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

The rest of the said order is valid.

The Government may evolve the necessary socio- economic criterion to define the advanced sections of the G backward classes to give effect to the order.

2. Clause 2(i) of the second order dated 25th Septem- ber, 1991 is valid only if it is read down as under:

[a] No distinction can be made in the backward classes as H

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

A poor and poorer sections thereof. The 1fatinction can be made only between the advanced and the backward sections of the backward classes. The advanced sec- tions are those who have acquired the capacity to compete with the forward classes. Such advanced sec- tions no longer belong to the backward classes and as B such are disentitled to the reservations under Article 16(4). The reservations can be made only for the benefit of the backward or the non-advanced sections of the backward classes.

C [b] When backward classes are classified into backward and more or most backward classes as stated above on the basis of the degrees of social backwardness [and not on the basis of the economic criterion alone], exclusive quotas of reservations will have to be kept separately for the backward and the more or most D backward classes. It will be impermissible to keep a common quota of reservation for all the backward ... classes together and make available posts for the back- ward classes only if they are left over after satisfying the requirements of the more or most backward clas- E ses. That may virtually o.mount to a total denial of the posts from the reserved quota to the backward classes.

(c) Clause 2(i) of the order dated 25th September, 1991 is, therefore, invalid, unless it is read, interpreted and implemented as above. F

3. Clause 2(ii) of the said order is invalid since no reserva- tions can be kept on economic criterion alone.

106. The writ petitions and transfer cases are disposed of in the above terms. No costs.

107. In view of the reasons given and the conclusions arrived at by me above, I agree with the conclusions recorded in paragraphs 122 and 124 and the directions given in parae;aph 123 (A], (BJ aod (CJ of the judgment bein{delivered by brother Jeevan Reddy, J. on belialf of himself, and on behalf of the learned Chief Justice and brothers Venkatachaliah and

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 941

Ahmad~ JJ. A R.M. SAHA!, J. Constitutional enigma of identifying 'backward classes' for 'protecting' or 'compensatory benefits' under constitutionally permissive discrimination visualised by Article 16(4) of the Constitution, except for scheduled castes and scheduled tribes, is as elusive today as it was when the issue was debated in the Constituent Assembly, or in Parlia- B ment in 1951, even after appointment of two commissions by the President under Article 340(1) of the Constitution, one, in 1953 known as Kaka Kalelkar Commission and other in 1979 which became famous as Manda! Commission, and furnished basis for reservation of appointment and posts for socially and economically backward classes (SEBC) in services under C the Union, by Office Memorandum dated 13th August, 1 1990 amended

I OFFICE MEMORANDUM "Subject : Recommendations of the Second Backward Classes Commission (Manda! Report) - Resctvation for Socially and Educationa11y Backward Oasses in services under the Government of India. D ... In a multiple undulating society like ours, early achievement of the objective of social justice as enshrined in the Constitution is a must. The Second Backward Classes Commission called the Manda! Commission was established by the then Government with this purpose in view, which submitted its report to the Government of India on 31.12.1980. E

2. Government have carefully considered the report and the recommendations of the Commi_ssion in the present context regarding the benefits to the extended to the socially and educationally backward classes as opined by the Commission and are of the clear view that at the outset certain weightagc bas to be provided to ·such classes in the services of the Union and their Public Undertakings. Accordingly orders are issued as follows:- (i) 27o/o of the vacancias in civil posts and services under the Government F of India shall be reserved .for SEBC. (ii) The aforesaid resetvation shall apply to vacancies to be filled by direct r. recruitment. Detailed instructions relating to the procedures to be fol- lowed for enforcing rcsetvation will be issued separately. (iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general can· G didates shall not be adjusted against the rcsctvation quota of 27%. (iv) The SEBC would comprise in the fitst phase the castes and com- munities which arc common to both the list in the report of the Mandal Commfasion and the State Governments' lists. A list of such castes/com- munities is being issued separately. (to be continued) H

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

A further in September 19912 adding, yet, one more class of economically backward. Nature of these orders, their constitutional validity, principle of their issuance and legal infirmity, Manda! Commission Report, its basis and foundation, scope of reservation, its length width and depth were subject- matters of intensive dabate in these Public Interest Litigations by members of the bar, representatives of various associations, and .numerous inter- venors. Range of controversy was, both wide and narrow touching various

(v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where the recruitment process has already been initiated prior to the issue of these orders.

3. Similar instructions in respect of public soctor undertakings and financial institutions c including public sector banks will be issued by the Department of Public Enterprises and Ministry of Finance respectively. Sd/· (Smt. Krishna Singh) Joint Secreto.ry to the Govt. of India."

D 2 OFFICE MEMORANDUM "Subject : Recommendation of the Second Backward Classes Commission (Manda! Report) - Reservation for socially and Educationally Backward Classes in service under the Government of India.

The undersigned is directed to invite the attention to O.M. of even number dated the 13th August, 1990, on the above mentioned subject and to say that in order to E enable the poorer sections of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation, Government have decided to amend the said Memorandum with immediate effect as follows:- (i) Within the 27% of the vacancies in civil posts and services under the Government of India rcsetved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case suffi- F cient number of such candidates are not available, unfilled vacancies shall be filled by thC other SEBC candidates.· (ii) 10% of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who arc not covered by any of the existing schemes of reservation. (iii) ('The criteria for detennining the poorer sections of the SEBCs or the G other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.) The O.M. of even number dated the 13th August, 1990, shall be deemed to have been amended to the extent specified above. Sd/- (A.K. Harit) DY. SECRETARY TO IBE GOVERNMENT OF INDIA" H

INDRA SAWI-INEY v. U.O.l. [R.M. SAHA!, J.] 943

aspects sensible and sensitive. But before adverting to them it is imperative A to thrash out, at the outset, if the issue of reservation of posts in services by the State is non-justiciable either because it is a political question or a matter of policy and even if justiciable then whether the rule of discretion requires to leave the field open for State activity to work it out by trial and arror. B 'A" (1)

Today the 'political thicket' has been entered with Baker v. Can; 369 U.S. 186 and Davis v. Sandemer, 54 l1SLW 4898 [1986] even, in America where the English shadow of 'king can do no wrong' was most prominently c reflected. The test now applied is if the controversy can be decided by 'judicially discernible and manageable standards' 54 USLW 4898 [1986]. 'The political questions doctrine, however, does not mean, that anything that is tinged with politics or even that any matter that might properly fall within the domain of the President or the Congress shall ~ot be reviewable, for that would end the whole constitutional function of the court' 1. Under our Con- stitution, the yardstick is not if it is a legislative act or an executive decision on policy matter but whether it vioJates any constitutional guarantee or has potential of constitutional repercussions as enforcement of an assured right, under Chepter Ill of the Constitution, by approaching courts is itself a E fundamental right. The 'constitutional fiction' of political question, there- fore, should not be permitted to stand in way of the court to, 'deny.the Nation the guidance on basic democratic problems'2. Avoidance of entering into a political question may be desirable and may not be resorted to, 'not because of doctrine of separation of power or lack of rules but because of expediency'3 in larger interest for public good but legislatures, too, have, F 'their authority measured by the Constitution' therefore absence of norms to examine political question has rarely any place in the Indian Constitutional jurisprudence. The, Constitution being, 'foremost a social document'4 the

Samuel Krislov - The Supreme Court in the Political Process p.96. G 2 C. Herman Pritchett - The American Constitution p. 154 (quoted in 'The Judicial Review of Legislative Acts" by Dr. Chakradhar Jha p. 355).

3 Charles Gordon Post p.129-130 - The Supreme Court Questions (quoted in 'The Judicial Review of Legislative Acts' by Dr. Chakradhar Jha p.351).

4 Granville Austin's 'The Indian Constitution Cornerstone of a Nation'. H

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

A courts cannot, 'retreat behind' 1 whenever they are called upon to discharge their constitutional obligation as 'if the judiciary bows to expediency and puts question in the political rather than in the justiciable category merely bacause they are troublesome or embarrassing or pregnant with great emotion, then the judiciary has become a political 'instrument itseir2. Thus,

B Legislative or executive action reserving appointments or posts in services of the State is neither a political issue nor matter of policy. ••

Mis-conception appears to be prevailing that the judiciary by exer- D cising power of judicial rONiew on matters which involve political considera- tions asserts superior capability thus violates the democratic mandate vested by the people in elected representatives. The judiciary derive their authority as much from 'the people' the ultimate sovereign as the legisla- ture or the executive. Each wing is a delegate of the Constitution. Each stand committed to be ruled under and governed by it. A legislature is elected by people to enact law in accordance with the Constitution, to work under and for it. By being people representative the mandate is to act in furtherance of ideals of democracy in accordance with provisions of the Constitution. No legislature or executive can enact a law or frame a policy against the dictates of the Constitution. 'Popular support expressed through the ballot box cannot validate an ultra vires action'. Elected repre- sentatives are as much oath bound to uphold and obey the Constitution as

- the judges appointed by the President. Both derive their power and authority from, the same source. What the Constitution says, what it means, bow it is to be understood and applied was entrusted to the judiciary as when, 'The People' of India resolved, to secure to all its citizens justice, social, economic and political, 'The judiciary was seen as an extension of the. Rights, for it was the courts that would give the Rights force'. 3 A

1&2 Tagore Law Lecture, From Marshall to Mukherjea 'Studies in American and Indian Constitutional Law' by William C. Douglas p.38. H 3 Supra 8.

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 945

declaration by a guvernment to reserve posts in services may be a matter of policy or even a political issue but an order issued or a Jaw made directing reservation can be sustained, only, if it is found to be constitu- tional. Judicial review in our Constitution has not 'grown' nor it has been 'assumed' or 'inferred' or 'implied' nor 'acquired by force' or 'stealthily' but is was provided for by the founding fathers. The higher judiciary has be.en visualised as 'an arm of the social revolution' .1 When our Constitution was framed the Wednesbury principle 2 evolved by the English Courts and the division of power adopted by American Constitution was fully known yet the country did not opt for vague resolutions as were adopted at Philadelphia Convention of United States in 1787 but decided to place the c apex court as custodian of the Constitution by declaring that any declara- tion of law by it was binding under Article 141 of the Constitution, its decree and orders were enforceable under Article 142 throughout the country, and all civil and executive authorities are to act in furtherance of it under Article 144. The range of judicial. review recognised by the D superior judiciary in India is perhaps the widest and most extensive known ' in the world of law'. Kahar Singh & Anr. v. Union of India & Anr., [1989] 1 SCC 204, Unlike England or America its sweep extends to all other organs functioning under the Constitution. The Court discharged its constitutional obligation in such sensitive but constitutional matters as President's par- E doning power, 3 decision of speakers of legislative assemblies, Kihota Hol- /ohon v. Zechi/hu, (1992] 1 SCR 309, President's power of dissolution of state legislative assemblies etc. State of Rajasthan & Ors. v. Union of India, [1977] 3 SCC 592, Reliance on American decisions for very limited scope for interference was not of much assistance as judicial power of the United States Supreme Court to examine race conscious measures or affirmative F J action either in economic field or admission programme in educational institutions was never doubted. The only difference was that the measures were tested either on what they described as 'close examination' or 'exact-

G supra 8. 2 'Wednesbuty principles' is a convenient legal 'shorthand' used by lawyers to refer to the classical review by Lord Greene MR in the Wednesbury case of the circumstances in which the courts will intervene to quash as being illegal the exercise of administrative discretion.' WADE - Administrative Law. 3 Supra 14. H

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

A ing judicial scrutiny'. For instance in University of California Regents v. Allan Bakke, 51 L. Ed. 2d 750, it was the latter test that was applied. It was observed, 'in order to justify the use of a suspect classification a State must show that its purpose or interest is both constitutionally pennissible and substantial, and that its use of the classification is, 'necessary ............... to B accomplishment of its purpose for the safeguarding of its interest'. Whereas in Fullilove it was observed that, 'programme that employs racial or ethni- cal criteria ....... calls for closer examination'. It was explained that whena programme employing a benign racial classification was adopted by an administrative agency on the explicit direction of congress, the courts were 'bound to approach' the 'task with appropriate deference to the congress, c the co-equal branch charged by the constitution with the power to provide for the "general welfare". H. Earl Fullilove v. Philip M. Klutznick, 65 L, Ed, 2d 902 In Metro Broadcasting, Inc. v. Federal Communications Commission 58 LW 5053, was reiterated and it was observed that, benign race conscious measure !!mandated by the congress11 even if these measures are not D "remedial" in the sense of being designated to compensate victims of past-governmental or social discrimination - are constitutionally permis- sible to the extent that they serve important governmental objectives within the power of congress and are substantially related to achievement of those objectives'. Suffice it to say that the observations were made in different context for different purpose. The grant of broadcasting rights to minority was upheld by the majority as 'minority ownership programmes are critical means of promoting broadcasting diversity'. But even in this decision Justice Stevens who concurred with majority agreed with minority in Ful- lilove (supra) and observed, 'I remain convinced, vf course, that racial or ethnic characteristics provide a relevant basis for desperate treatment only in extremely rare situations and that it is therefore "especially important \ that the reasons for any such classification be clearly identified and unques- tionably legitimate".'

The sweep and width of judicial power and authority exercised by this Court is much extensive and deep as the constitutional provisions mandate it to be so. Test for interference is constitutional violation. Due H regard to legislative measures or executive action directed towards welfare

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 947

measure has never been disputed by when they are overshadowed with extraneous compulsions or are arbitrary then, 'judicial interpretation gives better protection than the political branches'.1 Even the most reactionaries of American President Thomas Jeferrson once said. 'The law of the land administered by upright judges would protect you from any exercise of power unauthorised by the Constitution of United States'. Faith in the judiciary is of prime importance. Ours is a free nation. Among such prople respect for law and belief in its constitutional interpretation by courts require an extraordinary degree of tolerance and cooperation for the value of democracy and survival of constitutionalism.

(3) c Article 16(1) is a right created constitutionally in favour of all citizens and anyone is entitled to approach the courts against violation of his right by the State and assail State's latitude in remedial meausres or affirmative action to improve conditions of weaker sections or improve, lot of the D backward class, if they are not so, 'tailored' as not to transgress the constitutional permissible limits. Any state action whether 'affirmative' or 'benign', 'protective' or 'competing' is constitutionally restricted first by operation of Article 16(4) and then by interplay of Articles 16(4) and 16(1). State has been empowered to invade the constitutional guarantee of 'all' E citizens under Article 16(1) in favour of 'any' backward class of citizens only if in the opinion of the government it is inadequately represented. Objective being to remove disparity and enable the unfortunate ones in the society to share the services to secure equality in, 'opportunity and status' any state action must be founded on firm evidence of clear and legitimate identification of such backward class and their inadequate representation. F Absence of either renders the action suspect. Both must exist in fact to enable State to assume jurisdiction to enable it to take remedial measures. 'Power to make reservations as contemplated by Article 16( 4) can be exercised only to make the inadequate representations in the services adequate'. General Manager Southern Railway v. Rangachari, [1962] 2 SCR G 586, Use of expression, 'in the opinion of State' may result in greater latitude to State in determination of either backwardness or inadequacy of representation and sufficiency of material or mere error may not vitiate as State may be left in such field to experiment and learn by trial and error

The Court and the Constitution by A. Cox p. 372. H

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

A .>lith little interference from the court but if the principle of identification itself is illvalid or it is in violation of constitutionally permissible limits or if instead of carefullyidentifying the characteristics which could clothe the State with remedial action it engages in analysis which is illegal and invalid and is adopted not for remedial purposes but due to extraneous considera- tions than the court would be shirking in their constitutional obligation if B they fail to apply the corrective. States' latitude is further narrowed when no existence of the two primary, basic or jurisdictional facts it proceeds to make reservation as the wisdom and legality of it has to be weighed in the balance of equality pledged and guaranteed to every citizen and tested on anvil of reasonableness to 'smoke out' any illegitimate use and restrict the C State from crossing the clear constitutional limits. 'In framing a government which is .to be administered by men over men, the great difficulty lies in this, you must firsl·.eriable the government to control the governed, and in the next place oblige it to control itself.' 1 Judicial Review has come to be one of the ways of obliging government to control itself. A reservation for D a class which is not backward 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 exercised. Therefore, the exercise of power must precede the determination of these aspects each of which is mandatory. Since the exercise of power depends on existence of the two, its determination too must satisfy the basic requirement of being in accordance with Constitu- E tion, its belief and thought. Any determination of backward class in histori- cal perspective may be legally valid and constitutionally permissible. But if in determination 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. F (4)

Reservation being negative in content to the right of equality gruaranteed to every citizen by Article 16{1) it has to be tested against G positive right of a citizen and a direct restriction on State power. Judicial review, thus, instead of being ruled out or restricted is imperative to maintain the balance. The court has a constitutional obligation to examine if the foundation for State'.s action was within constitutional periphery and

Federalist No.Sl (extracted in American Constitutional Law) by Alphcus T. H Mason/D.G. Stephenson, Jr.

INDRA SAWHNEY v. U.0.1. [R.M. SAIW, J.] 949

even if it was, did the government prior to embarking upon solving the A social, problem by raising, 'narrow bridge' under Article 16(4), to enable the 'weaker sections of the people to cross the rubicon'.Chinnappa Reddy, J. in KC. Vasantha Kumar v. State of Kamataka, AIR 1985 SC 1495 at 1529, discharged its duty of a responsible government by constitutional method so as to put it beyond any scrutiny by the 'eye and ear' of the Constitution. B What comes out of the preceding discussion can ·be reduced thus:

(i) (a) Identification of backward class of persons and their inadequate representation in ·service are the basic or jurisdictional facts to empower the State to exercise the power of reservation. C

(b) Either of the conditions precedent are assailable and are subject to judicial review.

(ii) Reservation of appointments and posts under Article 16(4) can be challenged if it is constitutionally invalid or even if it disturbs the balance of equality guaranteed under Article 16(1) for being unreasonable or ar- .bitrary.

(iii) Burden to prove that reservation does not violate constitutioal guarantee and is reasonable is on the State.

Our Constitution like many modern constitutions was also, 'a break with the past' and 'was framed with, 'a need for fresh look'. Centuries of deliberate and concerted effort to deface the society by creating caste consciousness, exploiting religious sentiments was attempted to be effaced G by 'The People' when they resolved to constitute the country into a secular democratic republic. Preamble of the Constitution, echoing sentiments of nation, harrassed for centuries by foreign domination, 'to secure, to all its citizens justice, social, economic and political; Liberty of thought, expres- sion, belief, faith and worship; Equalit)'. of status and opportunity and to H

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

A promote among them all Fraternity assuring dignity of the individual' was not a mere flourish of words hut was an ideal set-up for pratice and observance as a matter of law through constitutional mechanism. Com- munal reservations were outlawed both from governance and administra- tion. States and governments were prohibited from practising race, religion B · or caste in any form by Articles 15(1), 16{2) and 29(2). Classification made on religion, race and caste was held to be 'opposed to the Constitution and constitutes a clear violation of the fundamental rights'. The State of Madras v. Shrimathi Champakam Dorairajan, [1951] SCR 525. New beginning was made by abolishing untouchability, prohibiting exploitation and guarantee- ing equality not only before law but in public services and employment both substantive and protective. Concern was shown for weaker sections of the society and backward class of citizens. Article 16(4) was in keeping with this philosophy. Reservation for 'any' backward class of citizens in services of the State was visualised as an integral part of equality of opportunity as phadge during freedom struggle was, 'equality not only of opportunity to be given to all but special opportunities for educational, economic and · cultural growth must be given to backward group so as to anable them to catch up to those who are ahead of tbem' 1. Employment or appointment to an office in the State constituted a, 'new form of wealth' on the date the Constitution was enforced, therefore equal opportunity to all its citizens was constitutionally provided for without any discrimination on religion, race or caste etc. But it would have been mere illusion if no provision was made to ensure similar opportunity to those citizens who remained back- ward either because of historically social reasons or economic poverty or ooor quality of education or any other reason which could be determinative of backwardness. How the doctrine of equality, claimed to be 'the core of F American democratic aspiration' was twisted, 'to relegate, racial minorities to inferior status by denying them, 'equal access to the opportunity enjoyed by others' under, cover of, 'separate but equal 'doctrine' commented by Justice Harlton in his dissenting opinion in Plessy v. Ferguson, 163 US 537 (1896) as 'pernicious' was well known. The American myth that it was a 'nation of equals and a classless society' 2 had been exploded. Technically G and even legally probably the interpretation could be within provision of constitutional guarantee of equality but it was abnoxious and destructive of

Pt. Jawahar lat Nehru.

H 2 Herbert J. Gans - 'The New Egalitarianism' (The Inequality & Justice by Rainwater)

INDRA SAWHNEY v. U.O.l. [R.M. SAHAI, J.] 951

social equality. 'The effect of the majority decisi0n in Plessy (supra) was to subordinate them until than dominant anti-discrimination principle of the Fourteenth Amendment to the Court created doctrine of reasonable clas- sification.'1 Although the doctrine of Plessy was gradually abandoned finally but not before 1954 till Brown's case was decided. Therefore Article 16 while providing for equality of opportunity to all without any distinction and irrespective of forward or backward class of citizens took care to avoid recurrence of American experience by directing State to reserve posts for backward class if they were not adequately represented in services as, 'inequality does not harm only the unequals, it hurts the entire society'.

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

INDRA SAWHNEY v. U.0.1. (R.M. SAHA!, J.] 953

ing to Ronald Dworkin, 'All human beings have a natural right to an A eqnality of concern and respect, a right they possess not by virtue of birth, but simply as human beings with the capacity to make plans and give justice.' Articles 39 and 46 are extension of this belief and thought. Any legislative measure or executive order reserving appointments or posts -. cannot be assailed as being beyond constitutional sanction. As far back as B 1951 it was held by a Seven Judges' Constitution Bench, of this court 'Reservation of posts in favolir of any backward class -0f citizens cannot therefore be regarded is unconstitutional'. B. Venkataramana v. The State of Mad!as & Anr., A.LR. 1951 SC 229. Nor did the Constitution makers restricted the period of its continuance as was done for Anglo-Indians by Article 336 as an enlightened and progressive state a responsible govern- C ment of a welfare country mast decide itself periodically on prevanleilt social and economic conditions and not on political consideration or extraneous compulsion if the protective umbrella has to be kept opened, for whom and for how long. D (3)

Before proceeding further it may be mentioned that many decisions were cited of American Courts dealing )Vith affirmative action forNegoroes and a parallel was attempted to be drawn from it for justifying reservation for other backward classes. But this ignores that unlike the United States our Constitution itself provides for reservation for backward classes, there- fore, it is unnecessary to derive inspiration from _decisions given by American court on equal protection clause. They may be relevant for classification and nexus test under Article 14 or even for judging if the provision by being arbitr,;,,, was violative of .equality doctrine but they cannot furnish relevant guideline for interpreting Article 16(4). How equality was distorted and how Blacks were made to suffer by biased an<) narrow construction of the concept of equality for nearly hundred years is a matter of history. To derive parallel from classification developed by American courts to support reservation on any ground for other backward classes would be constitutionally unjust and legally unsure. Whether American Constitution was or is colour blind or not but when our Con- stitution was framed caste was in, 'bad odour'. Deliberate 'Divide and Rule' policy of Britishers by perpetuating caste was in full glare, therefore, the foUJtding fathers while guaranting equality prohibited discrimination on the H

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

A ground of religion, race or caste etc. Unfortunate American experience of, 'separate but equal' doctrine legitimatised in Plessy v. Ferguson resulting in segregating negroes and keeping them at distance from American prosper- tiy was avoided by making the State responsible both for ameliorative measures or affirmative action and protective steps. The doctrine of, B' 'compelling State interest' developed by American Courts to support clas- sification for even race conscious measures pariicularly in economic field or business regulation have no relevance as the state'has been constitution- - ally empowered to re'thedy the social imbalance. From 'separate but equal? in Plessy to, 'freedom of choice' developed by Brown v. Director Board of Education, 347 US 483 (1954) and Brown v. Director Board of Education, C 349 US 294 (1955) to, 'just schools' without label of white or Negr() in Green v. Country School Board, 391 US 430 [1968} to eliminati<>n of segregation 'root and branch' in Swann v. Charlotte, Mecklenburg Board of Education, 402 US 1 (1970) may be a fascinating development for America but our constitutional provisions being more pragmatic and realistic to D problem of equality in public employment it appears unnecessary and risky to derive any inspiration from American decision for interpreting. Article • 16(4) as,

'In its Compensatory Programmes for depressed classes, E India, has gone much further than the egalitatrian western societies such as the Unites States'.1 The conclusion, thus, is that

F (1) Article 16(1) and 16(4) <>perate in the same field.

(2) Article 16(4) is exhaustive of reservation. - (3) No period for reservation has been provided but every State must keep on evaluating perilldically if it was neces- • sary to continue reservation, and for whom. G

l Glen M. and Johnson Sipra Bose, 'Social Mobility Among Untouchables', in Cohuion H and Conffict;n Modern India.

INDRA SAWHNEY v. U.0.1. [R.M. SAHAl, J.] 955

Thus the real issue is not reservation but identification. Who, then, are the, 'backward class of citizens'? What is the meaning of the word, 'backward', 'class' and 'citizens' individually and taken together. How are they to be identified. By their caste, occupation, status, economic condition etc. Although the issue of reservation has been agitated before this Court, time and again, the occasion never arose to lay down any principle or test for determination of other backward classes. C.A. Rajendran v. Union of India & Ors., (1968) 1 SCR 721, Janaki Prasad Panmoo v. State of J. & K (1973) 3 SCR 236, State of Kera/a & Ors. v. N.M. Thomas & Ors., (1976) 1 SCR 906, and Karamchan Sangh v. Union of India, (1981) 2 SCR 185, were no doubt concerned with Article 16 but they were cases of SC/ST who are constitutionally recongnised as, backward class of citizens. Champakan (supra), Tri/okinath Tikku v. State of J & K, (1967) 2 SCR 265, and Trilokinath & Ors. v. State of J & K, (1969) 1 SCR l031andA. Peeriakaruppan, etc. v. State of Tamilnadu, (1971) 2 SCR 430, were concerned.with reserva· D tion based on caste or religion. M.R. Balaji & Ors. v. State of Mysore, (1963) Supp. 1 SCR 439, Heggade Janardhan Subborye v. State of Mysore, (1963) Supp. 1 SCR 475, P. Rajendran v. State of Madras, (1968) 2 SCR 786, State of Andhra Pradesh & Ors. P. Sagar, (1968] 3 SCR 595, State of A.P. v. U.S. V. Ba/aram, (1972] 3 SCR 247, State of Uttar Pradesh v. Pradeep Tandon, (1975] 2 SCR 761, R. Chitralekha v. State of Mysore, (1964] 6 SCR 368, and Km. KS. Jayshree v. State of Kera/a, (1977) 1 SCR 194, were concerned with reserva- E tion under Article 15(4). Except for Vasanlha Kumar (supra) no exercise was undertaken to lay down any principle for determination of backward class. Reason for absence of any discussion appears to be that this Court • while explaining the word 'backward' in Balaji observed that backward classes intended to be covered in Article 15(4) were comparable to SC/ST F which was accepted and applied while deciding backward class under Ar· ticle 16(4) as well. But the kind of comparability • 'Whether of status, of disabilities suffered, of economic or educational conditions or of repre- sentation in government service' was not elaborated nor it was undertaken even in Bairam when the Court extended it to, 'really backward' even though not, 'exactly similar in all respects', as they were dealing with SC/ST. G (2)

The expression, 'any backward class of citizens' is of very wide import. Its width and depth shall be fully comprehended when significance of each word and the purpose of its use is explained. To preface the H

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

A discussion on this vital aspect, on which divergence extended to extremes both legally and sentimentally, it may be stated that in certain decisions given by this Court due weight was not, given to the words, 'class' and 'citizens'. Latter is explained in Chapter II of the Constitution. Any person satisfying those conditions is a citizen of this country irrespective of race, religion or caste. Member of every community Hindu, Muslim, Christian, B Sikh, Budh, Jain etc. who are citizens of this country and are backward and are not adequately represented in services are to be brought into National stream by protective or benign measures. Provisions of the Constitution apply to all equally and uniformly. Yardstick of backwardness must neces- sarily, therefore, has to be of universal application. c 'Class' has been linked with the word, 'backward' and has beelJJead as one word, 'backward class' thus occasioning the debate thal'ii"should be understood as 'backward caste'. Whether such reading is permissible is

.. another aspect which shall beadverted to, presently, butif the word, 'class' D is read individually or in conjunction with words 'of citizens' then its plain meaning and purpose is to exclude any reservation for individual. In other words reservation contemplated is for group or collectivity of citizens who are backward and not for any individual. The expression 'any backward class of citizen' thus is capable of being construed as class of backwards, backward among any class of citizens, backward class etc. depending on E for whom the reservation is being made and why.

Backivard may be relative such 'as professional or occupational back- wardness or it may be economic, social, eclucational or it may be racial such as in America or caste based as in Hindu social system or it may be natural ... F 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 with reference to opportunity in public employment. Since this is a constitutional issue it cannot be resolved by cliches founded on fictional mythological stories or misdirected philosophies or odious comparisons without any regard to social and economic conditions but by pragmatic, purposive and value oriented approach to the Constitution as it is the fundamental law which requires careful navigation by political set up of the country and any deflection or deviation disturbing or threatening the social balance has to be restored, as far as possible, by the judiciary. Backwardness in such a vast country with divergent religions, culture, language, habits, social and economic conditions

INDRASAWHNEY v. U.0.1. [R.M. SAHA!, J.] 957

artsmg out of historical reasons, geographical locations, feudal system, rigidity of caste is bound to have regional flavour. For instance place of habitation and its enviromnent_was held in Pradeep Tandon (supra) to be . determinative for social and educational backwardness in hills ofU.P. Inter- •· action of various forces have been responsible for backwardness.in different parts of the country. A caste backward in one State may be advanced in another. That is why Dr. Ambedkar while quelling misgivings of members in the Constituent Assembly Debate had stated, that backwardness was being, 'left to be determined by the local government' 1, probably; with hope and belief that once the problem was tackled by the State and backward citizens were adequately represented in State services the problem at the National level shall stand resolved automatically. c Individual backwardness in social sense is primarily economic. Article 16 (4) however, is concerned with class backwardness. In technical sense as explained by sociologists it is a problem of 'social stratification' arising out of, as said by Max Weber, due to political, social or economic order. Class or . -D group backwardness may arise due to exclusion of the entire collectivity as a result of combined or individual operation of any of these reasons. For instance in America as slavery receded after Civil War it was succeeded, 'by a caste system embodying white supremacy. Various "Jim Crow" laws, or segregation statutes, lent the sanction of the law to a racial ostracism found in churches and schools, in housing facilities, in restaurants and hotels, in most forms of public transportation, on the job, in universities and colleges, and ultimately in morgues and cemeteries. In addition, black Americans were long denied the right to vote, to serve on juries, and to run for public office.'2 The SC and ST in our country bore a close parallel to it except that their exclusion or segregation was mainly social. That is why the constitutional protection was provided for them. For granting similar benefit on backward- ness to other group or collectivity the State must be satisfied, that, they were subjected to at least similar if not same treatment or were excluded from services foi any of the reasons social, economic or political individually or collectively and continue to be excluded before they can be identified as backward class for purposes of Article 16(4). Article 340 is, however, con- G cerned with social and educational backwardness. Since the impugned or- ders have been passed on identification of backward class by a Commission

1 Constituent Assembly Debates Vol. VII p. 701 (1948-49). 2 'Equality Justice and Rectification' by Derck L. Phillips, p.289-290. H

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

A appointed by the President in exercise of power under this provision it will have to be examined if the Commission acted within the scope of its reference and how this expression has to be understood.

INDRA SAWHNEY v. U.0.1. (R.M. SAHA!, J.] 959

1 to 7 Exatracted in 'Competing Equalities' by Marc Galantcr. · H

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

iiiR i1' a particular State. In iµiy case it 'never acquired a definite meaning at · tl!cj;all India level. There had been no attempt to define it or employ it one the lliltional level1. The statement of Dr. Ambedker in the Constituent Assembly or determination of backwardness at local or State-level was thus not casual but an outcome of practical reality and historical truth.

Historiqilly, therefore, what started as social upliftment measure for the down-trodden amongst Hindus in some princely States gradually developed into formation of various associations in different States en- couraged by the social caste consciousness created by the Britishers to demonstrate backwardness for claiming preferential treatment injected in the society by communal representation. The Constitution makers were aware.of this background. It is vividly reflected in the Constituent Assembly Deb~t~s: Therefore a very vital, question arises if the expression, 'backward class' u8ed in Article 16(4) has to be read and understood as extending or applying to backward Hindu Castes only. Meaning of the word 'backward' and 'class' have already been explained. Language of the expression does not warrant reading of the expression as backward caste. When two words one wider an import and broader in application and other narrower were avail- able and the Constitution makers opted for one the other, on elementary principle of construction, should be deemed to have been rejected. What was avoided by the framers of the Constitution, for good reasons and, to achieve the objective they had set up for the governance of the country cannot be brought back either by government or courts by interpretation or construc- tion unless the consequences of accepting the literal or the normal meaning appears to be so unreasonable that the Constitution makers would have never intended. 'Although the spirit of an instrument especially of a constitution is to be respected not less than its letter yet the spirit is to be colleoted chiefly 2 from its words'. For this reason alone any suggestion of accepting the ,• expression as interchangeable with caste cannot be accepted. Even the spirit behind use of the expression was not to provide for cluster of castes, known as Sudras of the Hindu hierarchy before the Constitution, but for groups or class of different communities following different religions, as rights fun- damental or otherwise have been guaranteed to members of every com- munity irrespective of religion, race, caste or birth. Article 340 empowers I Competing Equalities by Marc Galanter. :\ 2 Justice Marshall in Sturges v. Crowninshicld, (1819) quoted in Encyclopaedia of the H American Constitution, Vol. 1 by Levy, Karst & Mahoney.

i INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] ' 961

President to appoint a Commission to investigate the conditions of socially and educationally backward classes within the territory of India. Such classes may belong to any community. Preferential treatment accorded to various communities before 1950 on basis of religion, race or caste was d.one away with. Promise was to take care of minorities as well. Article 335 ensured claim of SC/ST in ·services. Other backward citizens irrespective of race, religion were to be taken care of as, 'The Constitution was framed with grand compromise. A splendid compromise between formal equalitarian justice and compensatory justice through benign or protective discriminatiou was devised so beautifully that that was to serve the purpsoe of assimilation, integration was equal partnership in national building by making equal contribution in the main stream of life' .1 If Article 16( 4) is confined to backward classes of Hindu hierarchy by narrowing it down to caste it would be doing violence to the language of the provision and the spirit in which the expression was used leading to injustice. No provision in the Constitution indicates that the expression has to be understood in such narrow sense. Reading it otherwise may lead to contradiction. Normal and natural meaning of an expression can be, disregarded only if it is found that the framers of the Constitution did not intend to use it in that sense and 'absurdity and injustice of applying the provision would be so monstrous that all mankind would, without hesitation, unite in rejecting the application'. 2 When the Constitution was framed the founding fathers were aware of the meaning and under- standing of the word 'backward'. They were also aware that hereinafter members of all community were to be treated alike. The State was made responsible, therefore, for 'any' backward class of citizens coming from whatever community, caste or religion. State, therefore, cannot discriminate, while identifying backward class on race, religion, caste or birth. F (6)

True the discussions in the Constituent Assembly Debates centred round caste and community. Even Dr. Ambedkar said, 'what are called backward classes are ..............nothing but a collection of certain castes'. That G however cannot be conclusive for construing the expression as, the historical backgrotmd and perhaps what was accepted or what was rejected by the

Rese~tion Policy and Practice in India by Dr. Anirudh Prasad. 2 Supra (73). H

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

A Constituent Assembly while the Constitution was being framed may be taken into account, 'but not to interpret the Constitution', J.C. Golak Nath v. State ofPunjab, AIR 1967 SC 1643. What emerged out of shared understanding by consensus was not backward caste but backward class, an expression of elasticity capable of expanding depending on the nature and purpose of its use. Motivation for use of expression 'backward class' might have come from B a feeling to accommodate and benefit those who were deprived of entering into services due to social and economic conditions amongst Hindus. But what is being interpreted is a Constitution, a document, an instrument which is good not for a season or a session but for centuries during the course of which even the most stable society may undergo social, economic, political c and scientific changes resulting in transformation of values. Are the values in the society same today as they were in 1950 or 1900? Words or expressions remain the same but its meaning and application with passage of time changes. When the framers of the Constitution deliberately used an expres- sion of expansive nature then as said by Justice Frenk Purter, 'they should be D left to gather meaning from experience. For they relate to whole domain of social and economic fact and statesman who founded this nation knew too well that only a stagnant society remains unchanged'. This Court is being asked to interpret the provision in 1990. It cannot ignore the present by going into past.

E "The law, even as sit honours the past, must reach for justice of a kind not measured by force, by the pressures of interest groups, nor even by votes, but only by what reason and a sense of justice say is right. Brown was 'law' in 1954, even though the 'separate but equal' doctrine had half a century of precedent and practice behind it. Continuity is essential F to law as a whole, but the continuity must be creative."1

G 'Caste is a reality'. Undoubtedly so are religion and race. Can they furnish basis for reservation of posts in services? Is the State entitled to practice it in any form for any purpose? Not under a constitution wedded to secularism. State responsibility is to protect religion of different communities and not to practice it. Uplifting the backward class of citizens, promoting

H 1 A. Cox - The Court and the Constitution.

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 963

them socially and educationally talcing care of weaker sections of society by A special programmes, and policies is the primary concern of the State. It was visualised so by framers of the Constitution. But any claim of achieving these objectives through race, conscious measures or religiously packed program- mes would be uncharitable to the noble and pious spirit of the founding fathers, legally impermissible and constitutionally ultra vires. Deriving in- B spiration from the American philosophy that, 'just as the race of students must be considered in determining whether a constitutional violation has occurred so also must race be considered in formulating remedy' without any regard to the Preamble of our Constitution and provisions like Articles 15(1), 10(2) and 29(2) would be plunging our Nation into disaster not by what was adopted and promised as principle for governance for our people on our soil but from what has been laid down in a country which is yet far away from, 'equality of result' or 'substantive equality' so far Black or Brown are con- cerned.

Brown v. Board of Education (supra) which is considered as 'turning the clock back' on racial discrimination was given much after Venkataramana. Provisions like Article VI were introduced in America in 1964 only. WhenBakke (supra) was delivered Justice Harsha! lamented, 'this Court in the Civil Rights cases and P/essy v. FeTgUson destroyed the move- ment towards complete equality. For almost a century no action was taken, and thus non-action was with the approval of the Court. Then we had Brown E v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative action programmes. Now, we have this Court again stepping in, this time to stop affirmative action programs of the type used by the University of California'. The lament was because of failure to bring the Negroes in the mainstream, 'in light of the sorry history of discrimination and its devastating impact on the lives of Negroes is to ensure that America will forever remain a divided society'. But to avoid any risk of keeping ours a divided society, the Constitution makers provided ample safeguards for Scheduled Castes and Scheduled Tribes (SC/ST) the only category of back- ward class which could be compared to the Negroes in America. American philosophy developed by courts that discrimination having arisen due to race consciousness the remedy too should be race based, appears to have been inspired by our constitutional provisions which takes every precaution to remedy the caste related evil of SC/ST by caste based reservation. But the same can not be adopted for other backward classes as it would be distortion of constitutional interpretation by importing a concept which was deliberate- H

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

A ly and purposely avoiped. Insistence, for claiming reservation for the remain- ing or for all others. who were in so-called broader category of Sudras not because they were really backward without any regard to social and economic conditions, would be unfair to history and unjust to society. What is constitutionally provided has to be adhered to in spirit but not on assumption that all amongst Hindus who fell in the broader category of Sudras were subjected to same treatment as untouchables in India or Negroes in America. History, social or political, does not bear it out. Reservation for other back- ward class is no doubt constitutionally pennisible, on social and economic conditions which prevailed in the country and are still prevailing and not on benign steps for Negroes upheld by foreign courts. Judicial activism has no doubt in America been remarkable in absence of any constitutional protec- tion for the Negroes but our courts are not required to undertake the exercise as our constitutional statesmanship has no parallel in the world where to achieve egalitatian society truly and really it devised mechanism of treating the backward class of citizens, 'differently' by Articles 16(4) and 15(4) to bring them at par with others so that they could be treated equally. The policy of official discrimination is,

"unique in the world both in the range of benefits involved and in the magnitude of the groups eligible for them." 1

Caste has never been accepted by this court as exclusive or sole criteria for determination or identification of backward class. That is why the com- munal Government Order in Champakam and reservation, except for SC/ST F and Hindu backward, in S. Venkatramana v. State of Madras, AIR 1951 SC 229, were invalidated. Caste based evil was so repugnant that even when communal Government O.rder issued by the State of Madras a legacy of caste based reservation practised in Madras since thirties and forties was struck down and the Constitution was amended and Article 15 (4) was added the G basic philosophy against the caste was neither eroded nor mitigated and ameliorative steps were made state-responsibility for socially and education- ally backward castes. Balaji adopted test of, comparability of backward classes with Scheduled Caste and Scheduled Tribe as a result of combined reading of Article 340(1) and Article 338(3). Two major drawoacks were

H 1 Duskin, Lelah, MScheduled Caste Politics~, Untouchables in India.

INDRA SAWHNEY v. U.O.I. [R.M. SAHA!, J.] 965

noticed in identifying backward class with caste, one, 'it may not always be ·A legal and may perhaps contain the vice of perpetuating the caste', and other 'if the caste of the group of citizens was made the sole basis for determining the social backwardness of the social group, the test would inevitably break down in relation to many sections of Indian society which do not recognise caste in the conventional sense known to Hindu society'. Jn Chitralekha the B Court observed that 'caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of this Court · (Balaji) which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste'. P. Rajendran too did not differ with Balaji nor it carved out any new path. The Court accepted the determination of backward class as, the ex- C planation given by the State of Madras had not been controverted by any rejoinder affidavit. The Court observed, 'that though the list shows certain caste the member of those castes are classes of educationally and socially backward citizens'. In Sagar the Court was concerned with a list where backwardness was determined amongst others on caste taking i_t as one of the relevant test for determination of backwardness. Therefore, the Court agree- ing with Ba/aji observed, 'in determining whether a particular section forms a class caste cannot be excluded altogether. But in the determination of a class a test solely based upon caste or a community cannot also be accepted'. In Peeriakaruppan it was observed that, 'a caste has always been recognised as a class'. Support for this was sought from Rajendran and it was observed that it was authority 'for the proposition that the classification of backward classes on the basis of caste is within the purview of Article 15( 4) if those castes are shown to be socially and educationally backward. But Rajendran was decided as the caste included in the list were in fact socially and educationally backward. Bairam, too, followed the same and relying on Rajendran, Sagar F and Peeriakaruppan upheld the test as entire caste was found to be socially and economically backward. 'Caste, ipso facto, is not class in secular state' was said in Soshit Karamchari. lnJayshree it was held that caste could not be made the sole basis for reservation. Ratio in Rajendran, Sagar, Bairam ap.d Peeriakaruppan are wrongly understood and erroneously-.pplied. All these decisions turned on facts as the Court in each case upheld the classification G not because it was done on caste but those included in the list deserved the protection. Different streams of thought may appear from various decisions but none has accepted caste as the sole criteria for determination of back- wardness. H

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

'Backward class' in ~Article 16(4) thus cannot be read as backward caste. What is the scope then? Is it social backwardness, educational backwardness, economic backwardness, social and economic backward- ' ness, natural backwardness etc.? In absence of any indication expressly or B impliedly any group or collectivity which can be legitimately considered as, 'backward' for purposes of representation in service would be included in the expression 'backward class'. Word 'any' is indicative of that the back- ward class was not visualised in singular. When Constitution was framed the anxiety was to undo the historical backwardness. Yet a• Word of wider c import was used to avoid any close-door policy. For instance, backwardness arising out of natural reasons was never contemplated. But today with developments of human rights effort is being made to encourage those to whom nature has not been so kind. Do such persons not form a class? Are they not backward? They cannot, obviously compete on equal level with others. Backwardness which the Constitution makers had to tackle by making special provision, due to social and economic condition, was dif- ferent but that does not exclude backwardness arising due to different reasons in new set up.

Although dictionarily the word 'any' may mean one or few and even all yet the meaning of a word has to be understood in the context it has been used. In Article 16(4) it cannot mean all as it would render the whole Article unworkable. The only, reasonable, meaning that can be attributed to it is that it should be the States' discretion to pick out one or more than one from amongst numerous groups or collectivity identified or accepted as backward class for purposes of reservation. Whether such picking is reasor.able and satisfies the test of judicial review is another matter. That explains the rationale for the non-obstante clause being discretionary and not mandatory. A State is not bound to grant reservation to every backward class. In one State or at one place or at one point of time it may be historical and social backwardness or geographical and habitational back- (; wardness and at another it may be social and educational or backwardnes> arising out of natural cause.

From out of various backward class of citizens who could be H provided protection under Article 16(4) the President has been em-

INDRA SAWHNEY v. U.0.1. [R.M. SAHAl, J.] 967

powered by Article 340 to appoint a Commission to investigate the condi- A tions of socially and educationally backward classes within the territory of India. What does the expression 'socially and educationally backward classes' connote? How it should be understood? Is it social backwardness only? Is the educational backwardness surplus-age?. Article 340(1) of the Constitution reads as under: B "The President may by order appoint a Commission con- sisting of such persons as he thinks fit to investigate the conditions of socially and and educati0nally backward clas- ses within the territory of India and the difficulties under which they labour and to make recommendations as to the c steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission. n

A bare reading of the Article indicates that the avowed objective of this provision is to empower the President to appoint a Commission to ascerM tain the difficulties and the problems of the socially and educationally backward classes and to make recommendations so that steps may be taken by the Union and the States to solve their problems, remove their difficul- ties and improve their conditions. Since backwardness has been qualified by the words 'social and educational' the ambit of the expression is not as wide as backward class in Article 16(4). What does it mean then? A social class, 'is an aggregate of persons within a society possessing about the same status'. 1 How to determine backwardness of such a class. The yardstick of backwardness in any society is, primarily, economic. But Indian society, 'has made caste as the sole hierarchy of social ranking and uses the caste system as the basic frame of reference'.2 Expert Panel of Manda\ Commis- sion described it as ascribed status, that is, stauts of a person determined by his birth. The social backwardness in pre-independence period, no doubt, arose because of caste stratification. Members of castes other than

1 The New Encyclopaedia 'Britannica, Micropaedia Vol. 10 p.919.

2 'The Case System in India' by Dr. Rajendra Pandey. H

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

A Brahmans, Thakurs and Vaishyas were socially backward. But with foreign domination, enlightened movements both social and religious, acquisition of wealth and power a gradual caste mobility took place not only to consolidate but even to assert a higher social status. 'The struggle launched by these backward castes as a subaltern in the pre-independence period, changed its course in the post independence period'1 due to vested interest B in reservation, 'It is well known that up to year 1931, the last census year for which castes are recorded, there were several castes applying for changing their names to those indicative of higher caste status. In that period name indicated status. The trend now is to claim backwardness both among the Hindus and Muslims by claiming the same caste status by c various devices as those who are legally considered as backward caste,2 are the beneficiaries of reservation. While determining social backwardness, therefore, one cannot loose sight of the type of society, the social mobility, the economic conditions, the political power. Even the Expert Panel noticed few of these but then it got lost in ascribed status. The social backwardness in 1990 for purposes of employment in services cannot be status by birth but backwardness arising out of other elements such as class, power etc. Dr. Pandey in his book [The Caste System in India) after an elaborate study has concluded,

ul. Class, independent of caste, determines social ranking in Indian Society in certain domains;

2. Analysis of caste alone is not sufficient to provide the real picture of stratification in India to-day;

3. A proper study of stratification in modern India must concern with other dimensions, viz., class, status and power."

While explaining power be has observed in, 'past power was located in the dominant caste'. But it is now changing in two senses, 'first, power is shifting from one caste (or group of castes) to another. Secondly, power is shifting from caste itself and comes to be located in more differentiated

1 Pradeep Kumar Bose - Mobility & Conflict published in Caste, Conflict and Reser- vation.

2 Should the caste be the basis for recognising the backwardness - l.P. Desai (extracted from Caste, Conflic~ and Reseivation).

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 969

political organs and institutions. This has been empirically found by A Beteille, ~nd others on the basis of his studies of Kammas and Reddis of Andhra Pradesh. Harrison writes: "This picture of political competition between the two caste groups is only a modern recurrence of an historic pattern dating back to the fourteenth century. Srinivas' analysis of politics in Mysore gives a central place to rivalries between the dominant castes: "As in Andhra, the Congress is dominated by two leading peasant castes, one of which is Lingayat and the other Okkaliga. Lingayat Okkaliga rivalry is colouring every issue, whether it be appointment to government posts or reservation of seats in colleges, or election to local bodies and legislatures.' Both - Harrision's study in Andhra Pradesh and Srinivas 'in Mysore - depict the rise to power of the two pairs of non-Brahman dominant castes followed by the decline of the Brahmans".' Any determination of social backwardness, therefore, cannot be valid unless thes.e important aspects are taken into consideration.

Educational backwardness too was not added just for recitation. No word in Statute, more so in a Constitution, can be read as surplus-age. In D II none of the decisions of this Court under Article 16(4) it has been held that educational backwardness was irrelevant. In Balaji declaration of minor community as educationally backward was not accepted as correct since the student community of 5 per thousand was not below the State average. In Bairam the Court approved acceptance by the government of criteria adopted by the Commission for determining social and edcuational backwardness of the citizen, namely,

"(i) the general poverty of the class or community as a whole;

(ii) Occupations pursued by the classes of citizens, the nature of which must be inferior or unclean or undignified and unremunerative or one which does not carry influence

- or power;

(iii) Caste in relation to Hindus; and G (iv) Educational backwardness."

In the hoary past the education amongst Hindus was confined to a par- ticular class, that is, the Brabmins, but with advent of Muslim rule and British regime this barricading fell down, considerably, and the education H

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

A spread amongst other classes as well. But even in those times there was a section of society which was kept away, deliberately, from education as they were not permitted to enter the schools and colleges. That has been done away with by the Coostitution. Yet the educational with all efforts has not filtered to certain classes particularly in rural areas and many traditionally educationally backward still suffer from it. At the same time many groups B or collectivity did not opt for education for various reasons, personal or otherwise. Therefore, a Commission appointed under Article 340 cannot determine only social backwardness. Any class to be backward under Article 340 must be both socially and educationally backward.

C Two things emerge from it, one, that the backward class in Article 16(4) and socially and educatinally in Article 340, being expressions with different connotations they cannot be understood in one and same sense. The one is wider and includes the other. A socially and educationally backward class may be backward class bui not vice versa. Other is that such investigation cannot be caste based. Meaning of expression 'socially and educationally backward' class of citizens was explained in Pradeep Tandon as under:

1 'The expression 'classes of citizens' indicates a homogen- ous section of the people who are grouped together be- cause of (a) certain likeness and common traits and who are identified by some common attributes. The homo- geneity of the class of citizen is social and educational backwardness. Neither caste nor religion nor place of birth will be uniform element or common attributes to make them a class of citizens1'. F Even when the report of first Backward Class Commission was submitted to the Government of India the memorandum prepared by it,

- and presented to the Parliament, emphasised that, efforts should be made, 'to discover some criteria other than caste, which could be of practical application in determining the backward classes'. Three of the members of the Commission, 'were opposed to one of the most crucial recommenda- tions of the Report, that is, the acceptance of caste as a criteria for social backwardness and reservations of posts in government service on that basis'. One of the reasons given for it by the Chairman in his letter was that adopting of caste criteria was, 'going to have a most unhealthy effect on the Muslim and Christian sections of the nation'.

INDRA SAWHNEY v. U.0.1. [R.M. SAHAI, J.] 971

When Second Backward Class Commission was appointed by the A President under Article 340 it was required, 'to determine the criteria for determining the socially and educationally backward classes' and,

11 to examine the desirability or otherwise of making provision for the reservation of appointments or posts in favour of such backward classes of citizens which are not B adequately represented in puhlic services and posts in connection with the affair; of the Union or of any State".

The order further outlined the procedure to be followed by the Commis- sion as required by Art. 340 by directing it to C

"examine .the recommendations of the Backwan:l Classes Commission appointed earlier and the considerations which stood in the way .of the acceptance of its recommen- dations by Government". D The Commission thus was required to undertake the exercise so as to avoid repetition of those failings of due to which the report of first Commission could not be implemented. The Commission was not oblivious of it as in paragraph 1.17 of the report it observed, E "Though the above failings are serious, yet the real weak- ness of the Report lies in its internal contradictions. As stated in para 1.5 of this Chapter, three of the Members

.. were opposed to one of the most crucial recommendations of.the Report, that is, the acceptance of caste as a criterion for social backwardness and the reservation of posts in F Government services on that basis. 11

Yet the Commission undertook extensive exercise for ascertaining social system and opined t~at,

"12.4 In fact, caste being the basic unit of social organisa- G tion of Hindu society, castes are the only readily and clearly "recognisable and persistent collectivities".

Having done so it determined social and educational backwardness in paragraph 11.23 as under : H

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

A "11.23 As a result of the above exercise, the Co!l1lllission evolved eleven 'Indicators' or 'criteria' for determining • social and educational backwardness. These 11 'Indicators' were grouped under three broad beads, i.e., Social, Educa- tional and Economic. They are: B A. Social

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

(ii) Castes/Classes which mainly depend on manual labour c for their livelihood. ·

(iii) Castes/Cla.sses where at least 25% females and 10% males above the State average get inarried at an age below 17 years in rural areas and at least 10% females and 5% males do so in urban areas. D (iv) Castes/Classes where participation of females in work is at least 25% above the State average.

B. Educational E (v) Castes/Classes where the number of children in the age group of 5-15 years who never attended school is at least 25% above the State average.

(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the .... F State average.

(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25% below the State average.

G C.Economic

(viii) Castes/Classes where the average value of family assets is at least 25% below the State average.

(ix) Castes/Classes where the number of families living in H Kuccha houses is at least 25% above the State average.

INDRA SAWHNEY v. U.O.L (R.M. SAHA!, J.) 973

(x) Castes/Classes where the source ·of drinking water is A beyond half a kilometer for .more than 50% of the households. ·

(xi) Castes/Classes where the number of households having taken consumption loan is at least 25% above . the State average. · B

11.24 As the above tlllee groups are not of equal impor- tance for our purp.ose separate weightase was j!iven to 'Indicators' in each group. All the Social 'Indicators' were j!iven a weightage of 3 points each, Educational 'Indicators' a weightage of 2 points each and Economic 'Indicators' a c weightage of one point each. Economic, in addition to Social and Educational Indicators, were considered impor' tan! as they directly flowed from social and educational backwardness. This also helped to highlight one fact that socially and educationally backward classes are economi- D cally backward also.

11.25 It well be seen that from the values j!iven to each Indicator, the total score adds up to 22. All these 11 In- dicators were applied to all the castes covered by the survey for a particular State. As a result of this aplication, all castes E which had a score of 50 per cent (i.e., 11 points) or above were listed as socially and educationally backward and the rest were treated as 'advanced'.

(Emphasised supplied) F In paragraph 12.2 of the Report the Commission observed,

"As the unit of identification in the above survey is caste, and caste is a peculiar feature of Hicdu society only, the results of the su..Vey cannot have much validity for non- G Hindu communities. Criteria for their identification have been given separately."

The Commission, thus, on own showing identified socially and education· ally backward class amongst Hindus on caste. The criteria for identifying non-Hindus backward classes was stated in paragraph 12.18: H

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

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

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

Caste was thus adopted as the sole criteria for determining social and educational backwardness of Hindus. For members of other communities test of conversion from Hinduism was adopted. The Commission, even, though noticed that the first Commission suffered from inherent defect of identifying on caste proceeded, itself, to do the same.

In preceding discussion it has been examined, in detail, as to why caste cannot be the basis of identification of backward class. The constitu- D tional constraint in such identification does not undergo any change be- cause different gro~ps or collectivity identified on caste are huddled together and described as backward class. By grouping together, the clustre of castes does not loose its basic characteristic and continues to be caste.

No further need be said as whether the Commission acted in terms E of its reference and whether the identification was constitutionally permis- sible and legally sound, before it could furnish for any exercise, legislative or executive, was to be undertaken by the government.

Use of expression, 'nothing in this Article shall prevent Parliament' F in Article 16(4) cannot be read as empowering the State to make reserva- tion under Article 16(4) on race, religion or caste. It would result in regenerating the communal representation in services infused by Britishers by different orders issued from 1924 to 1946. How such an expression should be interpreted need not be elaborated. Both the text books and judicial decisions are full of it. To comprehend the real meaning the provision itself, the setting or context in which it has been used, the purpose and background of its enactment should be examined, and interpretational exercise may be resorted to only if there is a compelling necessity for it. In earlier decisions rendered by the Court till sixties Article 16(4) was held to be exception to Article 16(1). But from 1976 onwards it has been understood differently. Today Article 16(1) and 16(4) are understood as

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 'l75

part of one and same scheme directed towards promoting equality. There- A fore what is destructive of equality for Article 16(1) would apply equally to 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).

Rule of statutory construction explained by jurists is to adopt a B construction which may not frustrate the objective of enactment and result in negation oft¥' objective sought to be achieved. Rigour of its application is even more severe in constitutional interpretation as ulllike statute its provisions cannot be amended or repealed easily. Accepting race, religion and caste as the remedy to undo the past evil would be against constitu- tional spirit, purpose and objectives. As stated earlier this remedy was adopted by the framers of the Constitution for SC/ST. What was not provided for others should be deemed, on principle of interpretation, not to have been approved and accepted. Even if two constructions of the provisions could have been possible, 'the Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity and given rise to practical incovenience'. Since acceptance of caste, race or religion would be destruc- tive of the entire constitutional philosophy and would be contrary to the Preamble of the Constitution it cannot be accepted as a legal method of identification of backward classes for Article 16(4). E Would the consequences be different if race, religion or caste etc. are coupled with some other factors? In other words, what is the effect of the word, 'only' in Article 16(2). In the context it has been used it operates, both, as permissive and prohibitive. It is permissive when State action, legislative or executive, is founded on any ground other than race, religion or caste. Whereas it is prohibitive if it is based exclusively on any of the grounds mentioned in Article 16(2). Javed Niaz Beg & Anr. v. Union of India & Anr., AIR 1981 SC 794, furnishes best illustration of the former. A notification discriminating between candidates of North Eastern States, Ttipura, Manipur etc. on the one hand and others for !AS examination and exempting them from offering lanr '.e paper compulsory for everyone was uphled on linguistic concession. When it comes to any State action on race, religion or caste etc. the word, 'only' mitigates the constitutional prohibi- tion. That is if the action is not founded, exclusively, or merely, on that which is prohibited then it may not be susceptible to challenge. What does it mean? Can a State action founded on race, religion, caste etc. be saved H

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

A under Article 16(2) if it is coupled with any factor relevant or irrelevant. What is to be remembered is that the basic concept pervading the Con· stitution cannot be permitted to be diluted by talcing cover under it. Use of word, 'only' was to avoid any attack on legitimate legislative action by giving it colour of race, religion or caste. At the same time it cannot be utilised by the State to escape from the prohibition by taking recourse to such measures which are race, religion or caste based by sprinkling it with something other as well. For instance, in State of Rajasthan v. Pradip Singh, AIR 1960 SC 1208, where. exemption granted to Muslims and Harijans from levy of cost for stationing additional police force was attempted to be defended because the notification was not based, 'only' on caste or religion but because persons belonging to these communities were found by the State not to have been guilty of the conduct which necessitated stationing of the police. force it was struck down as discriminatory since it could not be shown by the State that there were no law abiding persons in other communities. Similarly identification of backward class by such factors as dependence of group or collectivity on manual labour, lower age of mar· riage, poor schooling, living in kuccha house etc. and applying it to caste would be violative of Article 16(2) not only for being caste based but also for violation of Article 14 because it, excludes other communities in which same factors exist only because they are not Hindus. Further the group or collectivity, thus, determined would not be caste coupled with other but on caste and caste alone.

Today if Article 16(2) is construed as justifying identification of backward class by equalizing them with those castes in which the customary marriage age is lower or majority of whom are living in kuccba houses or a sizeable number is working as manual labour then tomorrow the iden- F tification of backward class amongst other communities where caste does not exist on race or religion coupled with these very considerations cannot be avoided That would result in malcing re.<ervation in public services on communal considerations. An interpretation or construction resulting in such catastrophical consequences must be avoided. G (12)

Backward used in Article 16(4) is wider than socially and education· ally used in Article 15(4) and wealcer sections used in Article 46. SC/ST }{ · .•e covered }n either expression. But same cannot be said for others.

INDRA SAWHNEY v. U.0.1. [R.M. SAHAl, J.] 977

Backward, cannot be defined as was, wisely, done by the Constitution A makers. It has to emerge as a result of interaction of social and economic forces. It cannot be static. Many of those who were Sudras in 17th and 18th Centuries ceased to be so in 19th and 20th Centurey due to their educa- tional advancement and social acceptablity. Members of various backward communities, both, in South and North who were moving upwards even B before 1950 compare no less in education, status, economic advancement or political achievement with any other class in society. The average lower middle class of Muslims or Christians may not be better educationally or economically and in many cases even socially than the intermediate class of backward class of Sri Paik's list. For instance the bhisties (the water carriers in leather bags) among Muslims. Does Article 340 empowering c ?resident to ascertain educational and social backwardness of citizens of this country not include those poor socially degraded and educationally backward. Are they not citizens of this counrty? Could backwardness of Muslims, Christians and Buddhists be recognised for purposes of Article 16(4) only if they were converts from Hinduism or such backwardness for D preferential treatment be recognised only if a group or class was Hindu at some time. or was occupationaHy comparable to Hindus. That is if members of other community carry on occupation which is not practised by Hindus, for instance bhisties. amongst Muslims, then they cannot be regarded as backward class even if it has been their hereditary occupation and they are socially, educationally and economiclly backward. A Commission ap- E pointed under Article 340 by the President is not to identify Hindu, backwards only but the backward class within the territory of India which includes Hindu, Muslim, Sikh or Christian etc. born and residing in India within meaning of Article 5 of the Constitution. The expression is not only backward class but backward class of citizens. And citizens means all those F who are mentioned in Articles 5 and 10 of the Constitution.

Thus neither from the language of Article 16(4) nor the literal test of interpretation nor from the spirit or purpose of interpretation nor the present - day social setting, warrants construction of the expression back- G ward class as backward caste. Consequently what comes out of the ex- amination from different aspects leads to conclusion that:

(1) Backward class in Article 16(4) cannot be read as backward caste. H

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

A (2) Expression 'backward class' is of wider import and there being no ambiguity or danger of unintended injustice in giving it its natural meaning it should be understood in its broader and normal sense.

(3) Backward class nnder Article 16( 4) is not confined to B erstwhile sudras or depressed classes or intermediate backward classes amongst Hindus only.

( 4) Width of the expression includes in its fold any com- munity Hindu, Muslim, Christian, Sikh, Budha, or Jain etc. as the expression is 'backward class of citizens'. c ***** ·'E'

Reason for backwardness or inadequate representation in services of D backward Hindus prior to 1950 were caste division, lack of education, poverty, feudalistic frame of society, and occupational helplessness. All these barriers are disappearing. Industrialisation has taken over. Educa- tion, through State effort and due to awareness of its importance, both, statistically and actually has improved. Feudalism died in fifties itself. Even E the Manda! Commission accents, this reality. 1 Any identification of back- ward class for purposes of reservation, therefore, has to be tested keeping in view these factors as the exercise of power is in presenti. Importance of word 'is' in Article 16(4) should not be lost of. Backwardness and inade- quacy should exist on the date the reservation is made. Reservation for a group which was educationally, economically and socially backward before F 1950 shall not be valid unless the group continues to be backward today. The group should not have suffered only but it should be found to be suffering with such disabilities. If a class or community ceases to be economically and socially backward or even if it is so but is adequately represented then no reservation can be made as it no more continues to be backward even though it may not be adequately represented in service or it may be backward but adequately represented.

"5.2 Caste restrictions have loosened considerably as a result of the rule of law introduced by the British, urbanisation, industrialisation, spread of mass education and, above all, the attainment of Independence and the introduction of adult franchise.~

INDRA SAWHNEY v. U.0.1. [R.M. SABAi, J.] 979

Ethical justification for reverse discrimination or protective benefits A. or ameliorative measures emanates from the moral of compensating such class or group for the past injustices inflicted on it and for promoting social values. Both these aspects are fully borne out from the Constitutional Assembly Debates. Anxiety was to uplift the backward classes by enabling them to participate in administration as they had been excluded by few who B had monopolised the services. Objective was to change the social face as it shall advance public welfaro, by demolishing rigidity of caste, promoting representation of those who till now were kept away thus providing status to them, restoring balance in the society, reducing poverty and increasing distribution of benefits and advantages to one and all. The compensatory principle implies that like an individual a group or class that has remained c backward for whatever reason, should be provided every help to overcome the shortcomings but once disadvantage disappears the basis itself must go. For instance there may be four groups of different nature deserving such protection. Some of it may improve and come up in the social stream within short time. Can it be said that since they were kept excluded for hundred years the compensation by way of protective benefits should continue for hundred years. That would be mockery of protective discrimination. The compensation principle, 'makes little sense unless it is involved in connec- tion with assertion that the malignant effects of prior deprivation are still continuing'. 1 The social untility of preferential lreament ex1ended to the disadvantage and weaker too should not be pushed too far on what happneed in the past without looking to the present. Such construction of Article 16(4) arises not because of what has been said by some of the American judges but on plain and simple reading of the word, 'is' in the Article.

An egalitarian society or welfare state wedded to secularism does not and cannot mean a social order in which religion or caste ceases to exist. 'India is a seculiar but not an anti-religious state. 2 Article 25 is pride of our democracy. But that cannot be basis of state activities. May be caste is being exploited for political ends. Chinnappa Reddy, J. has very graphically described it in Karnatka Third Backward Class Commission Report {1990). G

"And, we have political parties and politicians who, if

'Equal Protection of the Laws' by Polyvious G. Polyviou.

2 Seetvai - Constitutional Law of India p. ~97. H

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