economic. The Social indicators were given a weightage of 3 points each; the Educational Indicators 2 points each and the ,_ Economic Indicators l point each.

p. 457 Copy page pinpoint

The Commission according to its report, adopted a multiple ap- B proach for preparing the lists of OBCs for all the States and Union Territories. The main sources examined for preparing these lists were: (i) soci~-eduq1tional field survey (ii) sensus reports of 1961 (iii) personal knowledge gained through its extensive tour of the country and (iv) lists of OBCs notified by the various State Govts. It applied difficult tests for identifying OBCs among Hindus and non-Hindus. It recommended 27% c reservation in favour of"OBCs.

The Manda! Commission Report was laid before each House of ·parliament. It was discussed in 1982 and again in 1983 in the Parliament. D· Vide Office Memorandum dated 13th August, 1990, the Government of India considering the .recommendations of the Mandal Commission, extended and provided for certain benefits in the services of the Union and their Public Sectors Undertakings, in favour of the socially and education- ally backward classes. The Office Memorandum provided (i) tliat 27% of the vacancies in civil posts and services under the Government of India to be reserved for SEBCs., (ii) that the aforesaid reservation was to apply to vacancies to be filled by direct recruitment; (iii) that candidates belong- ing to SEBCs recruited· on the basis of merit in open competition on the same standards prescribed for the general candidates not to be adjusted against the reservation quota of 27%; (iv) that the SEBCs would comprise the castes and communities common to the lists prepared by the Commis- sion and L'ie State Governments; and (v) that the reservation to be effected from 7.8.1970 prospectively.

. The issuance of the Memorandum dated 13th August 1990 caused wide-spread protest. Law and order was disturbed and private and public properties damaged. Some young people lost their lives by self-immolation.

Writ petitions were filed in this Court challenging the Memorandum dated 13th August 1?90 along with applicatfons for staying the operation of the Memorandum; This Court allowed the applications for stay. H

p. 458 Copy page pinpoint

A Following the general election held in the first half of 1991, the Government at the Centre changed. The new Government issued another Office Memorandum dated 25th September 1991 modifying the Memoran- dum dated 13th Augnst 1990. _, The Memorandum dated 25th September 1991 was issued 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 Memorandum provided (i) that within the 27% of the vacancies in civil posts and services under the Government oflndia reserved for SEBCs, preference to be given to candidates belonging to the poorer sections of the SEBCs and in case sufficient number of such candidates were not available, the vacancies to be filled up by the other SEBC candidates; and (ii) that 10% of the vacancies in civil posts and services under the Govern- ment oflndia to be reserved for other economically backward sections of the people, not covered by any of the existing schemes of reservation. D Though it is stated in the Memorandum, that the criteria for deter- mining the poorer sections of the SEBCs or the other economically back- ward sections of the people not covered by any of the existing schemes of reservation will be issued separately, till the date of the judgment by this Court, the Ceutral Government did not evolve the economic criteria. E The Writ Petitions were beard originally by a Constitution Bench presided by the then Chief Justice of India. The Constitution Bench referred the petitions to a Special Bench of Nine Judges to finally settle the legal position relating to reservations in an authoritative way.

F The petitioner in W.P.No. 948 of 1990 contended that caste was a prohibited ground of distinction under the Constitution and it co•tld not be the basis for determining backward classes referred to in Article 15 (4); that the Mandal CommJssion treated the expreSBion "backward classes" as synonymous with backward castes and identified backward classes ignor· G ing other considerations like poverty; that if half of the posts were 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; that merit would disappear by deifying backwardness; that Article 16(4) was broader than Article 15(4); that the .xpression "backward class" in Article 16(4) was not limited to H "socially and educationally backward classes" in Article 15(4).

INDRA SAWHNEY v. U.0.¹. 459

The petitioner in writ petition No. 930 of 1990 submitted that the A 'provision' contemplated by clause (4) of Article 16 could be made by the Legislature alone and not by the executive or any other authority; thatBalaji was not correctly decided; that since the provision made under Article 16(4) affected the fundamental rights of other citizens, such a provision could be made only by the Parliament/Legislature; that if the power of making the "provision" was given to the Executive, it would give room for any amount of B abuse; that backwardness under Article 16(4) should be determined on the basis of social, educational and economic backwardness; that the authority appointed to identify backward classes was first to settle the criteria or the indicators for determining backward classes and then to apply the criteria to each and every group in the country and it was not permissible to start with castes to determine whether a caste was a backward class; that since castes c did not exist among Muslims, Christians, and Sikhs, caste could never be the basis ofindentification.

The petitioner in W.P. No. 972 of 1990 urged that survey to identify backward classes should be from individual to individual and not to be caste..wise.

The petitioner (W.P.No. 1061 of 1990) submitted that the only basis for identifying backward classes would be occupation~um-means; that a secular socialist society could 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.

The petitioners submitted that some members of the designated backward classes were highly advanced socially as well as economically and educationally; that they constituted the forward section of that par- F ticular backward class and that they were lapping up all the benefits of reservations meant for that class, Without allowing the benefits to reach the truly backward members of that class and with them a class could not be treated as backward; that the resenation of appointments or posts contemplated by Article 16(4) was only at the stage of entry i~to State G senice, i.e., direct recruitment; that providing for reservation thereafter in the matter of promotion amounts to a double reservation; that if such a provision was made at each successive stage of promotion i! would be a case of res~nation being provided that many times; that by providing reservation in the matter of promotion, the members of a- re~erved category would generate acute heart·burning and cause inefficiency in H

p. 460 Copy page pinpoint

A administration; that the caste-based approach adopted by the Commis- sion divided the nation into a forward section and a backward section; that the Commission was ~ctuated by malice towards upper castes !ind its report was unbalanced, unjust and unconstitutional.

The respondent-Union of India urged that the reservation provided for by Article 15(4) was not in favour of backward citizens, but in favour of backward class of citizens; that what was to be identified was backward class of citizens and not citizens who could be classified as backward; that groups based on religion, race, caste, place of birth etc. could form a class of citizens and if that class was backward there could be a reservation in favour of that class of citizens; that caste was relevant consideration to determine backward class; that Article 16(2) prohibited discrimination only on any or all of the grounds mentioned therein; that if reservation was made in favour of backward class or citizens, the bar contained in Article 16(2) was not attracted, even if the backward classes were iden- tified with reference to castes, as the backward classes were not adequately represented in the services of the State; whether a backward class was represented adequately in the service under the state is a question of fact and was within the domain of the executive decision; that adequacy in . representation did not mean representation at the lowest level alone, but at all levels in the administration; that plain words of the Constitution should be given their due meaning and that there was no warrant for cutting down their ambit on the basis of certain suppositions with respect to interpretation of clauses (I), (2) and (4) of Article 16.

The State of Bihar contended that backward castes in Article 16(4) meant only the members of Shudra caste and the out-Castes (Panchamas) F referred to as Scheduled Castes; that the expression "backward classes" did not refer to any current characteristic· of a backward caste save and except paucity or inadequacies of representation in the apparatus of the Government; that poverty was not a necessary criterion of backwardness; that it was for the State to determine who were the backward classes and H was not a matter for the Court; that the decision of the Government was not judicially reviewal as it was extremely limited • to the only question: whether the exercise of power was a fraud on the Constitution.

Respondent·Srinarayana Dharma Paripalana Yogam submitted that Articles 16(4) and 15(4) occupy different fields and serve different purposes; that while Article 15(4) contemplated positive action program~

INDRA SAWHNEY v. U.0.¹. 461 mes. Article 16(4) enabled the State to undertake schemes of positive discrimination; that the social and educational backwardness which was the basis of identifying backwardness under Article 15(4) was only partly true in the case of 'backward class of citizens' in Article 16(4); that the expression "any backward class of citizens" in Article (16(4) has to be understood in the light of the purpose of the said clause; that the Scheduled Castes!fribes were to be beneficiaries of Article 16(4), there was no reason why caste not to be an exclusive criteria for determining beneficiaries under Article 16(4); that Article 16(4) contemplated with group protection and not individual protection.

The Communist Party of India, an Intervenor contended that caste plus poverty plus location plus residence to be the basis of identification c and not mere caste; that a national concensus was essential to introduce reservations for 'other backward classes' under Article 16(4).

The State of Tamil Nadu contended that the backward classes to be identified only on the basis of caste and no economic criteria be adopted D for the purpose; that economic criteria may be employed as one of the indicators for identific~tion of backward classes; that once a backward class was identified, there was no question of excluding any one from that class on the basis of income or means or on any other economic criterion.

The State of Kerala submitted that caste furnished a perfectly scien- E tific basis for identification of backward classes.

Respondent-All India Federation of Backward Classes, Scheduled Castes, Scheduled Tribes and Religious Minorities submitted that caste to be the sole criteria for determining backwardness; that the Shudras and Panchamas to be given a share in the governance of the country to assure their dignity and to instill in them a sense of confidence and a spirit of competition.

The Respondents urged that once a class was identified as a back- ward class after applying the relevant criteria Including the economic one, it was not permissible to app.Iy the economic criteria once again and sub-divide a backward class into two sub-categories; that the argument of 'Creamy layer' was but a mere ruse, a trick to deprive the backward classes .of the benefit of reservations.

On the questions:- H

p. 462 Copy page pinpoint

A "l (a) Whether the 'provision' contemplated by Article 16(4) must necessarily be made by the legislative wing of the State?

(b) Ir 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? B 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 c 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/conces- D sions?

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? G (b) Whether a criteria like occupation-cum-income without refer- ence to caste altogether, can be evolved for identifying the back- ward classes?

5. Whether the backward classes can be further categorised into H backward and more backward categories?

INDRA SAWHNEY v. U.0.¹. 463

6. To what extent can the reservation be made? (a) Whether the A 50% rule enunciated in Ba/aji 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 cau be provided under Articles 16? B

(c) Further while applying 50% rule, ifany, whether an year should be taken as a unit or whether the total strength of the cadre should be looked to?

(d) Whether Devedasan was correctly decided? c

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

8. Whether reservations are anti·meritian? To what extent are D Articles 335, 38(2) and 46 of the Constltntion 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 E identification or a demonstrably unreasonable percentage?

10. Whether the distinction made in the second Memorandum between poorer sections of the backward classes and others per· missible under Article 16? F

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.". G Disposing of the Writ Petitions and Transferred Cases, This Court,

(Constituting M.H. Kania, CJ., M.N. Venkatachaliah, S. Ratnavel Pandian, Dr. T.K. Thommen, A.M. Ahmadi, Kuldlp Singh, P.B. Sawant, R.M. Sahai and B.P. Jeevan Reddy, JJ • Majority View: H

p. 464 Copy page pinpoint

A Per B.P. Jeevan Reddy, J. on his behalf and or behalf of M.H. Kania, CJ., M.N. Venkatachaliah, A.M. Ahmadi, JJ. Per. S. Rat- navel Pandian and P.B. Sawant, JJ partly concuning, Dr. T.K. Thommen, Kuldip Singh and R.M. Sahai, JJ. (Dissenting).

.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. [692-H; 693-A] ) c \. Per S. Ratnavel Pandian, J. (Concuning) I 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. [778-B] D Per br. T.K. Tbo~men,J. (Concuning)

It is open to the State to adopt any valid affirmative action programme, otherwise than by reservation, for amelioration of the disabilities of all disadvantaged persons, including backward classes of citizens. (820-B] E Per Kuldip Singh, J. ( Concuning)

The Brother Judges have held that the reservations can be provided by the Parliament, State Legislatures, statutory mies as well as by way of Executive Instructions issued by the Central Government and the State F Governments from time to time. (853-G]

The Executive Instructions can be issued only when there are no statutory provisions on the subject. Executive Instructions can also be issued to supplement the statutory provisions when those provisions are silent on the subject of reservations. These propositions of law are unex- ceptionable. (853-H)

Any Executive Instruction [issued under Articles 16(4), 73 or 162) providing reservations, which goes contrary to statutory provisions or the mies under Article 309 or any other statutory rules, shall not be operative to the extent it is contrary to the statutory provisions/mies. (854-A) fNDRA SAWHNEY v. U.O.I. 465

Per P.B. Sawant, J. (Concurring) A The provision for reservation in the services under Article 16(4) can be made by an executive order. (938-D]

Per Majority view. B 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 clas- ses can be provided under clause (1) of Article 16. (696-F, GI c Per S. Ratnavel Pandian, J. (Concurring)

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 cl3ss of citizens. It has an overriding effect on Article 16(1) and (2). (777-E] D 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). (777-F]

Per Dr. T.K. Thommen, J. (Partly dissenting) E

It is open to the State to adopt valid classification and make special provisions for the protection of classes of citizens whose comparative back- wardness the State has a mandate to redress by affirmative action program· mes. Any such programme must be strictly tailored to the constitutional requirement that no citizen shall be excluded from being considered on the F basis of merits for any public employment except to the exteni that a valid reservation has been made in favour of backward classes of citizens. (815-F]

The Constitution prohibits discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Any G discrimination solely on any one or more of these prohibited grounds will result in invidious reverse discrimination which is imperimissible. None of these grounds is the sole or the dominant or the indispensable criterion to identify backwardness which qualifies for reservation. But each of them is, in ~onjunction with factors such as poverty, illiteracy, demeaning occupation, malnutrition, physical and intellectual deformity and like disadvantages, a H

p. 466 Copy page pinpoint

A relevant criterion to identify socially and educationally backward classes of citizens for whom reservation.is intended. [815-G-H; 816-A]

Reservaiim contemplated under Article 16 is meant exclusively for backward classes of citizens who are not adequately represented in the services under the State. [816-B] B Only such classes of citizens who are socially and educationally backward are qualified to be identified as backward classes for the pur- pose of reservation under Article 15 or Article 16, their backwardness must have been either recognised by means of a notification by the Presi- C dent under Article 341 or Article 342 declaring th~ to be. Scheduled . ' Castes or Scheduled Tribes, or, on an objective consideration, identified by the State to be socially and educationally so backward by reason of identified prior disc.riminalion and its continuing ill-effects as to be com· parable to the Scheduled Castes or the Scheduled Tribes. In the case of the Scheduled Castes or the Scheduled tribes, these conditions are, in D view of the notifications, presumed to be satisfied. [816-B-D]

In the case of the other backward classes of citizens qualified for reservation, the burden is on the State to show that these .classes have been subjected to such discrimination in the past that they are reduced to E a state of helplessness, poverty and the consequential social and educa- tional backwardness as in the case of the Scheduled Castes and the Scheduled Tribes. [816-D, El

Reservation is meant exclusively for the Harijans, the Girijans, the Adivasis, the Dalits or other like "depressed" classes or races or tribes most unfortunately referred to in the past as the "untouchables" or the "outcastes" by reason of their being born in what was wrongly regarded as low castes and associated with what was equally wrongly treated as demeaning occupations, or any other class of citizens amicted by like degree of poverty and degrada· lion caused by prior and continuing discrimination and exploitation, whatever be their professed faith, "religion" or caste. These classes of citizens, segregated in slums and ghettos and affiicted by grinding poverty,· disease, ignorance, ill-health and backwardness, and hunted by fear and anxiety, are the constitutionally intended beneficiaries of reservation, not because of their castes or occupations, Which are merely Incidental facts of history, but because of their backwardness and disabilities stemming from identilied past or continuing inequities and discrimination. [816-E-G]

INDRA SAWHNEYv. U.0.¹. 467

Members of the Scheduled Castes or the Scheduled Tribes do not lose the benefits of reservation and other affirmative action programmes intended for backward classes merely by reason of their conversion from the Hindu or the Sikh or the Buddhist religion to any other religion, and all such persons shall continue to be accorded all such benefits until such time as they cease to he backward. (816-H; 817-A] B Identification of backward classes for the purpose of reservation with reference to historical discrimination and its continuing ill effects is, however, subject to the overriding condition that no person whose means exceeded a predetermined economic level should be entitled to the protec- tion of reservation, however, backward he may he socially and education- C ally. He may, however be considered for the benefits of other affirmative action programmes, but in doing so his comparative affiuence in relation to other backward class candidates may be a relevant c~nsideration to exclude him. (817-B, CJ

Per Kuldip Singh, J. (Conculring with R.M. Sahai, !.) D Article 16(1) and Article 16(4) operate in the same field. (849-G]

Article 16(4) is exhaustive of the State-power to provide reservations in State services. (849-G] E Protective discrimination, short of reservations, which satisfy the tests of reasonableness, is permitted under Article 16(1). No reservation of any kind can be made for any class or category whether backward or non-backw3rd under Article 16(1). (849-H; 850-E]

Per P.B. Sawant, J. (Conculring with Majority View) F

Clause (4) of Article 16 is not an exception to clau~e (1) thereof. It only carves out a section of the society, viz., the backward class of citizens for whom the reservations in services may be kept. The said clause is exhaustive of the reservations of posts in the senices so far as the backward class of citizens is concerned. It is not exhaustive of all the reservations in the services that may be kept. The reservations of posts In the services for the other sections of the society can be kept under clause (1) of that Article. (936-F]

Per. R.M. Sabal, J. (Dissenting) H

468 SUPREME COURT REPORTS I1992] SUPP. 2 S.C.R.

A Article 16(4) being part of the scheme of equality doctrine it is exhaustive of reservation, therefore no reservation can be made under · Article 16(1).

Constitutional law bar under Article 16(2) against State for not discriminating on race, religion or caste is as much applicable to Article B 16(4) as to Article 16(1) as they are part of the same scheme and serve s~me constitutional purpose of ensuring equality. [1005-E]

Reservation being extreme form of protective measure or affirmative action it should be confined to minority of seats. [1006-C] c Per Majority View:-

The expression 'backward class' in Article 16(4) takes in Other Back· ward Classes', S.Cs., S.Ts. and ma;- be some other backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backward- D ness leads to educational backwardness and economic bacI<.wardness. 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 sectlons referred to in Article 46 do include S.E.³.Cs. referred to in Article E 340 and covered by Article 16(4). [696-H; 697-A]

Even under Article 16(1), reservations cannot !>e made on the basis of economic criterion alone. [697-B]

Per S. Ratnavel Pandian, J. (Concurring) F 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 occupa- G lion, poverty, place of residence, lack of education, etc. and in ccm- munities where caste is not recognised by the above recognised and accepted criteria except caste criterion. [777-G]

In the process of identification of backward class of citizens under Article 16(4) among Hindus, caste is a primary criterion or a dominant factor though lt~is not the sole criterion. [777-H; 778-A)

INDRA SAWHNEY v. U.0.¹. 469

Per Dr. T.K. Thommen, J. (Dissenting) A The validity of the impugned Govt. orders providing for reservation of posts depends on co!'vincing proof of proper identification of backward classes of citizens by recourse to relevant criteria, such as poverty, il- literacy, disease, unhygienic living condi~ions, low caste and consequential isolation, and in accordance with correct principles, i.e. with reference to B the continuing ill effects of historical discrimination resulting in social and educational backwardness comparable to that of the Scheduled Cas- tes or the Scheduled Tribes, and inadequate representation of snch classes of citizens in the services under the State, bot subject to the overriding condition that all those persons whose means have exceeded a predeter- mined economic level shall be denied reservation. Amoniist the aforemen- c . tioned backward classes of citizens correctly identified to be qualified for reservation, preference may be ligitimately extended to the comparatively poorer or more disadvantaged sections. [819-A-F]

Reservation Of seats or posts solely on the basis of economic back- D wardness, i.e. without regard to evidence of historial discrimination finds no justification in the Constitution. [819-GJ

Once a class of citizence is identified on correct principles as back- ward for the purpose of reservation, the "m~ns test" must be strictly and uniformly applied to exclude all those persons in that class reaching above the predetermined economic level. [817-D]

Per Kuldip Singh, J. (Concuning with R.M. Sahai, !.)

The expression 'backward class of citizens" under Article 16(4) does not mean the same thing as the expression "any socially and educationally backward classes of citizens" in Article 15(4). [837-A]

A class which is adequately represented in the State-services cannot be considered a backward class. A class may not be backward even if it has inadequate representation in the State-services, but once it secures adequate representation in the State-services it no longer remains back- ward. It is not possible to read the expression "not adequately repre- sented" in Article 16(4) in relation to "any backward class." [841-D, E]

Under the Constitution the "backward class" which bas been iden- tified for preferential treatment is the "socially and educationally back- H

470 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A ward class". Article 16(4) does not provide job-reservations for the back- ward classes. That is why the expression "socially and educationally back- ward" has not been used therein. The classes of citizens to be identified under Article 16(4) are those who are not adequately represented in the services under the State. [841-A-C]

B 'Class' under Article 16(4) cannot be read as 'caste'. Castes cannot be adopted as collectivities for the purpose of identifying the "backward class" under Article 16(4). [822-C]

Occupation (plus income or otherwise) or any other secular collec- tivity can be the basis for the identification of "backward classes". Caste- c collectivity is unconstitutional and as such not permitted. [822-C, DJ

A backward class for the purpose of Article 16(4) can be identified solely on the basis of economic criteria. [853·F]

D Per P.B. Sawant, J.

The backward class of citi7.ens referred to in Article 16(4) is the socially backward class of citizens whose educational and economic back- w~rdness is on account of their social backwardness. A caste by itself may constitute a class. However, in order to constitute a backward class the caste concerned must be socially backward and its educational and economic backwardness must be on account of its social backwardness. [936-G, H; 937·A]

The economic criterion by itself cannot identify a class as backward unless the economic backwardness of the class is on account of its social backwardness. [937-A]

No reservations of posts can be kept in services under the State based exclusively on economic criterion either under Article 16(4) or under Article 16(1). [937-D]

The weaker sections mentioned in Article 46 are a genus of which backward class of citizens mentioned in Article 16(4) constitute a species. Article 16(4) refers to backward classes who are not adequately repre· sented in the services, and not for all the weaker sections that the reser- H vations in services are provided under Article 16(4). [937-B, CJ

INDRA SAWHNEY v. U.0.¹. 471

Per R.M. Sahai, J. (Dissenting) A Reservation under Article 16(4) being for any class of citizens and citizen having been defined in Chapter 11 of the Constitution includes not only Hindus, but Muslims, Christians, Sikhs, Buddhists, Jains etc., the principle of identification has to be of universal application so as to extend to every community and not only to those who are either converts B from Hinduism or some of whom to carry same occupation as some of the Hindus. [1006-A, B)

Social and educational backward class under Article 340 being nar- rower in import than backward class in Article 16(4) it has to be construed in restricted manner. And the words, "educationally backward11 in this Article C cannot be disregarded while determining backwardness. [1005-H) ldentificatioin or backward class by caste is against the Constitu- tion. [1005-E)

Identification or a group or collectivity by any criteria other than D caste, such as, occupation-cum-social-cum-educational-cum-economic criteri~· ending in caste 1nay not be invalid. [1005-G]

The prohibition is not mitig"ated by using the word, 'only' in Article 16(2) as a cover and evolving certain socio-economic indicators and then applying it to caste as the identification then suffers from the same vice. E Such identification is apt to become arbitrary as well as the indicators evoived and applied to one community may be equally applicable to other community which is excluded and the backward class of which is denied similar benefit. [1005-F]

Economic backwardness may give jurisdiction to State to reserve, F provi.ded it can find out m.echanism to ascertain inadequacy of repre· sentation of such class. But such group or collectivit)' does not fall under Article 16(1). [1006-F]

Per Majority View: G There is no constitutional bar to classification of backward classes into more backward and backward classes for the puposes or Article 16(4). The distinction should be on the basis of degrees of social backwardness. In case of such classification however, it \l'ould be advisable. nay, necessary. to ensure equitable distribution amongst the various bacirn'ard classes to avoid lumping so that one or two such classes do not eat away the entire quota lI

472 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A leaving the other backward classes high and dry. [697·F] Per Kuldip Singh, J. (Concurring)

The members of the backward class are differentiated into superior and inferior. The discrimination which was practised on them by the B superior class is in turn practised by the affiuent members of the back- ward class on the poorer members of the. said class. It is, therefore, necessary that the benefit of the reservation must reach the poorer and the weakest section of the backward class. Means-test can be applied to skim off the affiuent section of the "backward class". [850-G, H; 851-A-C]

C Per P.B. Sawant, J.

Article 16(4) permits classification of backward classes into back- ward and more or most backward classes. However, this classification is permitted only on the basis of the degrees of social backwardness and not D on the basis of the economic consideration alone. [937-H]

If backward classes are classified into backward and more or most backward classes, srparatc quotas of reservations will have to be kept for each of such classes. In the absence of such separate quotas, the reserva- tions will be illegal. [938-Aj E It is not permissible to classify backward classes or a backward class social group into an advanced section and a backward section either on economic or any other consideration. The test of advancement lies in the capacity to compete with the forward classes. If the advanced section in a backward class is so advanced as to be able to compete with the F forward dasses, the advanced section from the backward class no longer belongs to the backward class and should cease to be considered so and denied the benefit of reservations under Article 16(4). [938-B-C]

Per Majority View:

G For excluding 'Creamy layer', an economic criterion can be adopted as an indicium or measure of social advancement. [697-G]

Per S. Ratnavel Pandian, J. (Concurring)

No section of SEBCs can be excluded on the ground of creamy layer till the Government - Central and State - takes a decision in this regard

INDRA SAWHNEY v. U.0.¹. 473 on a review on the recommendations of a Commission or a. Committee to be appointed by the Government. (779-E]

Per R.M. Sahai, J. (Concuning)

Creamy layer amongst backward class of citizens must be excluded by fixation of proper income, property or status criteria. [1006-F] B

Per Majority View:

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 diver- c sity 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. D In doing so, extreme caution is to be exercised and a special case made out. (694-H; 695-A, Bl

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 E representation of backward class of citizens therein is not adequate. [697-EJ

To the extent, Devadasan is inconsistent herewith, it is over-ruled.

Per S.Ratnavel Pandian, J. (Dissenting) F 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 resen-ation only up to the maximum of 50% are unsustainable. [778-H; 779-A] G

Per Dr. T.K. Thommen, J. (Concuning)

Reservation of seats or posts for backward classes of citizens, in- cluding the Scheduled Castes and the Scheduled Tribes must remain well below 50% of the total seats or pos<s. [819-B] H

474 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A Per Kuldip Singh, J. (Concuning)

The reservations under Article 16(4) must remain below 50% and under no circumstance be permitted to go beyond 50%. Any reservation beyond 50% is constitutionally invalid. [850-BJ

B It is for the State lo adopt the methodology of providing reserva- tions below 50%. The State may provide the said reservation in respect of the substantive vacancies arising in a year or in the cadre or service. It would he permissible to carry forward the reserve vacancies of one year to the next year. The vacancies reserved in a year including those which are carried forward shall not exceed 50%. [850-C, DJ c Per P.B. Sawant, J. (Concuning)

Ordinarily, the reservations kept both under Article 16(1) and Ar-

D ticle 16(4) together would not exceed 50 per cent of the appointments in a grade, cadre or service in any particular year. It is only for extraordinary reasons that this percentage may be exceeded. However, every excess over 50 per cent will have to be justified on valid grounds which grounds will - haveto be specifically made not. [937-E]

The adequacy of representation is not to he determined merely on E the basis of the over all numerical strength of the backward classes in the senices. For determining the adequacy, their representation at different levels of administration and in different grades has to be taken into consideration. It is the effective voice in the administration and not the total number which determines the adequacy of representation. (937-F] F Per Majority View:. (*Except Ahinadi, J]

Reservation of appointment or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. !tis directed that this Court's decision on this question G 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 opera- H ti on for a period of five years from this day. Within this period, it would be

INDRA SAWHNEY v. U.0.¹. 475 open to the appropriate authorities to revise, modify or re-issue the relevant A 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. (698-B-D]

(*Ahmadi J was of the opinion that this question does not arise for con- B sideration in these writ petitions, hence need not be anwered. He did not associate himself with the discussion in that behalf.)

Per S. Ratnavel Pandian, J. (Concurring)

As regard the reservation in the matter of promotion under Article C 16(4), the conclusion of the Majority is agreed with. (779-B]

Per Dr. T.K. Thommen, J. (Concurring)

Reservation has no application to promotion. It is confined to initial appointment, whichever be the level or grade at which such appointment is made in the administrative hierarchy, and whether or not the post in question is borne on the cadre of the service. (817-F]

Per Kuldip Singh, J. (Concurring)

Article 16(4) permits reservation of appointments or posts in favour of any backward class of citizens only at the initial stage of entry into the State services. Article 16( 4) does not permit reservation either to the selection posts or in any other manner in the process of promotion. [849-A, BJ

Per P.B. Sawant, J. (Partly Concurring) F The reservations in the promotions in the services are unconstitu- tional as they are inconsistent with the maintenance of efficiency of ad- ministration. [938-Gl

However, the backward classes may be provided with relaxations, G exemptions, concessions and facilities etc. to enable them to compete for the promotional posts with others whenever the promotions are based on selection or merit-cum-seniority basis. [938-G]

The committee or body entrusted with the task of selection must be representative and manned by suitable persons including those from the H

476 SUPREME COURT REPORTS {1992J SUPP. 2 S.C.R. ' A backward classes to make an impartial assessment of the merits. [938-H; 939-A)

To ensure adequate representation of the backward classes which means representation at all levels and in all grades in the services, the rules of recruitment must ensure that there is direct recruitment at all B levels and in all grades in the services. [939-B]

Per R.M. Sahai, J. (Concurring)

Reservation in promotion is constitutionally impermissible as, once the advantaged and disadvantaged are made equal and are brought, in one c class or group then any further benelit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating effects of past discrimina- tion but perpetuating it. [1006-E)

Per Majority View: D While the rule of reservation cannot be callerl anti~meritarion, there are certain services and posts to which it may not be advisable to apply the rdle of reservation. [695-H]

Per S. Ratnavel Pandian, J. (Concuning) E It is agreed with the conclusion of the Maj.)rity qua exception to the rule of reservation to certain Services and posts. [779-C]

Per Dr. T.K. Thommen, J. (Concuning)

F Reservation in all cases must be confined to a minority of availahle posts or seats so as not to unduly sacrifice merits. [817-E]

Per Majority View:

No special standard of judicial scruitiny can he predicated in mat- G ters arising under Article 16(4). [697-H; 698-A] Per S. Ratnavel Pandian, J. (Dissenting)

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. [778-C] '

INDRA SAWHNEY F. U.0.¹. 477

The provision for reservation of appointrilents or posts in favour of any backward class of citizens is a matter of policy of the Government, of course, Sl!bject to the constitutional parameters and well settled principles of judicial review. [778-D]

Per Dr. T.K. Thommen, J. (Dissenting) B A periodic administrative review of all affirmative action program· mes, including reservation of seats or posts, must be conducted by a specially constituted Permanent Authority with a view to adjustment and readjustment of such programmes in proportion to the nature, degree and extent of backwardness. All such programmes must stand the test of C judicial review whenever challenged. Reservation being exclusionary in character must necessarily stand the test of heightened administrative and judicial solicitude so as to be confined to the strict bounds of constitu· tional principles. [817-H; 818-A, BJ

Per P.B. Sawant, J. (Dissenting) D There Is no special law judicial review when the reservations under Article 16(4) are under scrutiny. The judicial review will be available only in the cases of demonstrably perverse identification of the backward classes and in the cases of unreasonable percentage of reservations made for them. (938-E] E

Per R.M. Sahai, J. (Dissenting)

Reservation in public sen-ices either by legislative or executive ac· ~ion is neither a matter of policy nor a political issue. The higher courts in the country are constitutionally obliged to exercise the power of judicial F review in every matter which is constitutional in nature or has potential of constitutional repercussions. [1005-C, DJ

Per Majority View: G The distinction made between 'poorer sections' and ,others among the backward class is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as other backward classes. (696-A)

Per S. Ratnavel Pandian, J. (Dissenting) H

478 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A 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 B 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 c is constitutionally invalid and impermissible, Para 2(1) of the said amended Office Memorandum is struck down. (778-E-GJ

Per Dr. T.K. Thommen, J. (Dissenting)

Once a class of citizens is identified on correct principles as back- D ward for the purpose of reservation, the "means test" must. be strictly and uniformly applied to exclude all those persons in that class reaching above t~e predetermined economic level. (817-D]

Whenever and wherever poverty and backwardness are identified, it is the costitutional responsibility of the State to initiate economic and other measures to ameliorate the conditions of the p•ople residing in those regions. But economic backwardness without more does not justify reservation. (818-C]

Poverty demands affirmative action. Its eradication is a constitu- tional mandate. The immediate' target to which every affirmative action programme contemplated by Article 15 or Article 16 is addressed is poverty causing backwardness. But it is only such poverty which is the continuing ill-effect of identified prior discrimination, resulting in back- wardness comparable to that of the Scheduled Castes or the Scheduled Tribes, that justifies reservation. (818-D] G Per Majority View:

The reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not convered by any of the existing schemes of the reservation' made in the impugned Office Memorandum ·H dated25.9.1991 is constitutionally invalid and is struck down. (696-B]

INDRA SAWHNEY v. U.0.¹. 479

Per S. Ratnavel Pandian, J. (Concurring) A The reservation of 10% of the vacancies in civil posts and services in favour of other economically backward sections of the people who are not covered by any other scheme of the reservation as mentioned in para 2(ii) of the impugned amended Office Memorandum dated 25th September 1991 is constitutionally invalid and it is also struck down. [779-D) B Per B.P. Jeevan Reddy. J. on his behalf and on behalf of M.H. Kania, CJ., M.N. Venkatachaliab and A.M. Ahmadi, JJ.

1. The doctrine of equality has many facets. It is a dynamic, and an evolving concept. its main facets, relevant to Indian Society, have been C referred to in the Preamble and the Articles under the sub-heading "Right to equality" - (Articles 14 lo 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. D (543-H; 544-A]

2. 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 E Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles JS to 18. (544-G]

3. It is evident that "the weaker sections of the people" in Art. 46 do include the "backward class of citizens" contemplated by Article 16( 4). (547-F] F

-~ M.R. Balaji & Ors. v. State of Mysore, [1963) Suppl. 1 S.C.R. 439; CA. Rajendran ·1. Union of India, (1968) 1 S.C.R. 721; State ofAndhra Pradesh & Ors. v. P. Sagar, [1968] 3 S.C.R. 595; State of Andhra Pradesh · & Ors. v. U.S. V. Bairam, (1972] 3 S.C.R. 247; A. Peeriakarnppan etc. v. State G of Tamil Nadu, [1971) 2 S.C.R..430; T. Devadasan v. Union of India, (1964] 4 S.C.R. 680 and General Manager, Southern Railway v. Rangachari, (1962) 2 s.c.Ii 586, referred to. .

4. If the claims of even Scheduled Castes and Scheduled Tribes are to_. be taken into consideration consistently with the maintenance of ef- H

480 SUPREME COURT REPORTS f1992J SUPP. 2 S.C.R.

A ficiency of administration, the said admonition has to be respeoted equally while taking into consideration the ~!aims of other backward classes and other weaker sections. [550-0]

5. What do the two memorandums say, reatl together. The first provision made is: 27% of vacancies to be filled up by direct recruitment in B civil posts and services under the Governemnt 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 bqsis of merit in open c competition along with general candidates shall not be adjusted against the quota of27% 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 Manda! Commission and the respective State Government's list. Lastly, it is provided that 10% of the vacancies shall be reserved for D other economically backward sections of the people who are not covered by any of the existing schemes of reservations. [571-B-E]

"Judging the World: Law and Politics in the Worlds" Leading Couns - By Sir Anthony Mason, Page 343, referred to.

E 6. 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 therein and since that was not practicable in the normal course, a special prOvision was made to effectuate the said objective. 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. [580-G, H; 581-A)

State of Madras v. Champakam Dorairajan, [1951) S.C.11.: 525; G Venkataraman v. State of Madras, A.l.R.1951S.C.229; T.Devadasan v. Union of India, [1964) 4 S.C.R. 680; General Manager, Southern Railway v. Ran- gachari,. [1962) 2 S.C.R. 586; Balaji v. The State of Mysore, [1963) Suppl. 1 S.C.R. 439; Chitralekha v. State of Mysore, [1964) 6 S.C.R. 368; Minor P. Rajendran v. State of Madras, [1968) 2 S.C.R. 1012; Triloki Nath, [1969) 1 S.C.R. l³;A. Peeriakaruppan etc. v. State of Tamil Nadu, [1971) 2 S.C.R. 430; H State ofA.P. v. U.S. V Balaram, [1972) 3 S.C.R. 241;/anaki Prasad Parimoo v.

INDRA SAWHNEY v. U.0.¹. 481

State ofJ. & K., (1973] 3 S.C.R. 236; State of U.P. v. Pradip Tandon, [1975] 2 A S.C.R. 761; Thomas, [1976] 1S.C.R.906 and K.C. Vasant Kumar&Anr. v. State of Kamataka, (1985] Suppl. 1 S.C.R. 352, referred to.

7. Parliament, which enacted the first Amendment to the Constitu- tion, was in fact the very same Constituent Assembly which had framed the Constitution. [584-C] B

8. Section 1 of the Fourteenth Amendment (insofar as it guarantees equal protection c-' the laws) corresponds to Article 14 but they do not have provisions corresponding to Article 16(4) or 15(4). Title IV of the Civil Rights Act enacted in 1964 roughly corresponds to Clause (2) of C Articles 15 and 16. (606-H; 607-A]

Dred Scott v. Sanford, [1857] 15 L.E. 691; Brown v. Board of Educa- tion, [1954] 98 L.E. 591; Rolling v. Sharpe, [1954] 98 L.E. 583; Plessey v. Ferguson, [1896] 41 L.E. 256 = (1896] 163 US 537; Defunis v. Charles Odegaard, (1974] 40 L.Ed. 2nd. 164; Regents of the University of California D v. Allan Bakke, (1978] 57 L.Ed. 2nd 750 Fullilove v. Phillip M. Klutznic (1980] 65 Lawyers Ed. 2nd 90; Metro Broadcasting, Inc. v. Federal Com- munications Commission, 58 IW 5053, referred to.

9. Article 16(1) is a facet of Article 14. Just as Article 14 permits reasonable classification, so does Article 16(1). A classification may in- E volve reservation of seats or vacancies, as the case may be. In other words, under clause (1) of Article 16, appointments and/or posts can be reserved in favour of class. (607-B]

Bakke, [1978] 59 L.Ed. 2nd 750; Board of Education v. Swann, 28 L. Ed. 2nd 586 and Metro Broadcasting Inc., 58 IW 5053, referred to. F

10. The words "order", "by-law", "rule" and "regulation" in definition clanse (a) of Article 13(3) 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 some of the statutory corporations like Universities may have their own legislative wings. In such a situation, it would be unreasonable and inappropriate to insist that reservation in all these H

482 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A services should be provided by Parliament/Legislature. The situation and circumstances of each of these bodies may vary. The rule regarding reser- vation has to be framed to suit the particular situations. All this cannot reasonably be done by Parliament/Legislature. [609-B-D)

11. The very use of the word "provision" in Article 16(4) is significant. B Whereas clauses (3) and (5) of Article 16 - and clauses (2) to (6) of Article 19 - use the wold "Law", Article 16(4) uses the word "provision". Regulation of service conditions by Orders and Rules made by the Executive was a weil known feature at the time of the framing of the Constitution. (609-E)

12. Provision contemplated by Article 16(4) can also be made by the c executive wing of the Union or of the State, as the case may be, as has been done in the present case. (609-F]

B.S. Yadav, AIR 1981 S.C. 561, referred to.

13. There is adequate safeguard against misuse by the political D executive of the power under Article !6(4) in the provision itself. Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction; the exercise is an objective one. (609-G]

Balaji, (1963) Suppl. 1 S.C.R. 439 and Comptroller & Auditor E General of India v. Mohan Lal Mehrotra, A.l.R. 1991 S.C. 2288, referred to.

14. 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. (609-H; 610-A) F

16. Until a law is made or rules are issued under Article 309 "1th H respect to reservation in favour of backward classes, it would always be open

INDRA SAWHNEY v. U.0.¹. 483 to the Executive (Government) to provide for reservation of appoint- A ments/posts in favour of Backward Classes by an executive order. [611-F, G)

17. The impugned Memorandums were not issued under the proviso to Article 309. They were never intended to be so, nor is that the stand of the Union Government before the court. They are executive orders issued under Article 73 of the Constitution read with clause (4) of Article 16. The mere B 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. [611-G, H; 612-A]

18. 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 the view that larger concept c of reservations takes within its sweep all supplemental and ancillary 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 administration are instances of supplementary, incidental and ancil- lary provisions made with a view to make the main provisions of reserva- tion effective i.e., to ensure that the members of the l'eserved class fully avail of the provision for reservation in their favour. [614-A-C)

19. Where the State finds it necessary - for the purpo;e of giving full effect to the provision of reservation to provide certain exem1-•tions, conces- sions or preferences to members of backward classes, it can e~end the same under clause (4) itself. In other words, all supplemental and .ancillary provisions to ensure full availment of provisions for reservations can be provided as part of concep.t 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 fa,·our of "the backward class of citizen". Backward classes having been classified by the Constitution itself as a class deserving special treatment and the Con- stitution 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) o~ Article 16. [615-C-EJ

20. ¥ticle 16(1) does permit reasonable classification for ensuring H

484 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A 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 per- petuate and accentuate inequality. Article 16(4) is an instance of such classification, put into place the matter beyond controversy. The "back· ward class of citizens" are classified as a separate category deserving a B special treatment in the nature of reservation of appointments/posts in the services of the State. [612-G, HJ

21.Clause (4) ofArticle 16is not an exception to clause (1) ofArticle 16. It is an instance of classification implicit in and permitted by clause (1). C Article 16(4) is a provision which must be read along with and in harmony with clause (1). 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. [612H; 613-A·CJ

22. Clause (4) is not, and cannot be held to be, exhaustive of the concept of resen-ations; it is exhaustive of reservations in favour of backward classes alone. Merely because, 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 reserva- tions, of whatever kind, should be provided under clause (1). In such cases, the State bas 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 clauses deserving special treatment. [615·C-F]

Balaji, [1963] Suppl. 1 S.C.R. 439 and Champakam, [1951] S.C.R. 525, referred to. G State of Kera/a & Ors. v. N.M. Thomas, [1976] 1 S.C.R. 906, ap- proved.

Devadasan, [1964] 4 S.C.R. 680, overruled.

H 23. Reservation is the highest form of special provision, while

INDRA SAWHNEY v. U.0.¹. 485 preference, concession and exemption are lesser forms. The Constitution- A al scheme and context of Article 16(4) induces this Court to take the view that larger concept of reservation takes within its sweep all supplemental and ancillary 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 admoni- tion of Article 335. [614-A, BJ B

Karamchari Sangh, [1981J 2 S.C.R. 185 and T11omas, [1976J 1 S.C.R. 906, referred to.

24. Where the State finds it necessary - for the purpose of giving full effect to ~he provision of reservation to provide certain exemptions, con- cessions or preferences to members of backward classes, it can extend the same under clause (4) of Article 16 itself. In other words, all supplemental and ancillary provisions to ensure full availment of provisions for reser- vations can be provided as part of concept of reservation itself. Similarly in a given situation, the State may think that in the case of particular backward class it is not necessary to provide reservation of appoint- ments/posts and it would be sufficient if a certain preference or a conces- sion 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 E Classes having been classified by the Constitution itself as a class deserv- ing special treatment and the Constitution having itself specified the nature of special treatment, it should be presumed that no further clas- sification or special treatment is permissible in thier favour apart from or ontside of clause (4) of Article 16. [615 C-FJ F

25. Clause (4) of Article 16 is not, and cannot be held to be, exhaus- tive of the concept of reservations; it is exhaustive of reservations in favour of backward classes alone. 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(l). In such cases, the State has to G satisfy. If called upon, that making such a provision was necessary (in public inte~est) to redress a specific situation. [615-H; 616-A, BJ

26. If reservations are made both under claude (4) of Article 16 as well as under clause (1), the vacancies available for free competition as

- well as reserved categories would be correspondingly whittled down and H

486 SUPREME COURT REPORTS [J992J SUPP. 2 S.C.R.

A that is not a reasonable thing to do. [616-C]

27. The argument that clause (I) of Article 16 permits only extend- ing of preferences, concessions and exemptions, but does not permit reservation or appointments/posts is rejected. [616-E, F]

B 28. 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. [616-F)

29. In pre-independent India, the expressions 'class' and 'caste' were used interchangeably and caste was understood as an enclosed class. c [633-C]

30. The words "class of citizens - not adequately represented in the services under the State" would have been a vague and uncertain descrip- tion. By adding the word "backward" and by the speeches of Dr. Ambedkar D and Sri K.M. Munshi, it was made clear that the "class of citizens ....not adequately represented in the services i.nder the State" meant only those classes of citizens "'ho were not so represented on account of their social backwardness. [634-E]

Cilitra/ekha, [1964) 6 S.C.R. 368; Venkatramana, A.l.R.1951S.C.229; Champakam, [1951) S.C.R. 525; Ba/aji, [1963) Suppl. l S.C.R. 439; Parimoo. [1973] 3 S.C.R. 236; Minor P.Rajendran, [1968) 2 S.C.R. 786; Bairam, [1972) 3 S.C.R. 247; Triloknath, [1969) l S.C.R.103; Vasant Kumar, [1985] Suppl. l S.C.R. 352; Jaysree, [1977) l S.C.R- 194; Madhu Limaye, A.¹.R. 1969 S.C. 1014 at 1018; Go/aknath, A.l.R. 1967 S.C. 1643 at 1657; Dhillon, [1972] 2 S.C.R. 33, Keshavananda, [1973) 4 S.C.C. 225 and F Peeria Kamppan, [19711 2 S.C.R. 430, referred to.

31. The word "Community" is clearly wider than "caste" - and "back- ward communities" meant not only the castes -wherever they may be found - but also other groups, classes and sections among the populace. It is significant to notice that through-out his speech in the ConstitutentAssemb- ly, Or. Ambedkar was using the word, "communities" (and not "castes"), which expression includes not only the castes among the Hindus but several other groups. There are very go?d reasons why the Constitution could not have used the expression "castes" or "caste" in Article 16(4) and why the word "class" \t'as 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,

INDRA SAWHNEY v. U.0.¹. 487

Christianity and Sikh did not recognise caste as such though, castes did exist even among these religions to a varying degree. [635-D-G]

"Castes in India: Their A1echanisnz, <Jenesis and Developtnent: Dr. Ambedkar (speech delivered on 9.5.1916 at the Columbia University uf New York, U.S.A.) - Published in Indian Antiquary - May 1917 - Vol. X LI; Encyclopaedia Britanica - Vol. 16; Legal Thesaurus (Regular Edition); B Webster's English Dictionary; Encyclopaedia Britanica - II - Micro-paedia, pages 618-619, referred to.

32. 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 c 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 of a citizens. The word 'class' in Article 16(4) is used in the sense of social class and not in the sense it is understood in Marxist jargon. [ 635-G, H; 636-A] D

33. A caste is nothing but a social class - a socially homogeneous class. It is also an occupaiional grouping, with this difference tbatits membership is hereditary. One is born into it. Its membership is in voluntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. Endogamy is its main characteristic. Its social status and E standing depends upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierar- chy. 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 be has earned money. He may not follow that particular occupation. F 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. Urbanisation bas to some extent broken this caste - occupation nexus but not wholly. Lowly occupation results not only in low social position but also in poverty; it generates poverty. "Caste- occupation- G poverty" cycle is thus an ever present reality. This is the stark reality not withstanding 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 and classes of society and any programme designed to eradicate this evil must recognise this ground H

488 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A reality and attune its programme accordingly. Merely burying our heads in the sand ·Ostrich - like. wouldn't help. One cannot fight his enemy without recognising him. [637-C-H; 638-A-D]

34. Without a doubt, an extensive restructuring of socio-economic 'system is the answer. That is indeed the goal, as would be evident from the B Preamble and Part JV (Directive Principles). [638-E]

35. The true purport of clause (2) of Article 16 is, it prohibits discrimination of any or all of the grounds mentioned therein. The sig· nificance of the word 'any' cannot be minimised. Reservation is not being C 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 backward class is not adequately represented in the services of the State. In such a situation, the bar uf clause (2) of Article 16 has no application whatsoever. [641-A-C] D

36. If a Commission/Authority begins its process of identification with castes (among Hindus) and occupational groupings among others, it cannot ~y that reason alone be said to be constitutionally or legally bad. There is no rule of law that a test to be applied for identifying backward classes should be only one and/o~ uniform. In a vast country like India, it E 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. [640-F, GI

37. None can deny· in the face of the material collected by the various Commissions including Manda! Commission - that discrimination persists even today in India. The representation of the socially backward classes in the Governmental 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. [643-B, CJ

38. Certain classes which may not qualify for Article 15(4) may qualify as backward class of citizens for the purposes of Article 16(4). It

INDRA SAWHNEY v. U.0.¹. 489 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 S.E.B.Cs. are labouring and for improving their conditions. Thus, S.E.B.Cs. referred to i~ Article 340 is only one of the categories for whom Article 16(4) was enacted; Article B 16(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 c speaking of reservation in appointments/posts in the State services - which may mean, at any level whatsoever - insisting upon educational backward- ne£s may not be quite appropriate. [643-C-F)

- referred to.

39. The backwardness contemplated by Article 16(4) is mainly social backwardness. It would not be correct to say that the backwardness under D

Article 16(4) should be both social and edncational. The Scheduled Tribes and the Scheduled Castes are without a doubt backward for the purposes E · of the clause; no one has suggested that they sbonld satisfy of test the social and edncational backwardness. The Manda! Commission appointed under Article 340 was 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 Manda! Commission - 12 Ol!t of 22 total points. Social backwardness - it may be reiterated - leads to edncational and economic backwardness. No objection can be, nor is taken, to the validity and relevancy of the criteria . adopted by the Manda! Commission. [644-B-D)

40. Itis not a question of permissibility or desirability of means test but one of proper and more appropriate identification of class' - a backward class. The very concept of a class denotes a number of persons having certain common traits which distinguish them from o.thers. In a backward class under clause (4) of Article 16, ifthe connecting link is the social backward- ness, it should broadly be the same in a given class. If some of the members are too far advanced socially (which in the context, necessarily means H

490 Slfl'RFMF COURT R\,l'ORTS jl992J SUPP. 2 S.C.R.

A econon1ically 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,

- surh exclusion benefits the trul backward. Clause (4) aims at group back- wardnes~; exclusion of such socially advanced members will make the 'class' a truly backward dass and would more appropriately serve the purpose and B obect of c!ause (4). (647-H; 648-A-C]

Jayasree, (1977] 1 S.C.R. 194; Vasant Kumar, (1985] Suppl. l S.C.R. 352 and Ba/aji, (1963] Suppl. 1 S.C.R. 439, referred to.

41. Neither the Constitution nor the law prescribe the procedure or c method of identification of backward classes. Nor is it possible or ad- visable 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 sun'ey covers the entire populace, no objection can be taken to it. Identification of the back"'·ard classes can certainly be done with reference to castes among and along with other groups, classes and sections of people. One can start the process with the castes, whenever 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 pm·pose 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 socia ~ 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. (651 -C-F]

42. It is not necessary for a class to be designated as backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. 'Creamy layer' can be and must be, excluded. [651-F, G] G Exclusion of'Creamy layer' must be on the basis of social advancement (such advancement as renders them misfits in the backward classes) and not on the basis of mere econon1ic criteria. 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 ata true backward class. [679-E, F]

INDRA SAWHNEY v. U.0.¹. 491

43. A backward class cannot be determined only and exclusively with reference to economic criterion. It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion. A backward class can be identified on the basis of occupation- cum-income without reference to castE. [652-G]

Chitralekha, [1964] 6 SCR 368, relied on. B

44. 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 c expression 'backward class of citizens". The accent in Article 16(4) ap- pears to be on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. The cla.-es contemplated by Article 16(4) may be wider than those con- templated by Article 15(4). [651-G, H; 652-A] D

45. The Government of India is directed 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 111onths. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the. Other E Backward Classes (covered by the expression 'backward class of citizens') for the purpose of Article 16(4). [649-D]

46. The impngned Office Memorandum dated 13th August. 1990 and 25th September, 1991 shall be implemented subject only to such specifica- tion and exclusion of socially advanced persons from the backward classes F contemplated by the said O.M. In other words, after the expiry of four A• 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. [649-E, F] G

47. There is no constitutional or legal bar to a State categorising the backward classes as backward and more backward. Th•s is not saying that it ought to be done. [655-B]

48. 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 H

492 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A fair manner and within reasonable 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. From this point of view, the 27% reservation provided by the impugned Memorandum in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and B Scheduled Tribes, it comes to a total of 49.5%. [659-B-D]

49. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the gnarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out C to every citizeu and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being 'confined to a minority of seats'. [659-F]

SO. While 50% shall be all rule, it is necessary not to put out of consideration certain extra-ordinary situations inherent in the great diver- D sity of this country and the people. It might happen that in fartlung 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 cbaracteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, E extreme caution is to be exercised and a special case made out. [660-B]

Devadasan, [1964] 4 S.C.R. 680; Thomas, [1976] 1 SCR 906; Vasanl Kumar, [1985] Sppl. 1 S.C.R. 352; Ba/aji, [1963] Suppl. 1 S.C.R. 439 and Karamchari Sangh, [1981] 2 S.C.R. 185, referred to.

F 51. 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 resen-ations' and 'horizontal reservations', The resenrations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reserva- G !ions in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical resen-ations - what is called interlocking 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 be will

INDRA SAWHNEY v. U.0.¹. 493 be placed in that quota by making necessary adjustment; similarly, if he belongs to open competition (0.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 back- ward 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 continuo that procedure. [660-E-HJ B

52. It Is 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). [661-AJ c

53. It must be remembered that the equality of orportunity guaran- teed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disad- vantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the purpose of applying the D 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. [663C, DJ

Balaji, [1963J Supp. 1 S.C.R. 439; Karamchari Sangh, [1981] 2 S.C.R. 185 and Thomas, [1976] 1 S.C.R. 906, referred to. E Devadasan, [1964] 4 S.C.R. 680 - Partly approved (Note so far as it strikes down the rule providing for carry forward of unfilled reserved vacancies, held not sustainable.)

54. 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, promo- tion 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, ~r course, in addition to the provision for reservation at the entry (direct recruitment) level. [667H; 668-A, BJ

SS. At the initial stage of recruitment resen-ation can be made in H

194 SUPRJ,ME COURT REPORTS [1992] SUPP. 2 S.C.R.

A favuur of backward class of citizens but once they enter the service, efficiellcy of administration demands that these members too compete nith others and earn promotion like all others; no further distinctiun can be made thereafter with reference to their "birth-mark". They are expected to operate on equal footing "ith others. Cnitches cannot be provided throughout one's career. That would not be in the interest of the nation. B It is wrong to think that by holding so, the Court is confining the back· ward 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 III. [672-D-F)

Rangachari, [1962) 2 S.C.R. 586; Hiralal. [1971) ~ S.C.R. 267; Karam- c chaii Sangh, [1981] 2 S.C.R. 185 and Jagannathan, [1986) 2 S.C.R. 17, referred to.

56. While it is certainly just to say that a handicap should be given to back\lard class of citizens at the stage of initial appointment, it would be a D serious and unacceptable inroad into the nile of equality of opportunity to say that ouch 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 administra- tive apparatus. The members of resen-ed categories need not have to com- pete "1th others but only among themselves. There would be no "111 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 feelinr_ of despondence and 'heart·burning' among open competition members. All this is bound to effect the efficiency of administration. [672-A-C)

57. Putting the members of back\larcl classes on a fast track would necessarily result in leap-frogging and the deleterious effects of 'leap- frogging' need no illustration. [672-D)

58. To the extent, the majority opinion in Rangachari holds, that Article 16( 4) permits reservation even in the matter of promotion, is not sustainable in principle and ought to be departed from. [673-A]

59. Decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. [tis further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or H State Sen·ices, or for that matter services under any corporation, authority

INDRA SAWHNEY v. U.0.¹. 495 or body falling under the definition of 'State' in Article 12 - such reserva- A tions shall continue in operation for a period of five years from this day. Within this period, it wo~ld 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 B to do so. It shall be open to the Government to notify which classes among the several desig!lated other backward classes are more backward for the pur- poses of this clause and the apportionment of reserved vacancirs/pGsts among 'backward' and 'more backward'. On such notification the clause will become operational. [673-A-D; 680-H] c Rangachari, [1962] 2 S.C.R. 586 and Karamchari Sangh, [1981] 2 S.C.R. 185, referred to.

60. Clause (i) of the Office Memorandum dated 25th September, 1991 provides for a preference in favour of "poorer sections" of the back- D ward classes over other members of the backward classes. 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. Understood E in this sense, the said classification is not and cannot be termed as invalid either constitutionally speaking or in law. [680-A-D]

61. 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 alone counts. In such situations, it may not be F '. advisable to provide for reservations. [677-F, G]

62. It may not be permissible to debar a citizen from being cosidered 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 con- G ceiverl to service the people no such bar can be created. Any such bar would be inconsistent with the guarantee of equal opportunity held out by clause (l) of Article 16. On this ground alone, the said clause in the Office Memoran- dum dated 25.5.1991 fails and is accordingly declared as such. [681-D, E]

63. The Government of India has adopted the State lists obtained as H

496 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

.· A 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 appointed 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 cnmmission reports are available, the State Government is bound to look into them B 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 oLindia 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 c 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 commis- sion, 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 D or deletions, as it thinks appropriate on the basis of the Reports of the Commission(s). [689G, H; 690-A-C]

64. Appointment of a Commission under Article 340 is not necessary to identify the other backward classes. Article 340 does not say so. [690-E] E

65. The direction 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. Constitution of such Commission both ·. at Central and State level is directed. Persons aggrieved can always approach them f~r appropriate redress. Such Commission, which will F 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. [691-D, E]

66. The Government of India, each of the State Governments and the G Administrations of Union Territories are directed to constitute a permanent body within four months for entertaining, examining and recommending upon requests for inclusion and complaints of over-inclusion and under-in- clusion in the lists of other backward classes of citizens. The advice tendered by such body shall ordinarily be binding upon the Government. [698-F, GI

H 67. Within four months, the Government of India is directed to

INDRA SAWHNEY v. U.O.I. 497 specify the basis, applying the relevant and requisite socio-economic A criteria to exclude socially advanced persons/sections ('Creamy layeI-') from 'other Backward Classes'. The implementation of the bnpugned O.M. dated 13th September, 1990 shall be subject to. exclusion of such socially advanced persons ('Creamy layer'). This direction shall not how- ever apply to States where the reservations in favour of backward classes are already in operation; they can continue to operate them. Such States B shall however evolve the said criteria within six months and apply the same to exclude the socially advanced persons/sections from the desig- nated 'Other Backward Classes'. [698-H; 699-A, Bl

68. The Office Memorandum dated August 13, 1990 is held valid and enforceable subject to the exclusion of the socially advanced members/sec- tions from the notified 'Other Backward Classes'. [699-E]

69. To make Clause (i) of the Office Memorandum date.-September ZS, 1991 valid, it is 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. [699-F]

70. Clause (ii) of the Office Memorandum dated September ZS, 1991 is held invalid and inoperative. [699-G] E

Per S. Ratnavel Pandian, J.

1. The founding fathers of the Constitution have designedly couched Articles 14, 15 and 16 in comprehensive phraseology so that the frail and emaciated section of the people living in poverty, rearing in obscurity, possessing no wealth or inRuence, 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. [700-F, G]

Z. The expression deployed in both the OMS, "Socially and Educa- tionally Backward Classes" is on the strength of the Report of the Com- mission, though no such expression is used in Article 16(4) whereunder the reservation of appointments or posts in favour of any backward class H

498 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A of citizens is to be made. This expression is used as an explanatory one to the words 'backward class' occurring in Article 16(4). [713-E, F]

3. The object of the newly introduced clause (4) to Article 15 was to ·bring Articles 15 and 29 in line with Article 16( 4), 46 and 340 and to make : it constitutionally valid for the State to reserve se•ts for backward class B of citizens, scheduled castes and scheduled tribes in the public education- al institutions as well as to make other special provisions as may be necessary for their advancement. (715-D)

Smt. Champakam Dorairajan & Anr. v. State of Madras, A.l.R. 1951 C Madras 120; State of Madras v. Smt. Champakam Dorairajan, [1951) S.C.R. 525 and State of Uttar Pradesh v. Pradeep Tandan & Ors., [1975) 2 S.C.R. 761 at 766, referred to.

4. The Goveniment both in the earlier O.M. and the subsequent amended O.M. has used the expression 'socially and educationally backward D classes' thereby qualifying the word 'backward' as 'socially and educational- ly 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 reser· vation meant for'socially and educationally backward classes'. [718-G, HJ

E 5. The words 'backward class' in Article 16(4) are used with a wider connotation and without any qualification or explanation. Therefore, it must be construed in the wider perspective. Though the O.Ms. speak of social and edncational backwardness of a class, the primary consideration in identify. leg a class and ia 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 ibe educa- tional backwardness and the economic backwardness, because in identifying aod classifying a section of people a5 a backward class within the meaning of G Article 16(4) for the reservation of appointments or posts, the 'social backwardness' plays a predominant role. [738-H; 739-A)

Constituent Assembly Debates, Volume Vil, pages 700-703, nferred to.

M.R. Balaji v..ShJte of Mysore, [1963] Suppl. 1 S.C.R. 439 and H Vasanth &mar, [1935] Supp. s.c.R. 352, referred to.

INDRA SAWHNEY v. U.OJ. 499

6. The word 'backward' is very wide bringing within its fold the social backwardness, educational backwardness, economic backwardness, political backwardness and even physical backwardness. [718-H; 719-A]

7. A group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense not having so much of intellect and ability will fall within the ambit of 'any backward class of citizens' under Article 16(4) of the Constitution. [723-D}

8. Articles 15(4), 16(4) and 340(1) do not speak of 'caste' but only 'class'. [724-C] C

9. The word 'caste' is not used in the Constitution as Indicative of any section of people or community except in relation to 'Scheduled Castes' which is defined in Article 366(24). However, the word 'caste' in Articles 15(2), 16(2) and 29(2) does not include 'scheduled caste' but It D refers to a caste within the ordinary meaning of caste. The word 'scheduled caste' came into being only by the notification of the .President under Article 341. (724-F]

Oxford English Dictionary, Vol. II; Webster Comprehensive Dictionary (International Exition); Webster's Encyclopedic Unabridged Dictionary of E the English Language; Corpus Juris Secundum (14); Black Law Dictionary (Sixth Edition), Centnnial Edition (1891-1991), Encyclopedia American (5), referred to.

Chitralekha & Anr. v. State of Mysore & Ors., [1964] 6 S.C.R. 368 at F 388; Triloki Nath v. J & K State, [1969] l S.C.R. 103 at 105; KC. Vasanth Kumar v. Kamataka, [1985] Suppl. l S.C.R. 352; State of Kera/a & Ors. v. N.M. Thomas & Ors., (1976] l S.C.R. 906 at 996; Akhil bhartiya Soshit Karamchari Sangh v. Union of India & Ors., (1981] 2 S.C.R. 185 at 234; M.R. Balaji v. State of Mysore, [1963] Suppl. l S.C.R. 439; Minor P. G Rajendran v. State of Madras & Ors., [1968] 2 S.C.R. 786 at 790; State of Andhra Pradesh v. P. Sagar, [1968] 3 S.C.R. 59; A. Peeria Karuppan, etc. v. State of Tamil Nadu, [1971] 2 S.C.R. 430 at 443; State of Andhra Pradesh & Ors. v. U.S. V. Ba/ram etc., [1972] 3 S.C.R. 247; Kumari K.S. Jayasree & Anr. v. The State of Kera/a & Anr., [1977] 1 S.C.R. 194 and UP. State v. Pradip Tandon & Ors., [1975] 2 S.C.R.,761 at 766, referred to. H

5011 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A Rise & Awakening of Depressed Classes in India: by Sh. J. R. Kamble, referred to.

10.¹. Caste neither can be the sole criterion nor can it be equated with 'class' for the pupose of Article 16(4) for ascertaining the social and educational backwardness of any section or group of people so as to bring B them within the wider connotation of'backwart! class'. Never the less 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 c identify the 'backward class', a caste per se without satisfying the agreed formula 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. [728-D-F)

D 10.². Though the caste system is unknown to other communities such as Muslisms, Christians, Sikhs, Jews, Parsis, Jains etc. in whose respective religion, the caste system is not recognised and permitted, in practice, it cannot be irrefutably asserted that Islam, Christanity, Sikhism are all completely immune from casteism. [728-H; 729-A) E II. The basic policy of reservation is to off-set the inequality and remove the manifest imbalance, the victims of which for bygone genera· tions lag far behind and demand equality by special preferences and their strategies. Therefore, a comprehensive me!hodological approach encom- passing jurisprudential, comparative, historical and anthropological con· F ditions 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 discrimina- tion require compensatory treatment. Needless to emphasise that equality in fact or substantive equality involves the necessity of beneficial treat· G ment in order to attain the result which establishes an equilibrium be- tween two sections placed unequally. [799-B, CJ

The Complete Works of Swami Vivekananda, Vol. V page 29; New Testament; Sura IO Verse No. 44 of Holy Quran, referred to. ~

H Kesavananada Bharati v. Kera/a [1973) Suppl. I S.C.R., referred to.

INDRA SAWHNEY v. U.O.I. 501

12. A programme of reservation may sacrifice merit but does not in A 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. [751'8] B

13. The analytical study of American cases shows that the American- style justification of positive discrimination is on the gound of utility whereas the Indian-style justification is on the ground of constitutional rights. [753-F]

Bakke, Defimis & Minority Administrations (The Quest for Equal C Opportunity) By Allan P. Sindler, referred to.

Regents of the University of California v. Allan Bakke, 51 L.Ed. 2d 750; Defunis. v. Charles Odeganrd, (1974) 40 L.Ed. 2nd 164, referred to.

14. Clause (4) of Article 16 is not an exception to Article 16(1) and D (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 con- cerned and that under clause (1) of Article 16 reservation for appoint- ments or posts can be n1ade to other sections of the society such as E physically handicapped etc. [754-E]

15. Article 16(4) itself does not limit the power of the Government in making the reservation to any maximum percentage; but it depends upon G the quantum of adequate representation required in the Services. [759-D]

B. Venkataramana v. State of Madras, A.I.R. 1951 S.C. 229; Balaji's Case, [1963] Suppl. 1 S.C.R. 439; Comptroller & Auditor General v. Mohan Lal Mehrotra,, [1992] 1 S.C.C. 20; State of Punjab v. Hiralal & Ors., [1971) 3 S.C.R. 267; Mangat Singh v. Punjab State Police, A.I.R. 1968 Punjab 306; H

502 SUPREME COURT REPORTS \1992) SUPP. 2 S.C.R.

A Chief Controlling Revenue Authority v. Maharashtra Sugar Mills Ltd., [1950) S.C.R. 536; Official Liquidator v. Dharti Dhan; Delhi Administration v. l.K Nangia, [1980) 1 S.C.R. 1016; Jagannathan 's Case; Dr. N.B. Khare v. The State of Delhi, [1950) S.C.R. 519; Govindji v. Municipal Corporation, Ah· medabad, 1957 Bom.147; Virendra v. The State of Punjab & Anr., [1958) B 's.C.R. 308; The Barium Chemicals Ltd. & Anr. v. The Company Law Board & Ors., [1%6] Suppl. S.C.R. 311; Rohtas Industries v. S.D. Agarwal & Ors., [1969) 1 S.C.C. 325; Mohan Kumar Singhania v. Union of India, [1992) Suppl. 1 S.C.C. 594; Hindustan Zinc v. A.P. State Electricity Board, [1991) 3 S.C.C. 299; Sitaram Sugars v. Union of India & Ors., [1990) 3 S.C.C. 223; D.C.M. v. S. Paramjit Singh, [1990) 4 S.C.C. 723; Minerva Talkies v. State C of Kamataka & Ors., [1988) Suppl S.C.C. 176; State of Kamataka v. Ran- ganath Reddy, [1978] 1 S.C.R. 641; Kera/a State Electricity Board v. S.N. Govind Prabhu, [1986] 4 S.C.C.: Prag Ice Company v. Union of India & Ors., [1978) 2 S.C.C. 459; Saraswati Industries Syndicate Ltd., v. Union of India, (1975) l S.C.R. 956; Murti Match Works v.Assistanl Collector, Central D Excise & Ors., [1974] 3 S.C.R. 121: l. Govindraja Muda/iar v. State of Tamil Nadu & Ors., [1973] 3 S.C.R. 222 and Narendru Kumar v. Union of India & Ors., [1%9) 2 S.C.R. 375, referred to.

H.W.R. Wade Administrative Law V. Edu. Pages 228 and 229, Halsbury's Laws of England IV Edu. Vol. 1 Paras 27, 29 pages 34. 35, E referred to.

16. The O.M. has specifically used the expression, 'poorer sections' but not 'weaker sections' as contemplated under Article 46 of the Constitu· lion. 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 O.M. deliberately uses the expression 'poorer sections', it has become incumbent to examine what that expression means and whether there can be any sub-classification as 'poorer' and 'non~ poorer' among the same category of potential backward class of citizens on the anvil of economic criterion. [762-B, Cl

17. The O.M. 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 H Government evidently on economic criterion or by application of poverty

INDRA SAWHNEY v. U.O.l. 503 test based on the ceiling of income. ~fter 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 iden- tified SEBCs. [762-E, Fl

18. 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 umbrealla for many io get into this segregated section by adopting all kinds of illegal and unethical methods. Further, this will be totally unworkable and imprac- ticable in the determination of 'getting somebody in and getting somebody out' from among the same identified SEBCs. [765·8-D]

19. It will be 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. [765-D] D

20. The O.M. does not speak of any 'creamy layer test'. It cannot be said by any strech 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 E prudent to eliminate those individuals. Therefore, in such circumstances it is doubted 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' F which expression is to be tesied 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. [773-E-HJ G

21. When this Court is not called upon to lay a test or give any guideline as to who are all to be eliminated from the listed groups of the Report, there is no necessity to lay any test much less 'creamy layer test'. There is no grey area to be clarified and consequently it has to be held that what one is notfree to do directly cannot do it indirectly by adopting any means. Therefore, the H.

504 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A argument of'creamy layer' pales into insignificance. (775-D)

22. All SEBCs brought in the lists of the Commission which have been accepted and approved by the Government should be given equal oppor- tunity in availing the benefits of the 27 per cent reservations. In other words, the entire 27% of the vacancies in civil posts and services under the Govern- B ment of India shall be reserved and extended to all the SEBCs. [775-E)

23. The'poorer sections' of the SEBCs may be provided with various kind of concessions and f~cilities 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 c give them equal opportunity to compete and keep pace with the advanced sections of the people. [776·C)

It is for the first time that controversial issue as regards ihe equality of opportunity in matters of public .~mployment as contemplated under D Article 16(4) have come up for deliberation before a nine-Judge Bench, on being referred to by a five-Judges Bench. (705-C, D)

There are various Constitutional provisions such as Articles 14, 15, 16, 17, 38, 46, 332, 335, 338 and 340 which are designed to redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes and which have co1ne for judicial interpreta- tion on and oft'. It is not merely a part of the Constitution but also a national commitment. (705-D, E]

This Court which sta[\ds as a sentinel on the quie vie 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 quality of opportunity. [705-F)

G 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. So it is incumbent to lift the veil and see the notable aspirations of the Constitution. [705-G]

H Kcsvananda Bharti v. Kera/a, [1973) Suppl. SCR I, referred to.

INDRA SAWHNEY v. U.0.¹. 505

No one can be permitted to invoke the Constitution either as a A sword for an offence or as a shield for anticipatory defence, in the sense that no one under the guise of interpreting the Constitution can cause irrevertible injustice and irredeemable inequalities to any section of the people or can protect those unethically claiming unquestionable dynastic monoply over the Constitution benefits. (705-H; 706-A] B Per Dr. T.K Thommen, J.

1. Reservation is one of the measures adopted by the Constitution to remedy the continuing eVil effects of prior inequities stemming from.dis- criminatory practices against various classes of people which have resulted in their social, educationa.l and economic backwardness. (786-B, CJ

2. Reservation is meant to be addressed to the present social, educa- tional and economic backwardness caused by purposeful societal dis- crimination. To attack the continuing ill effects and perpetuation of such injustice, the Constitution permits and empowers the State to adopt corrective devices even when they have discriminatory and exclusionary effects. Any such measure, insofar as one group is preferred to the ex- clusion of another, must necessarily be narrowly tailored to the achieve- ment of the fundamental constitutional goal. (786-C; D]

. 3. Benign classification for affirmative action by resenation must stay strictly within the narrow bounds of remedial actions. Any such programme must be consistent with the fundamental objective of equality. Reservation is a remedy or a cure for the ill effects of historical dis- crimination. (786-E, H; 787-A] F

4. Reservation is not an end in itself. It is a means to achiev~ equality. The policy of reservation adopted to achieve that end must, therefore, be consistent with the objective in view. Every reservation founded on benign discrimination, and justifiably adopted to achieve the constitutional mandate of equality, must necessarily be a transient pas- sage to that end. It is temporary in concept, limited in duration, condition- G al in application and specific in object. Reservation must contain within itself the seeds of its termination. Any attempt to perpetuate reservation and upset the constitutional mandate of equality is destructive of liberty and fraternity and all the basic values enshrined in the Constitution. A balance has to be maintained between the competing values and the rival H

5Q6 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A claims and interests so as to achieve equality and freedom for all. (787-D-F]

5. The makers of the Constitution were fully conscious of the unfor- tunate position of the Scheduled Castes and the Scheduled Tribes. To them equality, liberty and fraternity are but a dream; an idea guaranteed by the law, but far too distant to reach; far too illusory to touch. These backward people and others in like positions of helplessness are the favoured children of the Constitution. It is for them that ameliorative and remedial measures are adopted to achieve the end of equality. To permit those who are not intended to he so specially protected to compete for reservation is to dilute the protection and defeat the very constitutional aim. !787-G, H; 788-A]

6. Reservation must one day become unnecessary and a relic of an unfortunate past. Every such action must be a transient self-liquidating programme. That is the hope and dream cherished by the Constitution Makers and that is the end to which the State has to address itself in making special provisfons for the chosen classes of people for special constitutional protection. [788-C, DJ

ConslituentAssembly Debates, Vol. 7 pp. 701·70.² (1948-49), referred to. E Regents of the University of Califomia v. Allan Bakke, 438 U.S. 265=57 L. Ed. 2d 750: H. Earl Fullilove v. Philip M. Klutznick, 448 U.S. 44R = 65 LEO 2d 902; Metro Broadcasting, Inc. v. Federal Communications Commission, 58 l.W. 5053 (Decided on 27.6.1990); Oliver Broin v. Board of Education of Topeka, 347 U.S. 4113 = 98 L.Ed. 2d 873; City of Richmond v. F JA. Croson Co., 48R U.S. 469 and Wendy Wygant v. Jackso11 Board of Education, 476 U.S. 267 = 90 L.Ed. 2nd 260, referred to.

7. The Constitution seeks to secure to all its citizens Justice, Liberty, Eqnality and Fraternity. These are the basic pillars on which the grand G concept of India as a Sovereign Socialist Secular Democratic Republic rest•. This splendour that is India rests on these magnificent concepts, each of which, supportuing the other, upholds the dignity and freodom of the individual and secures the inte.,-ity and unity of the nation. [788-G]

Smt. Indira Nehru Gandhi v. Shri Raj Narain, [1976) 2 S.C.R. 347, H 659; Minerva Mills Ltd. & Or.<. v. Union of India & Or.<., [1981) 1 S.C.R. 206, lNDRA SAWJJNEY v. U.0.¹. 507

241; Waman Rao & Ors. v. Union of India & Ors., [1981] 2 S.C.R. 1, 19; The A General Manager, Southern Railway v. Rangachari, [1962] 2 S.C.R. 586, 597; State of Kera/a & Anr. v. N.M. Thomas & Ors.,· [1976] 1 S.C.R. 906, 956, referred to.

8. The Constitution permits valid classification founded on an intelligible differentia distinguishing persons or things grouped together B from others left out. of the group. And such differentia must have a rational relation to the object sought to be achieved by the law. [789-B)

State of Kera/a &Anr. v. N.M. Thomas & Ors., [1976) I S.C.R. 906;Shri Ramkrisltna Dalmia v. Shri Justice S.R. Tendolkar & Ors; [1959] S.C.R. 279; South West Africa Cases (Second Phase). ICJ Rep. p. 6, 305-6, referred to. c

9. While Article 1.⁴ prohibits the State from denying equality to any person, Articles 15 and 16 are specially concerned with citizens. [790-B)

10. Backward class is composed of persons whose backwardness is in degree and nature comparable to that of the Scheduled Castes and the Scheduled Tribes, whatever be their religion. There can be no doubt abont the identity of the Scheduled Castes and the Scheduled Tribes. Nor can there be any doubt about the identity of backward classes other than the Scheduled Castes and the Scheduled Tribes, if this identifying charac- teristic, bearing the stamp of prior discrimination and its continuing ill effects, is borne in mind. [793-E, F)

State of A.P. & Anr. v. P. Sagar, [1968} 3 S.C.R. 595, 600: M.R.Balaji & Ors. v. State of Mysore, [1963] Suppl. 1 S.C.R. 439, 458; State of U.P. v. Pradip Tandon & Ors., [1975) 2 S.C.R. 761, 766 and Janki Prasad Parimoo & Ors. v. State of J.& K & Ors ... [1973) 3 S.C.R. 236, 25Z, referred to. F

11. In identifying backwardness, caste, religion, residence etc. are of course relevant factors, but none of them is a dominant or much less an indispensahle factor. What is of ultimate relevance is I.he social and educational backwardness of a class of citizens, whutever be their caste, G religion, etc. [795-F]

12. Identification of the backward classes for the purpose of reser- vation must be with reference to their social and educational backward- ness resulting from the continuing ill effects of prior discrimination or exploitation; and not solely with reference to any one or 1nore of the H

508 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A prohibited criteria mentioned in Article 15(1) or Article 16(2), although any one or more of such criteria may have been the ultimate cause of such discrimination or exploitation and the resultant poverty and backward- ness. [795-G, HJ

M.R. Balaji & Ors. v. State of Mysore, [1963J Suppl. 1 S.C.R. 439 at B 458; Kumari K.S. Jayasree & Anr. v. State of Kera/a & Anr., [1977J 1 S.C.R. 194, 198; Janki Prasad Parimoo & Ors. v.State of Jammu & Kashmir& Ors. [1973J 3 S.C.R. 236, 252; State of U.P. v. Pradip Tandon & Ors., [1975J 2 S.C.R. 761, 766; State of Kera/a & Anr. v. N.M. Thomas & Ors., [1976J 1 S.C.R. 906, 997; State of Andhra Pradesh & Anr. v. P. Sagar, [1968J 3 S.C.R. C 595, 600; K.C. Vasanth Kumar & Anr. State of Kamataka, [1985] Suppl. 1 S.C.R. 352, 376; R. Chitralekha & Anr. v. State of Mysore & Ors., [1964J 6 · S.C.R. 368 at 388; Triloki Nath & Anr. v. State of J & K & Ors., [1969J 1 S.C.R. 103, 105; A. Peeriakaruppan, etc., v. State of Tamil Nadu & Ors., [1971J 2 S.C.R. 430; State of A.P. & Ors. v. U.S. V. Bairam etc., [1972] 3 D S.C.R. 247, 280, 285; Akhil Bharaiiya Soshit Karamchari Sangh (Railway) v. Union of India & Ors., [1981] 2 S.C.R. 185, referred to.

Constituent Assembly Debates, Vol. 7 (1948-49), I'· 697, 702; Mannual of Election Law, Vol. I (1991) p. 141, B. Shiva Rao: The Framing of India's Constitution- A Study, (1968) pp. 198-199, referred to. E

13. Historically, backwardness has been the curse of people most of whom are characterised as the Scheduled Castes and the Scheduled Tribes. These are not castes as such, but classes of people composed of castes, races or tribes or tribal communities or parts or groups thereof and classified as such by means of presidential notifications owing to their extreme backward- F ness and other disadvantages vide Articles 341-342. [797-A, BJ

14. What is sought to be identified for the purpose of reservation is not caste or religion, but poverty and backwardness caused by historical discrimination and its continuing evil effects. Caste may be a guide in this search, just as occupation or residence may be a guide, but what is sought to be identified is none but backwardness stemming from historical dis- crimination. If caste is more often than not a guide in the search for backwardness and if the lowest of the low castes has for historical reasons become the indicium of backwardness of the kind attracting reservation, caste in the absence of any better guide is a factor to be taken into account along with other factors such as poverty illiteracy, physical and mental

INDRA SAWHNEY v. U.0.¹. 509 disabilities and other diseases caused by malnutrition, unhygienic condi· A !ions and the like. [798-C, D]

15. The Constitution is neither caste-blind nor caste-prejudiced.nor caste-overcharged, but fully alive to caste as one of the relevant criteria to be reckoned in the process of identification of backward classes of citizens. India is not a nation of castes but of people with roots· in divergent castes. B What the Constitution seeks to identify is not the backward caste, but the backward class of citizens who may in many cases be partly or in some cases predominantly or even solely identified with particular castes. [799-B]

Minor P. Rajendran v. State of Madras & Ors., [1968] 2 S.C.R. 786, referred to. C

16. Poverty by itself is not the test of backwardness for if it were so most people in this country would be in a position to claim reservation. [800-BJ D Janki Prasad Parimoo & Ors. v. State of J & K Ors., [1973] 3 S.C.R. 236, 285, referred to.

18. Poverty reduces a man to a state of helplessness and ignorance. The G poor have no social status. They have no access to learning. Over the years they invariably become socially and educationally backward. They may have no place in society and no education to improve their conditions. For them, employment in services on the basis of merits is a far cry. All these persons, along with other disadvantaged groups of citizens, are the favourites of the law for affirmative action without recourse to reservation. [801-B·CJ H

510 SUPREME COURT REPORTS 11992] SUPP. 2 S.C.R.

A State of U.P. v. Pradip .Tandon & Ors., [1975] 2 S.C.R. 761; State of Kera/a & Anr. v. N.M. Thomas & Qrs., [1976]_ 1 S.C.R. 906, 960, 997; Kumari KS. Jayasree & Anr. v. State of Kera/a & Anr., 11977] 1S.C.R.194 and K.C. Vasanth Kumar v. State of Kamataka, [1985] Supp. 1 S.C.R. 352, 399, 400, referred to.

B 19. Article 16 deals with equality of opportunity lo matters of public employement. The kind of backwardness which is required to aUra<:t the special provisions protecting the backward classes or citizens under Ar- ticle 16 in respect of public employment is identical to the social and educational backwardness mentioned in Article 15(4). [801-E, FJ c M.R. Ba/aji & Ors. v. State of Mysore, [1963) Supp. 1 S.C.R. 439, 473, 474; Janki Prasad Parimoo & Ors. v. State of J & K Ors., [1973] 3 S.C.R. 236; State of Kera/a & Anr. v. N.M. Thomas & Ors., [1976) 1 S.C.R. 906, 956; The General Manager, Southern Railway v. Rangachari, [19ti²] 2 S.C.R. 586, 599; State ofA.P. &Anr. v. P. Sagar, [1968) 3 S.C.R. S95;Akhi/ Bhartiya D Soshit Kannachari Sangh (Railway) v. Union of India & Ors., [1981) 2 S.C.R. 185; Triloki Nath & Anr. v. State of J. & K & Ors., [1969) 1 S.C.R. 103, 104; C.A. Rajendran v. Union of India & Ors., [1968) 1 S.C.R. 721, 730, 733; State of Punjab v. Hirata/ & Ors., [1971] 3 S.C.R. 267, 272 and T.Devadasan v. The Union of India & Anr., [1964] 4 S.C.R. 680, referred to.

Constituent Assembly Debates, Vol. 7 (194849) p. 702, refer1'd to.

20. The twin conditions to warrant reservation under Article 16(4) are: backwardness of the chosen classes of citizens and there inadequate representation in the public services. The backwardness of the classes of I citizens mentioned in Article 16(4) is of the same degree and kind of social and educational backwardness as postulated in Article 15(4). Article 16(4) is meant for the protection of the Scheduled Castes and the Scheduled Tribes and other comparably backward classes of citizens who are the unfortunate victims of continuing ill effects of identified prior discrimina· tion. (802-F, GJ

21. Whether the conditions postulated for reservation are satisfied or not is a matter on which the State has to form an opinion. But the opinion of the State must be founded on reason. The satisfaction on the JH basis of which an opinion has been formed by the State must be rationally

INDRA SAWHNEY v. LJ.0.¹. 511

·supported by an objective consideration. 1'he State must take into account all relevant matters and eschew from its mind all irrelevant 1natters, and 1nake a proper assessment of the competing clain1s· of classes of citizens and evaluate t.heir respective backwardnes·s before it conies to the con· clusion that particular classes of citizens are so baCkl\·ard and so inade. quately represented in the public services as to be worthy of special protection by means or reservation. 'This must be an objective evaluation of the competi-ng claims for reservation. Any such co-nclllsion must be subject to periodic administrative review by a permanent body or experts with a view to adjustment and readjustment ~r the State action in accord- ance with the changing circumstances or the beneficiaries or such action. 'The conclusion thus periodically arrived at by such administrative review- C ing body must necessarily pass the test of judicial review whenev.er chal- lenged. [802-H; 803-A-C)

A. Peen'akamppan etc. v. Stale of Tamil Nadu & Ors., [1971) 2 S.C.R. 430; Shri Silaram Sugar Company Ltd. & Anr. elc. v. Union of India & Ors., [1990) 1 S.C.R. 909; Supreme Court Employees' Welfare Association v. D Union of India & Anr., [1989) 4 S.C.C. 187, referred to.

22. Identification or backwardness is an ever continuing process or inclusion and exclusion. Classes or citizens entitled to the constitutional · protection or reservaton must be constantly and periodically identified for E their inclusion and for the exclusion or those who do not qualify. To allow the undeserved to benefit by reservation is to deny protection to those who are meant to be protected. [803-G-H]

A. Peeriakamppan etc. v. Stale of Tamil Nadu & Ors., [1971] 2 S.C.R. 430 at 444, referred to. F

23. Any affirmative action must be supported by a valid classifica- tion and must have a rational nexus with the object of redressing back- wardness. It is much more so where such programmes totally exclude from consideration persons outside the chosen classes without regard to G merits because of the set aside quotas. [804-D]

State of Kera/a & Anr. v. N.M. Thomas & Ors., [1976) 1 S.C.R. 906, 956; Rangachari, [1962] 2 S.C.R. 586; M.R. Ba/aji, [1963) Supp. 1 S.C.R. 439 473; P. Sagar, [1968] 3 S.C.R. 595; Akhil Bhartia Soshit Karamchari Sangh (Railway), [1981] 2 S.C.R. 185; Triloki Nafh, [1969] 1 S.C.R. 103; H

512 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

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

24. Unlike Article 16(4), Article 15(4) is not so worded as to suggest B that it is exclusionary in character. The 'special provision' contemplated in Article 15(4) is an emphatic reference to the affirmative action which the State may adopt to improve the conditions of the disadvantaged members of the backward classes of citizens. Significantly, Article 15 (4) does not specifically speak of reservation, but it bas been generally under- C stood to include that power. [805-C, DJ

M.R. Ba/aji & Ors. v. State of Mysore, [1963) Suppl. 1 S.C.R. 439, referred to.

25. The concept of equality is not inconistent with reservation in D public services because the Constitution specially says so, but, in view of Its exclusion of others irrespective of merits, it can be resorted to only where warranted by compelling State interests postulated in Article 16. The State must be satisfied that in order to achieve equality in given cases, reservation is unavoidable by reason of the nature and degree of back- wardness. neservation must be narrowly tailored to that end, and sub- E jected to strict scrutiny. [805-F, G]

State of Kera/a & Anr. v. N.M. Thomas & Ors., (1976) 1 S.C.R. 906, referred to. I

26. Reservation is intended to redress backwardness of a higher F degree. Reservation prima facie is the very antithesis or a free and open selection. It is a discriminatory exclusion of the disfavoured classes of meritorious candidates. [807-C)

M.R. Ba/aji, (1963) Suppl. S.C.R. 439 and Jayasree, [1977) 1 S.C.R. G 194, referred to.

27. The State has vital interest to uphold the efficiency of ad- ministration. To ignore efficiency is to fail the nation. Any step taken by the State in considering the claims of members of the Scheduled Castes and the Scheduled Tribes for appointment to public services and posts H must be consistent with the maintenance of efficiency of administration.

INDRA SAWHNEY v. U.0.¹. 513

This principle, as stated in Article 335, must necessarily guide all affirm- A ative action programmes for backward and other disadvantaged classes of people in matters of appointment to public services and posts. Likewise, efficieny being a compelling State interest, it must strictly guide affirm- ative action in matters of admission to academic institutions, and more so in specialised institutions of higher learning, for. in the final analysis efficiency of public administration is governed by the quality of education .B and the skill of the scholars. To weaken efficiency is to injure the nation. Any reservation made without due regard to the command of Article 335 is invidious and impermissible. (808-G, H; 809-A, BJ

17ie General Manager, Southern Railway v. Rangachari, (1962) 2 C S.C.R. 586 and Akhil Bharliya Sos hit Karamchari Sangh (Railway), [1981) 2 S.C.R. 185, referred to.

28. To be overlooked at the time of promotion in favour of a person who is junior in service and having no claim to superior merits is to cause frustration and passionate prejudice, hostility and ill will not only in the mind of the overlooked candidates, but also in the minds of the generality of employees. Any such discrimination is unfair and it causes dissatisfac- tion, indiscipline and inefficiency. [809-G]

29. An appointment is necessarily to a post, but every appointment need not necessarily be to a post in a service. An appointment to an ex-cadre post is as much an appointment to a post as it is in the case of a cadre post. The words 'appointments or posts' used in the alternative, and in respect of which reservation can be made, indicate that the ap- pointment contemplated in Article 16(4) is not necessarily confined to posts in the services, but can be made to any post whether or not borne on the cadre of a service. Inadequate representation of any backward class of citizens enable the State to make provisions for the reservation of 'appointments or posts'. (8111-E, F)

17ie General Manager, Southern Railway v. Ranganchari, (1962) 2 G S.C.R. 586, referred to.

30. The object of reservation is to maintain numerical and qualita- tive or relative equality by ensuring sufficient representation for all clas· ses of citizens. In whichever service a backward class of citizens is inadequately represented, it is open to the State to create ·sufficient num- H

514 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A ber of posts for dired appointments. No matter whether the appointment is made to a cadre post or an ex-cadre post, the State action is beyond reproach so long as the Constitutional objective of numerical and qualita- tive equality of opportunity is maintained by making direct appointments at the appropriate levels whenever inadequate representation of any back- ward class in the services is noticed by the State. [810-H; 811-A, BJ B

31. Promotion by selection, though based on merits, is ultimately governed by seniority, for the concerned rules generally provide that, where merits are equal, officers will be ranked according to their seniority. In the case of promotion by seniority subject to fitness, merits are not C entirely disregarded, for even a senior officer can be overlooked in favour of junior officer, if the former is found to be unfit for promotion. In all promotions, whether by selection or otherwise, merits and seniority are both significantly relevant and reservation of such posts in disregard of these two elements will result in invidious discrimination. [811-E, F]

D 32. In whichever post that a member ofa backward class is appointed, reservation provisions are attracted at the stage of his initial appointment and not subsequently. Further promotions must be governed by common rules applicable to all employees of the respective grades. [811-G)

The General Manager, Southern Railway v. Rangachari, [1962) 2 E S.C.R. 586; State of Punjab v. Hirata/ & Ors., [1971) 3 S.C.R. 267 andAkhi/ Bharatiya Soshit Kamiachari Sangh (Railway), [1981) 2 S.C.R. 185, referred to. '•-

33, Reservation is the extreme limit to which the doctrine of affirm~

F alive action can be extended. Beyond the strict confines of clause (4) of Article 16, reservation in public employment has no warrant in the law for it then becomes the very antithesis of equality. [812-D) I Thomas, [1976) 1 S.C.R. 906, referred to.

G 34. Reservation affords backward classes of citizens a golden oppor- tunity to serve the nation and thus gain security, status, comparative affiuence and inOuence in decision making process. But it is wrong to see it as a mere weapon to capture power. [812-F)

Akhil Bharatiya Sos hit Karamchari Sangh (Railway), [1981) 2 S.C.R. H 185 at 203, referred to.

INDRA SAWHNEY v. U.0.l. 515

35. The sooner the need for reservation is brought to an end, the better it would be for the nation as a whole. The sooner all disabilities are redressed and wiped out all traces of historical discrimination, and sloped identifying classes of citizens by the stereotyped, stigmatised and ig- nominious label of backwardness, the stronger, healthier and better united we would have emerged as a nation founded on diverse customs, practices, religions and languages but knitted together by innumerable binding strands of common culture and tradition. [813-D]

3~. Reservation should be avoided except in extreme cases of acute backwardness resulting from prior discrimination as in the case of the scheduled castes and the scheduled tribes and other classes of persons in comparable postilions. Jn all other cases, preferential treatment short of reservation can be adopted. Any such action, though in some respects discriminatory, is permissible on the basis of a legitimate classification rationally related to the attainment of equality in all its aspects. [814-E]

37. Affirmative action is not merely compensatory justice which it is, but it is also distributive justice seeking to ensure that community resour- ces are more equitably and justily shared among all classes of citizens. Furthermore, from the point of view of social utility, affirmative action promotes maximum well-being for the society as a whole and strengthens forces of national integration and general economic prosperity. Affirm- E ative action must find justification in the removal of disadvantages and not in their imposition. [815-C]

Tribe; American Constitutional Law, 2nd Edn. (1988) pp. 1521, 1554; Kathleen M. Sullivan, Sins of Discrimination: Last Tenn's Affinnative Ac- tion Cases, Harvard Law Review, Vol. 100 p. 78 (1986-87), Mare Galanter: F Competing Equalities, (1984); Myrl L. Duncan: The Future of Affinriative Action: A Jurispntdential/Legal Critique, Harvad Civil Rights Civil Liberties Law Review, Vol. 17, 1982, p. 503; The Rights of Peoples, Edited by James Crawford, Oxford (1988), referred to. G Per Ku/dip Singh, J.

1. Secularism is the basic feature of the Indian Constitution. It envisages a cohesive, unified and casteless society. The Constitution has completely obliterated the caste-system and has assured equality before law. Reference to caste under Articles 15(2) and 16(2) is only to obliterate H

516 SUPREME COURT REPOR.TS [1992J SUPP. 2 S.C.R.

A it. The prohibition on the ground of caste is total, the mandate is that never again in this country caste shall raise its head. Even access to shops on the ground of caste is prohibited. The progress of India has been from casteism to egalitarianism, from feudalism to freedom. [827-F, GI

2. Caste and class are different etymologically. When you talk of B caste you never mean class or the vice-versa. Caste is an ironwframe into which people keep on falling by birth. [828-C]

Rg-Veda (The PurnshaSr<kta) - 10.90; Manava Dhanna Sastra (Law of Manu); Professor Harold A. Gould: "The Hindu Caste System'; L.P. Shar- ma: ''1ncient History of India"; Professor: Andre Beteille; "The Backward c Classes in Contemporary India"; M. Weber: "The Religion of India", referred to.

3. On a bare reading of the two sub-clauses of Article 16 it is obvious that the Constitution forbids classification on the ground of caste. No D backward class can, therefore, be identified on the basis of caste. [829-C]

R. Chitralekha & Anr. v. State of Mysore & Ors., [1964] 6 S.C.R. 368; Triloki Nath & Anr. v. State of Jammu & Kashmir & Ors., [1969] 1 S.C.R. 103; State of U.P. v. Pradip Tandon & Ors., (1975] 2 S.C.R.'761 andKumari KS. Jayasree & Anr. v. The State of Kera/a & Anr., [1977] 1 S.C.R. 194, E referred to.

4. Secular feature of the Constitution is its basic structure. Hin- duism, from which the caste-system flows is not the only religion in India. Caste is an anathema to Muslims, Christians, Sikhs, Buddhists and Jains. Even Arya Samajis, Brahmo Samajis, Lingayats _and various other F denominations in this country do not believe in caste-system. (831-F]

5. 'Class' under Article 16(4) cannot be read as 'caste'. Castes cannot' be adopted as collectivities for the purpose of identifying the 'backward class' under Article 16(4). [832-C] G M.R. Balaji & Ors. v. State of Mysore, [1963] Supp. 1 S.C.R. 439, referred to.

6. Occupation (plus income or otherwise) or any other secular collectivity can be the basis for the identification of 'backward classes'. H Caste-collectivity is unconstitutional and as such not permitted. (832-D]

INDRASAWHNEYv. U.0.¹. 517

7. Articles 340 and 15(4) are part of the same Constitutional A Scheme. Socially and educationally backward classes may be identified by a commission appointed under Article 340 and the said commission ·after investigation · may make recommendations, including the sanctioning of grants, for the uplift of the backward classes. Article 15(4) makes it possible to implement the recommendations of the commission and for that purpose permits protective discrimination by the State. Since there is B identity of purpose between the two Articles the 'backward class' in the context of these Articles has been defined identically. [834-E, F]

Janki Prasad and Parimoo & Ors. etc. etc. v. State of Jammu & Kashmir, [1973] 3 S.C.R. 236 and M.R.Ba/aji & Ors. v. State of Mysore, c [1963] Supp. 1 S.C.R. 439, referred to.

8. Articles 15(4) and 16(4) of Constitution in juxtaposition ·enacted in consecutive years • use markedly different phraseology, well established canons of interpretation dictate that such meanings should be assigned to the words as are indicated by the difference in phraseology. Article 16(4) D has different purpose than Article 15(4). The subject matter of Article 16(4) is the service under the State. [834-G, H; 835-A]

9. The expression 'backward' in the context of Article 16(4) is entire- ly different than the expression 'socially and educationally backward class' E in Article 15(41. [835-8]

10. Under Article 16(4) the backward class has to be culled out from amongst the classes which are not adequately represented in the State services. Any species of backwardness is relevant in the context of Article 16(4). By contrast, any special provision to be made under Article 15(4) • F e.g. grants out of the publie exchequer · can only be made for 'socially and educationally backward classes'. [835-B, CJ

11. Whal is to be identified under Artice 16(4) is not the "backward class" but a •class of citizens' which is inadequately represented in the G State-services. On the other hand it is the 'backward class' which is to be identified under Article 15(4). When the two classes to be identified in the t\l'o articles are different the question of giving them the same meaning does not arise. [835-C]

12. The expression 'backward class of citizens' under Article 16(4) H

518 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A does not mean the same thing as the expression 'any socially and educa- tionally backward classes of citizens' in Article 15(4). The judgments of this Court wherein it is assumed that the two expressions in Articles IS( 4) and 16(4) mean the same thing do not lay down correct law and are overruled to such extent. [837-B]

B Constituent Assembly Debates, Vol. 7 (1948-49) p. 684 to 702, referred to.

13. Article 16(4) was enacted with the sole purpose of giving repre- sentation to the classes of citizen who are not adequately represented therein. The sine qua non for pro,·iding reservation is the inadequate c representation of the class concerned in the State services. [837-H; 838-A]

14. The reservation under Article 16(4) is not meant for backward classes but for backward sections of the classes which are not adequately represented in the State-services. There may be a class which is inade- D quately represented in the State-services and it may be backward as a whole, like the Scheduled Castes and the Scheduled Tribes. Such a class as a whole is eligible for the reserve posts. [840-F, G]

15. To make every word of Article 16(4) meaningful and workable the said expression can only be read in relation to 'class of citizens'. (841-F] E

16. The condition precedent for a class to get benefit under Article 16(4) is not its bacl<W"drdness but its inadequacy in State-services. Once inadequacy is established and the classes on that test are identified then the backward sections of those classes become eligible to the benefit of reservation. [842-D] F

17. Once a class which is inadequately represented, is identified it is only the backward section of that class which is eligible for job reserva- tions. Backward section can be culled out by adopting a means test, or on the basis of social, educational or economic backwardness. Once the classes are identified there can be no difficulty for the State to find out the backwardness. Once the classes are identified there can be no difficulty for the State to find out the backWard·parts of those elasses. [842-E, F]

18. The framers of the Constitution, with secularism, egalitarianism, integrity and unity as their avowed objects, could not have permitted horizontal division of the country into backward and non-backward for

INDRA SAWHNEYv. U.O.l. 519 the sake of job-reservations. (842-G, HJ A

19. Article 16(4) permits reservation of appointmen!Jposts in favour of classes of citizens which in the opinion of the State are not adequately represented in the services under the State. Once such classes are iden- tified then the reserve posts are offered to the backward sections of those classes. [843-AJ B

20. Job-reservations as a dole, has been the vote-catching platter. Neither the job-reservations nor the reservation of seats in the education- al institutions are of material help. Unless illiteracy and poverty are removed, the backward classes cannot be benefited by the reservations C alone. (843-B, CJ

21. An individual citizen's right guaranted under Article 16(1) can only be curtailed by providing reservations for backward class and not for backward individuals. The promotional posts are not offered to the back- ward class. Only the individuals are benefited. (846-H; 847-AJ D

The General Manager, Southern Railway v. Rangachari, [1962J 2 SCR. 586, disagreed with.

State of Punjab v. Hirata/ & Ors., [1971J 3 SCR 267 and Akhil Bharatiya Soshit Karamchal' Sangh (Railway) v. Union of India & Ors .. E [1981J 2 SCR 185, referred to.

22. The object, context and the plain language of Article 16(4) made it clear that the job-reservation can be done only in the direct recruitment and not when the higher posts are filled by way of promotion. (847-A] F

23. Promotion is an incident of service which comes after appointment. Appointment simpliciter means initial appointment to a service. 1"847-BJ

24. Constitution oflndia aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally G backward. IC members of backward classes can maintain minimum neces* sary requirement of administrative efficiency not only representation but also preference in the shape of reservation may be given to the1n to achieve the goal of equality enshrined under the Constitution. Article 16( 4) is a special provision for resen·ation of appointments and posts for them in Government services to secure their adequate representati11n. 1'he entry of H

520 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A backward class candidates to the State services through an easier ladder is, therefore, within the concept of equality. [848-B, CJ

25. Article 16(4) permits reservation of appointments or posts in favour of any backward class of citizens only at the initial stage of entry into the State services. Article 16(4) does not permit reservation either to B the selection posts or in any other manner in the process of promotion.

26. Article 16(4) is another facet of Article 16(1). It exclusively provides for reservation which is one of the forms of classification.Article 16(4) being a special provision regarding reservation it completely takes away such classification from the purview of Article 16(1). Thus the State power to c provide job reservations is wholly exhausted under Article 16(4). No reserva- tion of any kind permissible under Article 16(1). Article 16(4) completely overrides Article 16(1) in the matter of job-reservations. [849-D, E]

27. Article 16(4) thus exclusively deals with reservations and it cannot be invoked for any other form of classification. Article 16(1), however, permits protective discrimination, short of reservation, in the matter relating to employment in the State-services. [849-E, F]

28. The protective discrimination in the shape of job-reservations has to be programmed in such a manner that the most deserving section of the backward class is benefited. Means-test ensures such a result. The process of identifying backward class cannot be perfected to the extent that every member of the said class is equally backward. There are bound to be disparities in the class itself. Some of the members of the class may have individually crossed the barriers of backwardness but while identify- ing the class they may have come within the collectivity. [850-F) F

29. Economic ceiling to cut off the backward class for the purpose of job-reservations is necessary to benefit the needy-sections of the class means test is imperative to skim-off the affiuent sections of the backward classes. [851-CJ G

30. In the context of Article 16(4) the economic criterion is essential- ly relevant. [852-C]

31. Poverty has a direct nexus to social backwardness. It is an essential and dominant characteristic of poverty. A rich belonging to backward caste - H depending upon his disposition - may be or may not be socially backward, but

INDRA SAWHNEY v. U.0.l. 521 a poor Brahmin struggling for his livelihood invariably sufteres from social backwardness. The reality of present-day life is that the economic standards confer social status on individuals. (852-D, EJ

32. Executive Instructions can be issued only when there are no statutory provisions on the subject. Executive Instructions can also be issued to supplement the statutory provisions when those provisions are silent on the subject of reservations. (853-G, HJ

Per P.B. Sawant, J.

1. The inequalities in Indian society are borne in homes and sus- tained through every µiedium of social .advancement. Inhuman habita- c tions, limited and crippling ·social intercourse, low-grade educational institutions and degrading occupations perpetuate the inequities in myriad ways. Those who are fortunate to make their escape from these all-pervasive dragnets by managing to attain at least the minimum of ... attainments in spite of the paralysing effects of the debilitating social D environment, have to compete with others to cross the threshold of their backwardness. (866-B, CJ

Pandit Nehru: "Discovery of India'; "Dr. ,4-mbedkar": By Dr. Dhanan- jay Keer; The Hindu dated 8.10.1990, referred to. E Oliver Brown et. al. v. Board of Education of Topeka et. al., 347 US 483 = 98 L Ed. 873; Spottswood Thomas Bolling et. al. v. C. Melvin Sharpe et. al. 347 US 497 = 98 I Ed 884; Marco Defunis et. al. v. Charles Odegaard, 416 US 312 =40 L Ed 2d 164; Regents of the University of California v.Allan Bakke, 438 US 265=57 L Ed 20 7, 50; H. Earl Fullilove et. al. v. Philip F

' K/utznick, 448 US 448 = 65 L Ed 2d 902 and Metro Broadcasting Inc. v. Federal Communications Commission, 111 L Ed 2d 445, referred to.

2. Article 14 which guarantees equality before law would by itself, without any other provision in the Constitution, be enough to validate such equalising measure~. The founders of the Constitution, however, G thought it advisable to incorporate another provision, viz., Article 16 specifically providing for equality of opportunity in matters of public employment. Further they emphasised in clause (4) thereof that for equalising the employment opportunities in the services under the State, the State may adopt positive measures for re~ervation of appointments or H

522 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A posts in favour of any backward class or citizens which in the opinion of the State, is not adequately represented in such services. [870-E-G]

3. The trinity of the goals of the Constitution viz., socialism, secularism and democracy cannot be realised unless all sections of the • society participate in the State power equally, irrespective of their caste, B community, race, religion and sex and all discriminations in the sharing of the State power made on those grounds are eliminated by positive measures. [871-D)

4. The claims of other backward class of citizens and weaker sec- C lions must also be considered consistently with the maintenance of the efficiency. For whomsoever, therefore, reservation is made, the efficiency of administration is not to be sacrificed, whatever the efficiency may mean. That is the mandate of the Constitution itself. [871-G]

5. The various provisions in the Constitution relating to reservation, D therefore, acknowledge that reservation is an integral part or the principle of equality where inequalities exist. Further they accept the reality of inequalities and of the existence of unequal social groups in the Indian society. They are described variously as 'socially and educationally back- ward classes' [Article 15(4) and Article 340), 'backward class' [Article E 16(4)] and 'weaker sections of the people' (Article 46). The provisions or the Constitution also direct that the unequal representation in the ser- vices be remedied by taking measures aimed at providing emplo)'lllent to the discriminated class, by whatever dijlerent expressions the said class is described. How does one identify the discriminated class is a question of methodology. But once it is identified, the fact that it happens to be a F caste, race, or occupational group, is irrelevant. [871-H; 872-A-C]

6. Social integration cannot be achieved without giving equal status to all. The administration of the country cannot also be carried on impar- tially and efficiently without the representation in it of all the social groups and interests, and without the aid and assistance of all the views and social experiences. Neither democracy nor unity will become real, unless all sections of the society have an equal and effective voice in the affairs and the governance of the country. [873-C, D

7. Culture is a cumulative product of economic and educational attainments leading to social accomplishment and refinement of mind,

INDRA SAWHNEY v. U.0.¹. 523 morals and taste. Employment and particularly the governmental employ- A ment promotes economic and social advancement which in turn also leads to educational adv'ancement of the group. Though it is true that economic and educational advancement is not necessarily accompanied by cultural growth. it is also equally true that without them. cultural advancement is difficult. Employment is thus an important aid for cultural growth. To achieve total unity and integration of_the nation, reservations in employment B are, therefore, imperative in the present state of our society. (873-F -HJ

8. Article 16(4) which provides for reservations, also at the same time prescribed their limits and conditions. In the first place~ the reserva- tions are not to be kept in favour of every backward class of citizens. It is only that backward class of citizens which, in the opinion of that State, is c not adequately represented in the services under the State, which is entitled to the benefit of the reservations. Secondly, and this follows from the first, even that backward class of citizens would cease to be the beneficary of the reservation policy, the moment the State comes to the conclusion that it is adequately represented in the services. (874-A-C] D

9. Clausc(4) of Article 16 is not an exception to clause(l) thereof, but is merely an en1phatic "''ay of stating what is implicit in clause(l). [876-H; 877-A] E State of Keraia & A11r. v. N.M. Thomas & Ors., [1976] I SCR 906, referred to.

T. Devadasan v. Unio11 (}{India & A11r.. [1964] 4 SCR 680, disagreed with. F

10. Equality postulates not merely legal equality hut also real equality. The equality of opportunity has to be distinguished from the equality of results. The various provisions of our Constitution and particularly those of Articles 38, 46, 335, 338 and 340 together with the Preamble, show that the right to equality enshrined in our Constitution is not mefely a formal right G or a vacuous <leclaratit1n. It is a positive right, and the State is under an obligation to undertake measures to make it real and en·ectual. A more formal declaration of the right would not make unequals equal. To enable all to compete wit.It each other on equal plane, it is necessary to take positive measures to equip the disadvantaged and the handicapped to bring them to thr level of the fortunate advantaged. [877-A-C) H

524 SuPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A ~1. So far as 'backwarcf classes' are concerned, the reservations for them can only be made under clause(4) since they have been taken out from the classes for which reservation can be made under Article 16(1). Hence, Article 16(4) is exhaustive of all the reservations that can be made for the backward classees as. such, but is not exhaustive of reservations that can be made for classes other than backward classes undec Article B 16(1). So also, no reservation can be made under Article 16(4) for classes other than 'backward classes' implicit in that Article. They have to look for their reservations, to Article 16(1). [879-C, DJ

12. There is no doubt that the expression '.backward class of C citizens'; is wider and includes in it socially and educationally backward classes of citizens and 'Scheduled ('.,astes and Scheduled Tribes.' [882-H)

The State of Madras v. Srimathi Champakam Dorairajan etc., [1951) S.C.R. 525; M.R: Balaji & Ors. v. State of Mysore, [1963) Supp.1SCR439; Janki Prasad Parimoo & Ors. etc. etc. v. State of J.&K. & Ors., [1973] 3 SCR D 236; KC. Vasanth Kumar&Anr. v. State of Kamataka, [1985] Supp. 1 SCR 352; State of Andhra Pradesh & Anr. v. P. Sagar, [1968] 3 SCR 595; State of Andhra Pradesh & Ors. v. US. V: Bairam etc., [1972) 3 SCR 247 and Kumari KS. Jayasree and Anr. v. State of Kera/a & Anr., [1977] l SCR 194 at 197-198, referred to. E

13. The expression 'backward class of citizens' has been used in Article 16( 4) in a particular context taking into consideration the social history or this country. The expression is used to denote thosf, classes in the society which could not advanced socially and educationally because of the taboos and handicaps created by the society in the past or on account of geographical or other similar factors. [885-A, BJ

Lok Sabha Debates, 16.5.1951 - Column 1821, referred to.

14. 'Class' is a wide term. 'Caste' is only a species of the 'class'. A caste has all the attributes or a class and can form a separate class. If, therefore, a caste is also a backward class within the meaning of Article 16(4), there is nothing in the said Article or in any other provision of the Constitution, to prevent the conferment of the special benefits under that Article on the said caste. When the members of the entire caste are backward and on the account are treated as a backward class, the expression 'backward caste' and 'back- H ward class' become synonymous. [887·G: 888-E: 890-B]

INDRA SAWHNEY 1·. IJ.0.¹. 525

Shorter Oxford Dictionary; Framing of India's Constitution - Ed. B. A Shiva Rao, Vol. I pp. 768-772 and Vol. IV P. 594; 77te Cens11s Report of 1901 of The Province of Bengal; Pakisthan of Partition of India, By Dr. B.R. Ambedkar, pp. 218-220; Backward Classes Commission's Report(Kelelkar Commission Report) Paras 10,14 3 of Chapter V, referred to.

State of Madras v. Smt. Champakam Dorairajan, [1951] S.C.R. 525 = B AIR 1951 SC 226; B. Venkataramana v. 77te State of Madras & Anr., AIR 1951 SC 229; M.R. Balaji & Ors. v. State of Mysore, [1963] Supp. l SCR 439; l.R. Chitralekha & Ors. v. State of Mysore, [1964] 6 SCR 368 = AIR 1964 SC 1823; State of A.P. v. U.S. V. Bairam, [1972] 3 SCR 247; Minor P. Rajendran v. State of Madras & Ors., [1968] 2 SCR 786; State of A.P. & Anr. v. P. Sagar, [1968] 3 SCR 595; Triloki Nath & Anr. v. State of J&K. & Ors., c (1969] 1 SCR 103; Minor A. Periakarnppan etc. v. State of Tamil Nadu & Ors. etc., AIR 1971 SC 2303 = (1971] 2 SCR 430; Narayan Vasudev v. Emperor, AIR 1940 Bombay 379; Kumari K.S. Jayasree v. State of Kera/a, [1977] l SCR 194; Vasa/If Kumar v. State of Kamataka, [1985] Supp. 1 SCR 352; Regents of the University of Ca/ifomia, 438 US 265; Fullilove, 448 D US 448, referred to.

15. Article 46 enjoins upon the State to promote with special care, the educational and economic interests of the '1.veaker sections' of the people, and, in particular, of the SCs/STs, and to protect them from social injustice and all forms of exploitation. The expression 'weaker sections' of the people is obviously wider· than the expression 'backward class of citizens' in Article 16(4) which is only a part of the weaker sections. [900-G]

16. The expression 'weaker sections' of the people used in Article 46, also includes other backward classes as well, whether they are socially and educationally backward or not and whether they are adequately represented in the se_rvices or not. What is further, the expressions 'weaker section.s' of the people does not necessarily refer to a goup or a class. The expression can also take within its compass, individuals who constitute weaker sections or weaker parts of the society. This weakness may be on account of factors other than past social and educational backwardness. The backwa'rdness again may be on account of poverty alone or on account of the present impoverish- ment arising out of physical or social handicaps. The inst3nces__ of such weaker sections other than SCs/STs and socially and educationally back- ward clasSes may be varied, viz., flood - earth'quake - cyclone - fire - famine and project affected persons, war and riot torn persons, physically hand-· H

526 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A icapped persons, those without any or adequate means of' livelihood, those who live below the poverty line, slum dwellers etc. [901-B-F']

17. Article 16(4) carves out a particular class of' people and not individuals from the 'weaker sections' and the class it carves out is the one which does not have adequate representation in the services under the B State. The concept of 'weaker sections' in Article 46 has no such limitation. [901-H; 902-A]

18. Economic criterion by itself will not identify the backward clas· ses under Article 16(4). The economic backwardness of the backward C classes under Article 16(4) has to be on account of their social and educational backwardness. [903-F]

Chitra/ekha, [1964] 6 SCR 368; Parimoo, [1973] 3 SCR 236 and Vasanth Kumar, [1985] Supp. 1 SCR 352, referred to.

D 19. No reservation of posts in services under the State, based ex- clusively on economic criterion would be valid under clause (1) of Article 16 of the Constitution. [908-B]

20. Not only Article 16(4) but for that matter Article 335 also does not speak of giving proportional representation to. the backward classes and SCs/STs respectively. Article 16(4) in terms, speaks of adequate representation to the backward classes, while Article 335 speaks of the 'claims' of the members of the SCs/STs. Howevtr, it cannot be disputed that whether it is the appointments of SCs/S'fs or other backward classes, both are to be made consistently with the maintenance of the efficiency ir administration. [913-E, F]

State ofPunjab v.Hiraia/ & Ors., (1971] 3 SCR267 at 212;Fullilove, 448 US 448; Thomas, (1976] 1SCR906; Vasanth Kumar, [1985] Supp. I SCR 352; Akhil Bharatiya Soshit Karamchari Sangh, (1981] 2 SCR 185; Ba/aji, [1963] Supp. I SCR 439 andDevadasan, [1964] 4 SCR, 680, referred to. G Constitutent Assembly Debates, Vol. 7, (1948-49) pp. 701-702, referred to.

21. A mechanical approach in keeping reservations in all fields and at all levels of administration and that too at a uniform percentage is unrealisa tic. There is no reason why the authorities concerned should not apply their

INDRA SAWHNEY 1·. U.0.¹. 527 mind and evolve a realistic policy in this behalf. There are fields and levels of administration where either there may be no candidate from backward classes available or may not be available in adequate number. [914-F, GI

22. The adjustment of the reservations and their percentages, fields and grade·wise as well as from time to time, as per the availability of the candidates from the backward classes, is not only implicit in the constitu- B tional provisions but is also warranted for purposeful and effective im- plementation of the spirit of those provisions. (914-H; 915-A]

23. Education is the source of advancement of the individual in all walks of life. The teaching profession, therefore, holds a key position in societal life. It Is the quality of education received that determines and c shapes the equipment and the competitive capacity of the Individual, and lays the foundation for his career in life. It is, therefore, in the interests of all sections of the society • socially backward and forward • and of the nation as a whole, that they aim at securing and ensuring the best of education. [915-B, C] D

24. Reservations for individuals are permissible under clause (1) on a ground other than economic, provided, of course, the ground is not hit by Article 16(2). (917-B]

25. The extent of the percentage of the reservation should ht: calcu- E lated yearwise with due allowance to the operation of the rule with regard to the backlog, if any. Still better method is to regulate and calculate the appointments on the roster basis. [918-G)

CA. Rajendran v. Union of India & Ors., [1968] 1 SCR 721 at 732-733, referred to. F

26. The adequacy does not mean a mere proportionate numerical or quantitative strength. It means effective voice or share in power in run- ning the administration. Hence, the extent of reservations will ·have to be estimated with reference to the representation in different grades and G categories. [919-A, BJ

Yhe General Manager, Southern Railway v. Rangachari, (1962] 2 SCR 586, referred to.

27. Society does not remain static. The industrialisation and the H

528 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A urbanisation which necessarily followed in its wake, the advance on politi- cal, social and economic fronts made particularly after the commencement of the Constitution, the social reforms movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have alJ undoubtedly seen ~t least some individuals and families in the backward classes, B however small in number, gaining sufficient means to develop their capacities to compete with others in every field. That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birth mark. [920-B-D] c 28. A Class-IV employee's children may develop capacity to compete for Class-III posts and in that sense, he and his children may be forward compared to those in his class who have not secured even Class-IV posts. It cannot, however, be argued that on that account, he has reached the 'creamy' level. If the adequacy of representation in the services is to be evaluated in terms of qualitative and not mere quantitative repre- D sentation, which means representation hi. the higher rungs of administra- tion as well, the competitive capacity should be determined on the basis of the capacity to compete for the higher level posts also. Depending upon the facts of each case, sub-classification of the backward classes into the backward and more or most backward would be justifiable, pro•ided separate quotas art prescribed for each of them. [922-A·C; 924-F] E Balaji, [1963] Supp. 1 SCR 439 and Vasanth Kumar, [1985) Supp. 1 SCR 352, referred to.

29. Article 16(4) enables the State to make a 'provision' 'or the F reservation of appointments to the posts. The provision may be made either by an" Act of Legislature or by rule or regulation made under such Act or in the absence of both, by executive order. Executive order is no less a law under Article 13(3) which defines law to include, among other things, order, by-laws and notifications. The provisions of reservation under G Article 16(4) being relatable to the recruitment and conditions of service under the State, they are also covered by Article 309 of the Constitution. Article 309 expressly provides that until provision in that behalf is made by or under an Act of the appropriate legislature, the rules regulating the recruitment and conditions of service of persons appointed to services under the Union or a State may be regulated by rules made by the H President or the Governor as the case may be. (925-A·C]

INDRA SAWHNEY 1·. U.0.¹. 529

Balaji, [1963] Supp. I SCR 439; Ma11gal Si11gh v. Punjab State, Cha11- A digarh & Ors. AIR 55 (1%8); i'w1jal¹ wid Harya11a 306 and Comptroller & Auditor General of India & Ors. v. Mohan/a/ Mehrotra & Ors., [1992] l SCC 20, referred to.

30. Judicial scrutiny would be available (i) ihhe criterion inconsistent with ·1he provisions of Article 16 is applied for identifying the classes for whom the special or unequal benefit can be given under the said Article; (ii) if the classes who are not entitled to the said benefit are wrongly included in or excluded from the list of beneficiaries of the special provisions. In such cases, it is not either the entire exercise or the entire list which becomes invalid so long as the tests applied for identification are correct and the inclusion or exclusion is only marginal; and (iii) if the percentage offeserva- tions is either. disproportfonate or unreasonable so as to deny the equality of opportunity to the unreserved classes, and obliterates Article 16(1). Whether the percentage is unreasonable or results in the .obliteration of Article 16(1), so far as the unreserved classes are concerned, It will depend upoit the facts and circumstances of each case, and no hard and fast rule of general application with regard to the percentage can be laid down for all the ·regions and for all times. [928-G, H; 929-A, BJ

Balaji, [1963] Supp. 13 SCR 439; 11wmas, [1976] 1 SCR 906; Vasanth Kumar,. [1985] Sup. I SCR 352; P. Sagar, [1968] 3 SCR 595; A. Peeriakamp- pa11, [1971]2 SCR430; P. Sukhadev& Ors. v. 11ie Government ofA:P., [1966] E 1 Andhra W.R. 294 and Hirata/, [1971] 3 SCR 267, referred to.

31. l'he Court, does not_ ~ecide questions which do not arise. The t(adition is both wise and advisable. 'fhere is a long line of decisious of this Court on the point. [928-D, El F The Central Bank of India v. 11ieir .Workmen, [1960] l SCR 200 and Harshalan Venna· v. Union of India & Anr., AIR 1987 SC 1969; re:erred to.

32 .. It. is foolhardy to ignore I.he consequences to the administration when juniors supersede seniors although the seniors are as much or even G more competent than the juniors. Whe.n reservations are kept in promotion, the inevitable consequence is the phenomenon of juniors, however low in the seniority list; stealing a march over their seniors to the promotional post. When further reservation.s are kept at eyery premotional level, the.juniors not only steal march over their seniors in the same grade but also over their · superiors at more than one higher level. This has been witnessed and is being H

530 SUPREME COURT REPORTS f1992J SUPP. 2 S.C.R.

A witnessed frequently wherever reservations are kept in promotions. It is naive to expect that in such circumstances those who are superseded, 1i~1f they are many) can work with equanimity and with the same devotion to and interest in work as they did before. (931-F-HJ

The R'angachan', (1962] 2 SCR 586, referred to. B

33. The expression 'consistently with the maintenance of efficiency of administration' used in Article 335 is related not only to the qualifications of those who are appointed, ii covers all consequences lo the eri'iciency of administration on account or such appointments. (932-F] c Per R.M. Sahai, J.

1. Judicial Review has come to be one of the ways of obliging government to control itself. A reservation for a class which is not back- ward would be liable to be struck down. Similarly, if the class is found to be backward but it is adequately represented the power cannot be exer- cised. Therefore, the exercise of power must precede the determination of these aspects each of which is mandatory. Since the exercise of power depen,ds on existence of the two, its determination too must satisfy the basic requirement of being in accordance with Constitution, its belief and thought. Any determination of backward class in historical perspective may be legally valid and constitutionally permissible. But Ir In determina- tion or identification of the backward class any constitutional provision is violated or it is contrary to basic feature of Constitution then the action is rendered vulnerable. (948-D, E]

Bakerv. Carr, 369 US 186; Davis v. Bandemer, 54 USLW 4898 [1986]: F Kehar Singh & Anr. v. Union of India & Anr., (1989] 1 SCC 204; Kihoto Holloh on v. Zachilhu, (1992] 1 SCR309; State ofRajasthan & Ors. v. Union of India, (1977] 3 SCC 592; University of California Regents v. Allan Bakke, 57 LEd 2 d 750; H. Earl Fullilove v. Philip M. Klutznick, 6SL Ed 2d 902; Metro Broadcasting Inc. v. Federal Communications Commission, SB LW 5053 and G Genera/Manager, SouthemRailwayv.Rangachari, [19fi²] 2SCRS86,referred to.

Samuel Krislov : 'The Supreme Coult in the Political Process,' p. 66; C. Herman Pritchett: "The Amen'can Constitution'; p. 154 (Quoted in. "The Judicial Review of Legislative Acts": By Dr. Chakradhar Jba, p. 355); H Charles Gordon Post: "The Supreme Court Questions" (Quoted in "The

INDRA SAWHNEY v. U.0.¹. 531

Judicial Review of Legislative Acts": By Dr. Chakradhar Jha, p. 351; Gran- A ville Austin's "The Indian Constitution - Cornerstone of a Nation:; Tagore Law Lecture - From Marshall to Mukherjea - "Studies in American and Indian Constitution Law" : By William 0. Douglas, P .38; Wade: "Ad- ministrative Law"; "The Court and the Constitution": By A. Cox, p. 372; Federalist No. 51 1Extracted in ·~merican Constitutional Law": By Alpheus T. Mason/D.G. Stephenson, Jr., referred to. B

2. Article 16(1) and (4) operate in same field. Both are directed towards achieving equality of opportunity in services under the State. One is broader in sweep and expansive in reach. Other is limited in approach and narrow in applicability. Former applies to all citizens whereas latter is available to 'any' class of backward citizens. Use of words 'all' in 16(1) and c 'any' in 16(4) read together indicate that they are part of same scheme. The one is substantive equality and other is protective equality. Article 16{1) is a fundamental right ofa citizen whereas 16(4) is an obligation of the State. The former is enforceable in a court oflaw, whereas lite latter is 'not constitution- al compulsion' but an enabling provision. (951-C, DJ D

Plessy v.· Ferguson, 163 US 537(1896); The State of Madras v. Shrimathi Champakam Dorairajan, (1951] SCR 525: K.C. Vasanth Kumar v. State of Kamataka, AIR 1985 SC 1495 at 1529, referred to.

Herbert J. Gans · "The New Egalitarianism" - (The inequality and E Justice by Rainwater); "The Equal Protection of the Law": P.G. Polyviou, p. 302, referred to.

3. Article 16(4) is a complete code for reservation for backward class of citizens as it not only provides for exercise of power but also lays down the circumstances, in which the power can be exercised, and the purpose and extent of its exercise. One is mandatory and operates automatically whereas the other comes into play on identification of backward class of citizens and their inadequate representation. (951-F, G]

State of Kera/a & Ors. v. N.M. Thomas., (1976] 1 SCR 906; 939, 956, G 960, 969 and 978 and B. Venkataramanna ·v. The State of Madras & Anr., AIR 1951 SC 229, referred to.

"Reservation Policy & Practice in India" : By Anirudh Prasad, p. 318; B. Sivaramayya: H

5.12 SlJl'RloMI', COURT JU'l'OKIS IJ992J SUPP, 2 S,C,R,

A "Jnequaiiries and the Law'',' "Liberty to Equality": Ry Harold Laski(A (;rammar of Politics~Published in "Inequality and Justice": By Rainwater, referred to. ·

4. The expression 'any backward class of citizens' is capable of being l'onstrued as class of backwards, backward among any class of citizens, backward class etc. depending on for whom the reservation is being made and why. [956-E I

5. Backward may be relative such as professional or occupational backwardness or it may be economic, social, educational or it may be racial suth as in America or caste based as in Hindu social system or it may be natural such as physically handicapped or even of sex. Article 16 of the Constitution deals with equality of opportunity in services under the State. The meaning of the word 'backward' therefore, has to be understood "ith reference to opportunity in public employment. Since this, is a con- D stitutional issue it cannot be resolved by cliches founded on fictional mythological stories of misdirected philosophies or odious comparisons without any regard to social and economic conditions but on pragmatic, purposi"e and rnlue oriented approach to the Constitution as it is the , fundamental law whkh requires careful navigation by political set up of _ the country and any deflection or deviation disturbing or threatening the E social balance has to be restored, as far as possible, by the judiciary. Rack"'ardness in such a vast country with divergent religions, cultures, languages, hahils, sot:ial and economic conditions arising out of historical reasons, geographical locations, feudal system, rigidity of caste is bound to have regional navour. [956-F-H; 957-A] F Plcssy v. Ferguson, 167 US 537 [1896]; Brown v. Director Board of Educa.ion, 347 US 483 [1954]; Brown v. Director Board of Education, 349 US 294 (1955]; Green v. Coumry School Board, 391 US 430 (1968]; Swann v. Charlotte, Mecklenburg Board of Education, 402 USl [1970]; CA, G Rajendran v. Union of India & Ors,, [1968] l SCR 721; Janaki Prasad Parimoo v. State of J & K, (1973] 3 SCR 236; State of Kera/a & Ors, v.N,M Thomas & Ors,, [1976] l SCR 906; Karamchari Sangh v. Union of India, [1981] 2 SCR 185; Trilokinath Ttkku v. State of J,&K., [1967] 2 SCR Z65; Tri!okinath & Ors, v. State of J,& K, [1969] I SCR 103; A. Peeriakarnppan, etc v. State of Tamil Nadu, [1971] 2 SCR 430; MR, Ba/aji & Ors, v. State H of Mysore, [1963] Supp. l SCR 439; Heggade Janardhan Subharya v. Stale

INDRA SAWHNEY v. U.0.¹. 533 of Mysore, [1963) Supp. l SCR 475; P. Rajndran v. State of Madras, [1968] A 2 SCR 786; State of A.P. & Ors. v. P. Sagar, [1968] 3 SCR 595; State of A.P. v. U.S. V. Balaram, [1972) 3 SCR 247; State of U.P. v. Pradeep Tandon, [1975] 2 SCR 761; R. Chitralekha v. State of Kamataka, [1964] 6 SCR 368; Smt. KS. Jayasree v. State of Kera/a, [1977] I SCR 194 and KC. Vasanth Kumar v. State of Kamataka, AIR 1985 SC 1495, referred to. B Constituent Assembly Debates,· Vol. VII p. 701 (1948-49); 'Equality, Justice and Rectification": By Derek L. Phillips, P-289-290; Glen M. and Johnson Sipra Bose: 'Social Mobility Among Untouchables"- In Cohesion and Conflict in Modern India, referred to.

6. The word 'class' cannot and was not used as caste as it was c constitutionally considered to he destructive of secularism. In our country caste system is peculiar to Hindus. It is unknolln to Mulsims, Christians, Sikhs, Buddhists and Jains. The Constitution was framed not for Hindus only. ?rovision was made for a society hetrogreneous in character but secular in outlook. It was a 'compromistic formula', a positive effort to equalise one and all. [958-D, E]

Oxford Dictionary: Legal Thesaums: William C. Burien; Webster Dic- tionary, referred to.

1. 'Class' was used in a wider sense and not in the restricted sense of caste. [959-B]

8. When the Constitution was framed the founding fathers were aware of the meaning and understanding of the word 'backward'. They were also aware that hereinafter members of all co1nmunity .were to be treated alike. The State was made responsible, therefore, for 'any' back- F ward class of citizens coming from whatever community, caste or religions . State, therefore, cannot discriminate, while identifying backward class on race, religion, caste or birth. [961-E]

"Competing Equalities": By Marc Galanter: "Rescn•ation Policy and G Practice in India: By Dr. Anirudh Prasad; Sturges v. Crowninshield (1819) Quoted in Encyclopaedia of American ConstiUttion, Vol. I: By Levy, Karst & Mahoney, referred to.

9. Caste has never been accepted by this Court as exclusive or sole criteria for determination or identification of backward class. [964-F] I-I

534 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A /.C .Galaknath v. State of Punjab, AIR 1967 SC 1643; Oliver Brown v. Board of Educa~on, 347 US 483; Venkataramana, AIR 1951 SC 229; Bakke, 438 US 265 [1978); Plessy v. Ferguson, 163 US 537 (1896); Champakam, (1951) SCR 525; Venkataramana, AIR 1951 SC 229; Balaji, (1963) Supp. 1 SCR 439; Chitralekha, (1964) 6 SCR 368; Rajendran, [1968) 2 SCR 786; B Sagar, (1968) 3 SCR 595; Peeriakaruppan, (1971) 2 SCR 430; Bairam, (1972) 3 SCR 247; Soshit Karamchari, (1981) 2 SCR 185 and Jayasree, (1977) 1 SCR 194, referred to.

A. Cox: The Coult and The Constitution, The New Encyclopaedia Britanica, Micropaedia, Vol. 10. p. 919; "The Caste System in India" By: Dr. C Rajendra Pandey; Pradeep Kumar Bose: 'Mobility & Conflict' - published in Caste, ConRict and Reservation; 'Should the caste be the basis for recognising the backwardness" • l.P. Desai (Extracted from Caste, Conftict and Reservation), referred to.

10. A State is not bound to grant reservation to every backward D class. In one State or at one place or at one point of time it may be historical and social backwardness or ~eograpbical and habitational backwardness and at another it may be social and educational or back- wardness arising out of natural cause. (966-F-G)

E 11. Use of expression, 'nothing in this Article shall prevent Parliament' in Article 16(4) cannot be read as empowering the State to make reservation under Article 16(4) on race, religion or caste. It would result in regenerating the communal representatioin in senrices infused by Britishers by different orders issued rrom 1924 to 1946. (974-F-H; 975-A]

F 12. In earlier decision rendered by the Court till sixties Article 16(4) was held to be exception to Articles 16(1). But from 1976 onwards it has been understood differently. Today Articles 16(1) and 16(4) are understood as part of one and same scheme directed towards promoting equality. There- fore what is destructive of equality for Article 16(1) would apply equally to G Article 16(4). The non-obstante clause was to take out absolutism of Article 16(1) and not to destroy the negatism of Article 16(2). [974-H; 975-A)

Javed Niaz Beg& Anr. v. Union of India & Anr., AIR 1981 SC 794 and State of Rajasthan v. Pradip Singh, AIR 1960 SC 1208, referred to.

H 13. 'Backward' used in Article 16(4) is wider than socially and educa-

JNDRA SAWHNEY v. U.0.¹. 535 tionally used in Article 15( 4) and 'weaker sections' used in Article 46. SC/ST A are covered in either expression. But same cannot be said for others. Backward, cannot be defined as was wisely, done by the Constitution makers. It has to emerge as a result of interaction of social and economic forces. It cannot be static. [976-H; 977-A]

14. A Commission appointed under Article 340 by the President is not B to identify Hindu backwards only but the backward class within the territory or India which includes Hindu, Muslim, Sikh or Christian etc. born and residing in India within meaning of Articles 5 of the Constitution. The expression is not only backward class but backward class of citizens. And citizen means all those who are mentioned in Articles 5 and 10 of the Constitution. [977-E, Fl c

15. Existence of caste in the past and present, its continuance in future cannot be denied but insistence that since ii is being practised or observed for political purpose even though unfortunately it should be the basis for identification of backwardness in services is not only robing the Constitution D of its fresh look it promised and guaranteed but would result in perpetuating a system under ugly weight of which the society had bent earlier. [980-E, Fl

"Equal Protection of the Laws": By Polyvious G. Polyviou; Seervai: Constitutional Law of India. p. 897, referred to. E

16. Subjective perception of one's position in the 'v~rna' system varies and changes from time to time, place to place and context to context. For instance, the Patidars of Gujarat were considered sudras a few decades age, but now they call themselves vaishyas, and are acknow- ledged as such by others. It is significant that they are not have-nots. Similar is the case of Vokkaligas and Lingayats of Karnataka, Reddies F and Kammas of Andhra Pradesh, Marathas of Maharashtra and to some extent Yadavas of Bihar. Yet these castes or groups have been identified as backward class in their State. Whether such inclusion on political, economic and social condition is justified in State list or ~ot but inclusion of a group or collectivity ip list of socially and educationally backward G classes, which is a term narrower and different than backward class for services under Union without proper identification only on State list may not be valid. For services under the Union, therefore, some principle may have to be evolved which may be universal application to members of every community and which may be adopted by States, as well, after adjusting it with prevalent local conditions. [982-D-G] H

516 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A A. Cox: TllP. Court and the Constitution; "Econo1nic and Political Week£v'~ Vol. 26 (1991) p. 601 - "The Caste System in India": By Rajendra Pandey, Pages 8,45; Encyclopaedia of Social Sciences Vol. 3; "Equality" By R.H. Tawney, referred to.

Balaji, [1963] Supp. 1 SCR 439, referred to. B

17. The Mandal Commission recommended occupation identifica- tion for non-Hindus if the community was traditionally known to carry on the hereditary occupation of their counterpart amongst Hindus and in- cluded in the test of OBS. TI1e Commission thus recognised occupational divider-among Hindus. If occupation amongst Hindus can be basis for identification of backwardness among non-Hindus then why cannot it furnish basis for identification amongst Hindus itse.lf. [985-F, G]

18. Occupation should furnish the starting point of determination of backward ciass. And if in ultimate analysis any Hindu ca~tf: is found to be occupationally, socially. educationally and eronomirally backward it should be regarded as eligible for benefit unde: Article 16(4) because it would be within constitutional sanction. [988-E]

Re Hatschek's Patents ex pzeienne.x, [1909] 2 Ch. On. 68, referred to.

E 19. Reservation corelafl'd with population was not accepted even by the Cnnstituent Assembly. On plain construf.tion inadequacy of repre~ sentation cannot be tht measure of resfn'ation. That is creative of inris- diction only. [992-B]

Balaji, [1963] Supp. I SCR 439; Devadasan, [1964] 4 SCR 680; F ChitraGhosh, AIR 1970 SC 351, Chancltala, AIR 1971 SC 1762; Subhashini, AIR 1966 Mysore 40; 77wmas, [1.976] 1 SCR 906; Jagdish Roi v. State of Haryana. AIR 1977 Haryana 56; State of Kamataka v. Jacob Mathew, ILR (1964) 2 Kerala 53; Chhotey Lal v. State of U.P., AIR 1979 All. 135; Slaughter House Cases, (16 Wall) 36=21 L Ed. 394 [1875]; Griffin v. G !i/io11ois, 351 US 12 [1956]; Harper v. Virginia Board of Education, 383 US M³ [1966); Soshit Karamchari, [1981] 2 SCR 185 and Vasanth Kw,,~r, [1985] Supp. I SCR 352, refrrred to.

20. Any construction of Article 16(4) cannot he divorced ~ithout taking into ac<'onnt Artirlt' 16(1 ). Elfuality in srrvi<·rs has hf'en balant.•ed by provid- H ing e(1ual opport.unit,y to every citizen at the same thne ernpowering the State

INDRA S!\WIINEY r. lU.J.L 537 to take protective measure for the backward class of citizens \vho are not adequately represented. This balancing of equality cannot be lost sight of while interpreting these provisions. Since there is no clear-indication either way the role of the courts hecome both important an~ reSp!lnsiblc, by interpreting the provision reasonably and with common sense so as to carry out the objective of its enactment. And the purpose was to enable the backward class of citizens to share the power if they were riot adtquately represented but not to grant proportional representation, a typical British concept rejected by our Founding Fathers. [993-G, H; 994-A, BJ

21. Equality has various shades .. Its understanding and application have been shaped by social, economic and political conditions prevailing in the society. [994-C] c

22. Jn our constitutional scheme the classification in ~atters of employment or appointment in the services has been ~one constitutioilally. From the entire class of all citizens any backward class has been classified for beneficial or benign treatment. The Legislature.or executh-·e therefore cannot transgress it. Since the Constitution treats all citizen~ alike for purposes of employment except those who fall under Article 16(4) any further classification or grouping for reservation \\'Otdd he constitutionaJly invalid. No legislative exercise can transcendent the constitutional barrier.. For valid ciassification legislature or 1!xecutive measures must be co-related with legislative purpose or objective. Once the Constitution itself unfolded the purpose of achieving the goal of equality by permitting reservation for backward classes only, any further reservation being beyond constitutional purpose would. be impermissible and per se in valid. [994-F -G; 995-A)

Dhirendra Kumar Manda/ v. The Supdt. & Remembrancer of Legal Affairs to the Govt. of West Bengal & Anr., [1955] I SCR 224, referred to. · F

"The Equal Protection of the Laws'~ 37 California Rev. 341, referred to.

23. Principle of reasonable classification for purposes of creating another class or planting one class in another woi1ld he constitutionally G infirm. [995-HJ

24. Difference between reservation and preferential treatment is that in a gro~1p or class or collectivity is separately proYided for and the .co1npeti~ tion is amongst them only. \Vhereas in preferential treatment. the collectivity is part of the same group hut it is permitted Some weightage due to sor.ial, H

538 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A economic or any justifiable reason. For purposes of achieving equality by result Article 16 creates two compartments, one general and the other reserved and then both are paired together. But preference is available in the same compartment. Validity of one depends on constitutional sauetion whereas the second has to stand on test of reasonableness. For instance the reservation of backward class cannot be assailed as being violative of B constitutional i:uarantee whereas preferential treatment can be upheld only lfit is reasonable with the nexus it seeks to achieve. Article 16 unlike Article 14 is a positive right or equal opportunity. [995-H; 996·A·C)

25. Promotion is the most sensitive branch of service jurisprudence. C Althoup its purpose is manifold but the principle objective Is, to secure the best possible incumbents for the higher positions while maintaining the morals of the whole organisation as it not only, serves the public interest but is founded on the inherent principle that the higher one moves, the greater is the responsibility he assumes. [997·H; 998-A)

D 26. Manner and method of promotion is usually linked with the nature of posts, iflt is selection or non-selection. [998-BJ

"Introduction to the Study of Public Administration": Leonard D. White, Page 380, referred to.

Rangachari, [1962) 2 SCR 586; Soshit Karamchari, [1981) 2 SCR 185; E Hira/a/, [1971) 3 SCR267 andJagannathan, [1986) 2SCR17, referred to.

27. After entry in service the class is one that of employees. lfthe social scar of backwardness is carried even, thereafter the entire object of equalisa· lion stands frustrated. No further classification amongst employees would F be justified as is not done amongst students. [998-E, F]

Thomas, [1976) 1 SCR 906; Bakke, 438 US 265 (1978), referred to.

28.Coostltutlonal sanction is to reserve for backward class of persons. That Is class or group Interest has been preferred over individual. But G promotion from a class or group of employees Is not promoting a group or class but an Individual. It is one against other. [999-E)

29. Art. 16(4) by Its nature, and purpose cannot be applicable to economically backward, except probably when a proper methodology is worked out to determine Inadequacy of representation of such class. H [1000-DJ

INDRA Sr\ WHNEY v. U.0.¹. 519

30. Reservation for backward classes seeks to achieve the social A purpose of sharing in services which had been monopolised by few of the forward classes. To bridge the gap, thus, created the affirmative actions have been upheld as the social and educational difference between the two classes furnished reasonable basis for classification. Sarne cannot be said for rich and poor. Indigence cannot be rational basis for classification for public employment. (1000-G] B

Jawaharlal Nehru, Quoted from Dorothy Norman ed. "Nehrn", referred to.

Griffin, 351US12 (1956]; Harper, 383 US 663 (1966], referred to. C

31. Poverty may have relevance and may furnish valid justification while dealing with social and economic measure. Any legislation or executive measure undertaken to remove disparity in wealth cannot be suspected but a classification based on economic conditions for purposes of Article 16(1) would be violative of equality doctrine. [1001-D] D

32. While reserving posts for backward classes, the departments should make a condition precedent that every condidate must disclose the annual income of the parents beyond which one could not be considered to be backward. What should be that limit can be determined by the appropriate State. Income apart provision should be made that wards of those backward classes of persons who have achieved a particular status in society either politica! or social or economic or if their parents are in higher services than such individuals should be precluded to avoid mo- nopolisation by the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated. And once a group or collec- F tivity itself is found to have achieved the constitutional objective then it should be excluded from the list of backward class. (1001-E-H]

33. Finality is necessary not only for courts or tribunal but for the guidance of the affirmative action ameliorative or preferential by the Legis- G lature or the Executive. [1003-G]

34. The exercise of power to reserve is coupled with duty to deter- mine backward class of citizens and if they were adequately represented. If the Government failed to discharge its duty then the exercise of power stands vitiated. (1004-F) H

540 SUPRFME COURT REPORTS [1992] SUPP. 2 S.C.R.

A ORfGINAL JURISDICTION: Writ Petition (Civil) No. 930of1990.

(~nder Article 32 of the Constitution Of India).

WfTH

B (With W.P. (C) Nos. 97/91, 948190, 966/90, 965/90, 953/90, 954/90, 971/90, 972/90, 949/90, 986/90 1079/'10, 1106190, 1158/90, 1071/90, 1069/90, 1077/90, 1119/90, 1053/90, 1102/90, 1120/90, 1112/90. l 276/90, 1148/90, 1105/90, 974/90, 1114/89, 987/90, 1061/90, !064/90, \101/90, 1115/90, 1116/90, 1117/90, 1123/90, 1124/90, 1126/90, 1130/90, 1141/90, 1307/90, T.C. C (C) Nos. 27/90, 28-31/00, 32-33/90, 34-35/90, i\5/90, J/91, W.P. (C) Nos. 10~1/90. 343/91, 1362190, 1094191, 1087/90, 1128/90. 36191, 3/91, LA. No.1-20 in T.C. (C) No. 27-35190 & W.P. (C) No. 11/92, 111/92, 261/92.)

Advocates appearpd for the Petitioners:

D K.K Venugopal, Shahid Rizvi, P.P. Tripathi, K.Y. Yishwanathan, Ashok Mukhoty, B.B. Sawhncy, Mrs, Indian Sawhncy-in-person. (In W.P. No. 930/90) Indra Makwana, (Jn W.P. No. 97/91) N.A. Palkhiwala, Ms. Lira Goswami, D.N. Misra, J.B. Dadachanji, (In W.P. 948/90 for JBD & Co.) /\. Marh1rputham & Mrs. Aruna Mathur, for Arputh::i.m, Aruna & Co. in W.P. 966/90 R.C. Guorelc, (In W.P. No. 965/90). Petitioncrs-inperson (In E W.P. Nos. 953 & 954/90.) S. Menon, (Jn W.P. No. 97l/90) Mrs. Shyamla Pappu, Y.K. Chinlla, Ajay Agarwal and D.B. Vohra, (In W.P. No. 972/90) Petitioner-in-person (In W.P. No. 949/90) O.P. Poplai, S.K. Tewari, for Singhania & Co. in W.P. 986/90 C.S. Srinivasa Rao, (In W.P. No. 1079/90). Mrs. K. Hingorani, (Jn W.P. No. Jl06/90) N.H. Hingorani, (In W.P. No. F 974/90) Ms. Priya Hingorani, (In W.P. No. 343/90) Petitioner-in-person (In W.P. No. 1158/90) Balbir Singh Gupta, (In W.P. Nos. 1071/90 & 1069/90) K.M. Sharma &. Randhir Jain, (In W.P. 1077/90) .Jagdish Prasad, R.K. (>upta, Pritarn Chand Kapur, (In W.P. No. 1119/90) L.K. Pandey, in W.P. Nn. 1276/90. Prem Sunder Jha, (!n W.P. No. 1053/90) M.M. Kashyap, (In W.P. 1102/90) Petitioners-in-person (In W.P. Nos. 1148/90 & 1120/90) P.P. G Singh, (In W.P. No. 1105/90) 5.M. Ashri, Petitioner-in-person (In W.P .. 1112/90) R. Mohan, (In W.P. No. 1114/89) Mrs. Chitra Markandeya (NP) 1

& S. Markandeya, .(In W.P. No. 987/90) P. Parmeswara Rao, and K.K. Gupta, (In W.P. No. 1061/90) C.S. Vaidyanathan, (Jn W.P. No. 1064/90) S.R. Setia, (In W.P. No. 1101/90) Ms. Lira Goswami, for JBD & Co. in H W.P. Nos. 1115, 1116 & 1117/90. Petitioner-in-person (In W.P. No.

INDIL\ Si\WHNFY 1·. U.O.l. 541

1123/90) S. B. Upadhyay, (in W.P. No. 1124/90) Ms. Rani .lcthmalani, P.K. A Dey, Ms. Pravcen Khatra and Ms.G.K. Das, (In W.P. No. 1126/90) Ms. S. Chaturvedi, (In 'N.I'. No.1130/90) Sushi! Kumar Jain. (In W.P. No.1141/YIJ) Manoj Prasad, (Jn W.P. No. 1307/90) Mukul Mudgal, (ln T.C. No. 27190) A. Subhashini, (In T.C. No. 28-33/90, 34-35/90 & 65/90) P. Parmeswaran, (In T.C. 1/91) Mrs. Urmile Sirur and Ms. ~fanjulagupta, (In W.P. 1081/90 & lJ 1/92) S.N. Mehta, (In \V.P. No. 1362/90) Dr. Rajcev Dhawan, R. B Sasiprabhu and M.T. George, (In W.P. No. Hl94/91) P.N. Puri, (In W.P. No. 1087/90) C.S.S. Rao, (In W.P.No. 1128/90) Indeevar Goodwill, (In W.P. No. 36/91) N.S. Bist, (In W.F. No. 3/91)

Advocates appeared for tire R"'ponde/lls: c Altaf Ahmed, Addi. Solicitor General, K. Parasaran, Mrs. Anil Katiyar, B. Parthasarthy, Ms. \'ijay Lakshmi Mennn and Ms. A. Subhashini, (In W.P. No. 930/90-U.O.L) Ram Jethmalani, Ms. Lala Krishnamorty, K. Jatinder Cheema, P.K. Dey, R.K. Yadav and B.B. Singh, (For the State of D Bihar). S. Sivasubramaniam, P.N. Ramalingam, V. Balaji and E.C. Agrawala, (For the State of Tamilnadu) P.S Poli, V.K. Veeran, Addi. Advoatc-General and T.T. Kunhikannan, (For the Stale of Kerala) S.C. Roy, Advocate-General, Ms. Mona Mehta, A.K. Panda and R.K. Mehta, (For the State of Orissa). A.S. Nambiar, Mrs. Shanta Vasudevan and P.K. Manohar, (For the State of Pondicherry) V.K.S. Choudhary, Advocate- E General, Vishwajit Singh, Ms. Parenna Swarup and R.B. Misra, "(For the State of U.P.) H.S. Munjrai, G.K. Bansal, (For the State of Punjab) Sakesh Kamar and Salish K. Agnihotri, (For the State of M.P.) A.S. Bhasme, (For the State of Maharashtra) Pravin Choudhary, for the State of Assam. Kh. Nobin Singh and M. Veerappa, for the State of Karnataka. Aruncshwar ·f Gupta, for the Stale of Rajasthan. Ms. Suruchi Aggarwal and T. V.S.. Narasimhachari, for the State of Andhra Pradesh. K.R. Nambiar, Ms. Bina Gupta and Ms. Monika Mohil, for the State of Himachal Pradesh) Ms. lndu Malhotra and Ms. Shirin Jain, for the State of Haryana. D.K. Sinha .l.R. Das, for the State ·of West Bengal in W.P. No. 1079/90 for Sinha and Das. Mrs. Veena Devi Khanna, in W.P. Nos. 948, 966/90 C.V. Subba Rao G and Ms. A. Subhashini, in W.P. No. 965/90 & in Union of India. Ms. Kamini Jaiswal, in W.P. Nos. 965, 949 & 971-72/90. Guntur Prabhakar, In W.P. No. 949/90. Mrs. Hemantika Wahi, In W.P. No. 1079/90. Ms. Alpana Kirpal, Kailash Vasdev, Ranjan Dwivedi, K. Garg, A.L. Trehan, B.D. Sharma, E.M.S. Anam, Naresh K. Sharma, M.K.D. Namboodiri, R.D. H

542 SUPREME COURT REPORTS [19Y²] SUPP. 2 S.C.R.

A Upodhyay, N. Sudhakaran, M.A. Firoz, Y. Krishnamurty, D.K. Garg, R. Karanjawala, Mrs. Nandini Gore, Mrs. Aditi Choudhary (for Mrs. M. Karanjawala), Jagdish Prasad, R.K. Aggarwal, P.C. Kapoor, R.K. Mahesh· wari, K.M.K. Nair, Naresh Kaushik, Lalitha Kaushik, N.D.B. Raju, Anis Suhrawardy, Manoj Prasad, C.L. Sahu, Attar Singh, M.K. Michael, K, Swami, Brij Bhushan, for the State ol Arunachal Pradesh. B Advocates appeared as Intervener:

Yasant Sathe, R.K.Garg, N.B. Shetye, D.B. Vohra, Jitendra Sharma, S.N. Bhat, S.K. Bhattacharya, Ranjesh, KN. Rao-in-persen, Ram Avadesh c Singh-in-person, Dr. L.M. Khanna-in-person, Shiv Pujan Singh, Dr. B.S. chauhan, Sunil Singh, Ms. Niranjana Singh, Ms. Subhadra Chaturvedi, P.N. Puri, S.Y. Krishnamurty, Mukul Gupta, and Yishaljeet.