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

A anything, are realists, fully aware of the deep roots of caste in Indian society and who, far from ignoring it, feed the fire as it were and give caste great importance in the choice of their candidates for election and flaunt the caste of the candidates before the electorate. They preach against caste in public and thrive on it in private". B Even Manda! Commission observed that what, 'caste lost on ritual front it gained on political front'.- In politics caste may or may not play an important role but politics and constitutional exercise are not the same. A candidate may secure a ticket on caste considerations but if he or his agent or any person with his consent or his agent's consent appeals to vote or refrain from voting on ground of religion, race or caste then he is guilty of corrupt practice under Scetion 123(3) of the Representation of People Act and his election is liable to be set aside. Thus caste, race or religion are prohibited even in political process. What cannot furnish basis for exercise of electoral right and is constitutionally prohibited from being exercised by the State cannot furnish valid basis for constitutional functioning under Article 16(4). Utilization of caste as the basis for purpose of determination of backward class of citizens is thus constitutionally invalid and even ethically and morally not permissible. Existence of caste in the past and present, its continuance in future cannot be denied but insistence that since it is being practised or observed for political purpose even though unfor- tunately it should be the basis for identification of backwardness in services is not only robbing the Constitutuion of the fresh look it promised and guaranteed but would result in perpetuating a system under ugly weight of which the society had bent earlier. F Thus, (i) backwardness and inadequacy of representation in service must exist on the date the reservation is being rnade.

G (ii) Any past injustice which entitles a group for protective discrimination must on principle of compensation or social justice be continuing on the date when reservation is being made.

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 981

'It is easier to give power but difficult to give wisdom'. Dr. Ambedkar quoted this Burke's thought in the Constituent Assembly Debate and ex- horted 'let us prove by our conduct that we have not only the power but also B the wisdom to carry with us all sectors of the country which is bound to lead us to unity'. How to effectuate this wisdom? For Article 16(4} how to determine who can be legally considered to be backward class of citizens? The answer is simple. By adopting, constitutionally permissible methodology of identification irrespective of their race, religion or caste. The difficulty, c however, arises in finding out the criteria. Although the work should normally be left to be undertaken by the State as the courts are ill equipped for such exercise due to lack of data, necessary expertise and relevant material but with development of role of courts from mere, 'superintend and supervise' to legitimate constitutional affirmative decision, this Court is not only duty bound but constitutionally obliged to lay down principles for guidance for those who are entrusted with this responsibility, with a sense of duty towards the country as the occasion demands never more than now, but with remotest intention to interfere with legislative, or executive process. What the Nation should remember is that the basic values of constitutionalism guaranting judicial independence is to enable the courts to discharge their duty without being guided by any philosophy as judicial interpretation,

"gives better protection than the political branches to the weak and outnumbered, to minorities and unpopular in- dividuals, to the inadequately represented in the political process." 1

Before doing so it is necessary to be stated, at the outset, that identification of backward classes for purposes of different States may not furnish safe and sound basis for including all such groups or collectivities for reservation in services under the Union. Reason is that local conditions play major part in such exercise. For instance habitation in hills of U.P. was upheld as valid basis for identifying backwardness. Same may not be true of residents of hills in other States. Otherwise entire population of

A. Cox - The Court and the Constitution. H

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

A Kashmir may have to be treated as backward. In Kerala State most of the Muslims are identified as backward. Can this be valid basis for other States. Even the Manda! Commission noticed that some castes backward in one State are forward in others. If Stale list of every State is adopted as valid for central services it is bound to create confusion. One of the apparent B abuse inherent in such inclusion is that it is apt to encourage paper mobility of citizens from a Slate where such class or caste is not backward to the State where it is so identified. This apart such inclusion may suffer from constitutional infirmity. Many groups or collectivities in different States are continuing or have been included in the State list due to various considera- tions political or otherwise. State of Karnataka is its best example. Com- c mission after commission beginning from Gowda Commission, Venkata- swamy Commission and Havanur Commission despite having found that some of the castes ceased to be backward they continue in the list due to their political pressure and economic power. Ghanshyarn Shah 1 in 'Social Backwardness and Politics of Reservations', has pointed out, 'Among the sudras there are peasant castes, artisan castes and nomadic castes. Subjec- tive perception of one's position in the 'varna' system varies and changes from time to time, place to place and context to context. For instance, the Paridars of Gujarat were confidered sudras a few decades ago, but not they call themselves vaishyas, a ·• are acknowledged as such by others. It is significant that they are not .. ave-nots. Similar is the case of Vokkaligas and Lingayats of Karnataka, Reddies and Kammas of Andhra Pradesh, Marathas of Maharashtra and to some extent Yadavas of Bihar.' Yet these castes or group have been identified as backward class in their State. Whether such inclusion on political, economic and social condition is justified in State list or not but inclusion of a group or collectivity in list of socially and educationlly backward classes, which is a term narrower and different than backward class for services under the 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 of universal application to members of every community and which may be adopted by State, as well, after adjusting it with prevalent local conditions.

Ours is a country comprising of various communities. Each com~

H ·Economic and Political Weekly" Vol. 26 (1991) p. 601.

INDRA SAWHNEY v. U.0.1. [R.M. SAHAI, J.] 983

munity follows different religion. Centuries of historical togetherness has A influenced each other. Caste system which is peculiar to Hindus infiltrated even amongst Muslims, Christians, Sikhs or others although it has no place in their religion. The Encyclopedia Americana International Edition describes the development thus,

"All important communities, including the Muslims., Chris- B tians, and Sikhs, have some sort of caste scheme. These schemes are patterned after the Hindu system, since most of these people originally came from Hindu stock. The large-scale conversions that have been going on for cen- turies have modified Indian caste society. Thus traditional c Hindu commensal and connubial rituals and emphasis on inherited social status or rank though generally rejected in the Islamic or Christian religious ethic, nevertheless operate on social plain in these societies in India. In India social rites and customs very from region to region rather than from religion to religion. Among the Muslims, the Sayids, Sheikh, Pathan, and Momin, among others, func- tion as exclusive endogamous caste groups. The Christians are divided into a number of groups, including the Chal- dean Syrians, Jacobite Syrians, Latin Catholics, Marthom Syrians, Syrian Catholics, and Protestants. Each of these groups practices endogamy. Among the Catholics, the Syrian Romans and the Latin Romans generally do not intermarry. The Christians have not wholly discarded the idea of food restrictions and pollution by lower caste mem- bers. When lower caste Hindus were converted to Chris- F tianity a generation or two ago, they were not allowed to sit with high caste christians in Church, and separate chur- ches were erected for them. 1'

On the social plain therefore there has been lack of mobility from one group to other. Amongst Hindus it has been more marked. fnter-se G discrimination has been worse. Untouchables prior to 1950 have been victims of social persecutions not ony by the twice born but even the so- called intermediate backward classes. But what appears to be common in each community is that the caste divide is more or less occupational based. A washerman or a barber, a milkman or an agriculturist, are all known H

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

A :':amon~ Hindus by castes and amongst others by occupation. In fact they are. all occupational. Very genesis of Chatur Varna was occupational.

"According to Kroeber, castes are special form of social classes, 'which in tendency at least are present in every society. Castes differ from social· classes, however, in that B they have emerged into social consciousness to the point that custom and law attempt their rigid and permanent_ separation from one another' .......... 'The jatis which developed later and which continued to grow in number have their economic significance; they are for t\le most part c occupational groups and, in the traditional village economy, the caste system largely provides the machinery for the exchange of goods and services."1

But these "rigid stratifications are breaking today. The social inter-se bar- D riers are rapidly disappearing. Values are fast changiog. In fact many of the b&ckward classes as observed by Sri Naik in his separate note to the Manda! Commission Report 'co-existed since times immemorial with upper castes and had therefore some scope to imbibe better association and what all its connotes'. Take for instance the list of the 'Intermediate Backward Class' where traditional occupation, according to Sri Naik has been, E 'agriculture, market gardening, betal leaves, grovers, pastoral activities, village industries like artisans, tailors, dyers and weavers, petty business- cum-agricultural activities, heralding, temple service, toddy selling, oil mongering, combating, astrology etc. etc.'. Their backwardness has been primarily economic or educational. Mobility, too, occupational or profes- F sional has not been very rigid. An agriculturist or an artisan, a dyer or weaver had the occupational freedom of moving in any direction. Con- sideration for marriage or social customs may be different. But that prevails in every strata of society. One sect of a caste or community Hindu or Muslim, or even Christian, forward or backward does not prefer marrying G in another sect what to say of caste. But these considerations are not relevant for identifying backward class for public employment. Lack of eclucation, at least among so~called intermediate backward classes, was more due to personal volition than social ostracisation. Historical social backwardness has already been taken care of by providing reservatkm to

H The Caste System in India hy Rajendra Pandey, page 8.

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 985

SC/ST and empowering President to include any group or collectivity found A to be suffering from such disability. Same yardstick cannot be applied for socially and educationally backward class for whom the President has been empowered to appoint· a Commission and who only after identification are to be deemed to be included as SC and ST by virtue of Article 338(10). From the preceding discussion it is clear that identification of such class cannot be caste based. Nor it can be founded, only, on economic considera- B 1 tions as 'Mere poverty' cannot be the test of backwardness. With these two negative considerations stemming out of constitutional constraints two positive considerations, equally important and basic in nature flow from principle of constitutional construction one that the effort should, primari- ly, be directed towards finding out a criteria which must apply uniformly C to citizens of every community, second that the benefit should reach the needy. Various combinations excluding and including caste as relevant consideration have been discussed in different decisions which need not be mentioned as occasion to examine social and educational backwardness in public services and that also in union services never arose. D In sub-paragraph (ii) of paragraph 12.8 e>.tracted earlier the Manda! Commission recommended occupational identification for non-Hindus if the community was traditionally known to carry on the hereditary occupa- tion of their counterpart amongst Hindus and included in the test of OBC. The Commission thus recognised occupational divide among Hindus. If E occupation amongst Hindus can be basis for identification of backwardness among non-Hindus then why cannot it furnish basis for identification amongst Hindus itself.

F Ideal and wise method, therefore, would be to mark out various occupations, which on the lower level in many cases amongst Hindus would be the caste itself. Find out their social acceptability and educational standard. Weight them in the balance of economic conditions. Result would be backward class of citizens needing genuine protective umbrella. Group or collectivity which may thus emerge may be members of one or G the other community. Advantage of occupational based identification would be that it shall apply uniformly irrespective of race, religion and caste. Reason for accepting occupation based identification is that prior to

Supra (45). H

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

For instance, priests either in Hindus or Mullahs in Muslims or Bishops or Padris amongst Christians or Granthi in Sikhs are considered to be at the top of hierarchal system. They cannot be considered to be backward in any community not because of their religion but the nature of occupation. Similarly the untouchables became outcaste due to nature of the job they performed. On lower level whether it is barber or tailor,

F washerman or milkman, agricultural class or artisan they are a group or class who can be identified in any community. Identifying them by caste - "12.13 There is a notion of hierarchy among the Muslims, though it is hard to say how far the criterion of the ranking among them can be said to conform to the Hindu model ..... lt is clear that castes exist as a basis of social relations amongst them (Muslims) but its form has been greatly weakened and modified as it differs from the Hindu model in certain 1'~•,~ils." - Dr. Imtiaz Ahmed. G 2 "12.11 There is no doubt that social and educational backwardness among non-Hindu communities is more or less of the same order as among Hindu communities. Though caste system is peculiar to Hindu society yet, in actual practice, it also pervades the non-Hindp communities in India in varying degrees." 3 Encyclopaedia of Social sciences Vol. 3. H 4 'Equality' by R.H. Tawney.

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 987

may mean that a Muslim or Christian who for generations has been A carrying on same occupation as his counterpart amongst Hindus cannot be identified as backward class. And if it is done then for Hindus it would be caste based whereas for others occupational. How far that would be legal and constitutional is one matter but if the yardstick of occupation is applied to every community the identification would be uniform without exclusion of any. For instance weavers or washerman. They may be both Hindus and B Muslims. It would be unfair to include Hindu washerman and exclude Muslim washerman.

Having adopted occupation as the starting point next step should be to ascertain the social acceptability. A lawyer, a teaching and a doctor of any community whether he is a teacher of primary school or University, a Vaid or Hakim practising in the village or a professor in Medical college always commands social respect. Similarly social status amongst those who perform lower job depends on the nature of occupation. A person carrying on scavenging became an untouchable whereas others who were as lower as untouchable in the order became depressed. For instance coboler. Sarne did not apply to those who carried on better occupation. A person having landed property and carrying on agricultural occupation did not in social hierarchy command lesser respect than the one carrying on same occupation belonging to higher caste. But backwardness should be traditional. For instance only those washerman or tailor should be considered backward who have been carrying on this occupation for generations and not the modern dry cleaner or fashion tailors. ··the collectivity satisfies both the tests then apply the test of education. What standard of education should be adopted should be concern of the State. Existence of, both, that is social and educational backwardness for a group or collectivity is indicated by Article 15(4) itself. F Use of such expression was purposive. Mere educational or social backwardM ness would not have been sufficient as it would have enlarged the field thus frustrating the very purpose of the amendment. That is why it was observed in Ba/aji that the concept of backwardness was intended, 'to be relative in the sense that any class who is backward in relation to the most advanced classes G should be included in it. And the purpose of amendment could be achieved if backwardness under Article 15(4) was understood as comprising of social and educational backwardness. It is not either social or educational, but it is both social and educational'. Reading the expression disjunctively and per- mitting inclusion of either socially or educationally backward class of citizens would defeat the very purpose. For instance some of the so-called higher H

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

A castes who by nature of their occupation or caste have been accepted by society to be socially advanced may enter because of the group or collectivity having been educationally backward. Many agricultural occupationists both in South and North have chosen to remain educationally backward even though by virtue of their landed property they have always been compared to any higher class. Can such persons be permitted to take benefit of such B benign measures. Nol on the language, purpose and objective of these provisions.

After applying these tests the economic criteria or the means test should be applied. Poverty is the prime cause of all backwardness. It C generates social and educational backwardness. But wealth or economic affluence cuts across all. A wealthy man irrespective of caste or community needs no crutches. Not in 1990 when money more than social status and education have become the index. Therefore, even if a group or collectivity is not educated or even socially backward but otherwise rich and affluent then it cannot be considered backward. There is no derth of class or group who by the nature of the occupation they have been pursuing are economi- cally well off. Including such groups would be doing injustice to others. Thus occupation should furnish the starting point of determination of backward class. And if in ultimate analysis any Hindu caste is found to be occupationally, socially, educationally and economically backward it should be regarded as eligible for benefit under Article 16(4) because it would be within constitutional sanction.

F Identification alone does not entitle a group or class to be entitled for protective benefits. Such group or collectivity should be inadequately represented. Use of such words as a equate or inadequate are no doubt wide and vague and their meaning has to be gathered, 'largely on the point of view from which the facts may be proved are reconsidered' .1 Bu.t from G the purpose and objective of Article 16(4) a collectivity or group which is found to be backward cannot qualify for being included if it is adequately represented. Word 'any' has great significance. In wider sense it extends to and includes all group or collectivity, which is as much 'any' backward dass as any singularity. In the larger sense c~mprising of entire plurality it

HI Re lJatschek's Patents, ex Pzcrennex, (1909) 2 ch. 68.

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 989

continues and may continue but in the limited sense the group may keep on getting in and out depending on continuance of those conditions which entitled it to be determined as backward. A government of a State or the Central Government may on evaluation after five or ten years direct a group or collectivity to be excluded from the list of backward classes if it finds it adequately represented. What is adequate representation is of course the primary concern of the government. But the exercise should be objective. For instance in some States it was found by Commissions ap- pointed by their governments that certain castes were adequately repre- sented. Yet because of extraneous reasons the government had to bow and include them in the list of backward classes. Such inclusion is a fraud of constitutional power. Any citizen has a right to challenge and court has obligation to strike it down by directing exclusion of such group from the backward class. Inadequacy provides jurisdiction not only for exercise of power but its continuance as well. If that itself ceases to exist the power cannot be continued to be exercised. Where power is coupled with duty the condition precedent must exist for valid exercise of power. Mere D identification of collectivity or group by a Commission cannot clothe the government to exercise the power unless it further undertakes the exercise of determining if such group or collectivity is adequately or inadequately represented. The exercise is mandatory not in the larger sense alone but in the narrower sense as well. E *****

• 'G' (1) F More important that deiermination of backward class is the proportion

r in which reservation can be done as it is not only a social or economic problem or the question of empowering but a constitutional and legal issue

I which calls for serious deliberation. Although political statemanship of the framers of the constitution intended to confine it to 'minority of seats' the judicial pragmatism raised it 'broadly and generally' to less than 50% in G Balaji and not beyond that in T. Devadason v. Union of India [1964] 4 SCR

680. Effect of these two decisions was that the reserved and non-reserved seats both for purposes of admission in educational institution under Article 15(4) and for appointment and posts in Article 16(4) were divided in half and half. But once the reservation climate spread in the country's environment it H

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

A took over the political set up of different States to provide for reservation for different groups for different reasons. And legal justification for such reser- vation was provided for by the courts, either on the touchstone of Article 14 being a reasonable classification or under Article 16(1) as preferential treat- ment for disadvantaged groups. If in Chiera Ghosh & Anr. v. Union of India, B AIR 1970 SC 35, the provision for government nominees in medical colleges was upheld, 'as the government which bears the financial burden of running medical colleges' could not be, 'denied the right to decide from what sources the admission will be made' then D.N. Chanchala v. State of Mysore, AIR 1971 SC 1762, did not find it unreasonable to extend the principle of preferential treatment, of socially and educationally backward in Article 15( 4), to children of political sufferers as 'it would not in any way be improper if that principle were to be applied to those who are handicapped but do not fall under Article 15(4)'. The reservation in favour of wards of defence personnel was upheld as a reasonable classification in Subhashini v. State of Mysore, AIR 1966 Mysore 40 as the reservJtion was in national interest. Result of such extensions and justification was multiplication of categories and withdrawal of more and more seats and posts from open competition. And when observations were made in Thomas that 50% was, 'a rule of caution' and, 'percentage of reservation in proportion to population did not violate Article 16(4)', a virtual go by was given by various states to the balancing equality created by courts and reservations were made much beyond 50% E and the High Courts had no option but to uphold them. Thus the combined effect of these principles, developed by Balaji and Davadason, on the one hand and Chiera Ghosh, Chanchala and Thomas on the other was that reservation up to 50% under Articles 15(4) and 16(4) and up to, 'reasonable extent' under Article 16(1). Under one it became SC/ST and RC and under the other wards of Military and Defence personnel, Jagdish Rai v. State of F Haryana AIR 1977 Haryana 56, Political, 1 sufferers, sportsman,2 Children of MISA, State of Kamataka v. Jacob Maltew ILR (1964) 2 Kerala p.53 and DSIR, Chhotey Lal v. State of U.P. AIR (1979) Allahabad 135, detenue etc. Is this sound either constitutionally or legally or socially?

Article 16(1), (2) and (4) is extracted below:

I Supra (94). H 2 Subhashini (supra).

INDRA SAWHNEY v. U.O.L [R.M. SAHA!, J.] 991

"16. Equality of opportunity in matters ·of public A employment--

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. B (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. I (4) Nothing in this article shall prevent the State from c ) making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.' D -· Originally this Article as introduced in the Constituent Assembly was Article 10 and its sub-article (3) identical to sub-article (4) of Article 16 provided for reservation, 'in favour of any class of citizens'. It was the Drafting Committee which qualified the expression, 'class of citizens' by adding the word 'backward' before it. Effect of this addition was that clause got narrowed and the reservation could be made only for those class of citizens who could be grouped as backward. Putting it the other way the framers of the Constitution decided against expansive reservation which under original proposal could have extended to any class of citizens. What was thus consciously and deliberately given up by exercising the option in favour of only those class of citizens who could be identified as backward then reservation in favour of any other class of citizens cannot legitimately and legally be accepted as valid. Extending it to other class of citizens under cover of reasonable classification would be constitutional distortion. What should be deemed to be prohibited in the light of historical back- ground cannot be brought back from the backdoor on principle developed by the American courts under Equal Protection Clause as they had to rise to the occasion due to absence of a provision like Article 16(4), and the fractured interpretation put in the Slaughter house cases, 1 which eroded the very foundation of Equal Protective clause 'mainly intended for the

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

A benefit of Negro freedom'.

Reservation co-related with population was not accepted even by the Constituent Assembly. On plain construction inadequacy of representation cannot be the measure of reservation. That is creative of jurisdiction only. In fact Dr. Ambedkar's illustration while persuading all sections to accept li' B the drafting committee proposal is very instructive. • t 'Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts c under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfac- tory from the point of view of giving effect to the first principle, namely, that there shall be equality of oppor- tunity? It cannot be in my judgment. Therefore the seats D to be reserved, if the reservation is to be consistent with sub-c]ause (1) Article 10, must l--e confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation."

Even otherwise if the framers would have intended to provide for reserva- E tion to extent of backwardness of the population it would have been simpler to use the expression, 'in proportion to it' after the word 'backward class i of citizens' and before 'is not' adequately represented. Article 16(4) then would have read as under: -

F "Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens in proportion tv ~·- it is not adequately represented in the services under the State 11 • G No rule of interpretation in absence of express or implied indication permits such substituted reading.

In Thomas, (supra 46) Mathew J., introduced concept of proportion- al equality from two American decisions Griffin v. fllionois 351 US (12) H and Harper v. Virginia Board of Educations, 383 US 66311966[. None of the

INDRA SAWHNEY v. U.O.I. [R.M. SAHAf, J.] 993

decisions were coocerned with affirmative action. The one related to payment of charges for translation of manuscript in appeal and other with levy of poll tax at uniform rate indiscriminately. In view of clear phraseol· ogy and the background of enactment of Article 16(4) any interpretation of it on ratio of American decisions cannot be of any help. Our constitution does not approve of proportional representation either in services or even in Parliament as is illustrated by Article 331 of the Constitution which i empowers the President to nominate not more than two members of the ! Anglo-Indian community to the House of People, irrespective of their population, if the)r'lfe not adequately represented. Same is the theme of Dr. Ambedkar's speech, in Constituent Assembly, extracted earlier. For the same reasons the observation of Fazal Ali, J. in Thomas (supra), C

' ....... Decided eases of this Court have no doubt -laid down that the percentage of reservation should not exceed 50%. As I read the authorities, this is, however, a rule of caution and does not exhaust all categories. Suppose for instance D a State has a large number of backward classes of citizens which constitute 80% of the population and the Govern- ment, in order to give them proper representation, reserves 80% of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits of clause (4) of Article 16 . The ans we; must necessarily be in the negative."

cannot be accepted as correct construction of Article 16(4). True as observed by Krishna Iyer, J., in Soshit Karamchari {Supra) and Chinnappa Reddy, J., in Vasantha Kumar (supra) that there is no consitutional provision restricting reservation to 50% but with profound respect, the debates in the Constituent Assembly, the provisions in the Constitution do not support the construction of Article 16(4) as empowering government to reserve posts for backward class of citizens in proportion to their population. Any construction of Article 16{4) cannot be divorced without taking into account Article 16{1). Equality in services has been balanced by providing equal opportunity to every citizen at the same time empower- ing the State to take protective measure for the backward class of citizens who 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 become both important and H

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

A ' responsible, 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 not adequately represented but not to grant proportional representation, a typical British concept rejected by our Bounding Fathers.

Equality has various shades. Its understanding and application have been shaped by social, economic and political conditions prevailing in the society. The reigning philosophy since 18th century has been the State's c responsibility to reduce disparities amongst various sections of the .popula- tion and promoting a just and social order in which benefits and advantages are evenly distributed. To achieve this basic objective various theories have been advanced from time to time. The formal equality advanced by Aris- totle that equals should be treated equally and unequals unequally was as much result of social and economic .conditions as the Rawls theory of justice or the Dworkin's concepts of right of all to treatment as equals. Liberty and right to equality taken individually may appear to pull in different directions. But viewed as part of justice and fairness the two are the primary tenets of modern egalitarian society. The real difficulty is translating them into practical working. The American concept of 'equal but separate' doctrine is the best illustration of distance between theory and practice of equal protection. The recognition and realisation that neither all men are equal nor are the circumstances in which they are born or grow are same gave rise to classification and grouping of persons similarly situated and extending them equal or same treatment. But the classification has to be reasonable and rational bearing a just relation with the legislative purpose and should not be invidous or arbitrary. In our constitutional scheme the classification in matters of employment or ap- pointment in the services has been done constitutionally. From the entire class of all citizens any backward class has been classified for beneficial or benign treatment. The legislature or executive therefore cannot transgress it. Since the Constitution treats all citizens alike for purposes of employ- ment except those who fall under Article 16(4) any further classification of grouping for reservation would be constitutionally invalid. No legislative exercise can transcendent the constitutional barrier. For valid classification legislature or executive measures must be co-related with legislative pur- H pose or objective. Once the Constitution itself unfolded the purpose of

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.J 995

achieving the goal of equality by permitting reservation for backward A classes, only, any further reservation being beyond constitutional purpo1e would be impermissible and per se invalid.

Abstract equality is neither the theme nor philosophy of our Con- stitution. Real equality through practical means is the avowed objective. Atoning for the past injustices on backward classes through Constitutional B mechanism was.morality raised to legal plain. Admonition to State not to deny equality before law or equal protection of laws found on sound public policy, is in reality the measure of fundamental right which every person enjoys. But, principle of the equal protection of law does nor mean that, 'every law must have universal application to all persons who are not by C nature, attainment or circumstance, in the same position', Dhirendra Kun1ar Manda/ v. 77ie Supdt. & Remembrancer of Legal Affairs to the Govt. of West Bengal & Anr. [1955] J SCR 224 and the varying needs of different classes of persons require special treatment. Principle of reasonable clas~ification was developed by theorists and courts to enable State to function effectively by classifying reasonably. But the theory developed by Tllssman and Breck 1 D that equal Protection clause really dealt \vith the problem with the reiation of two classes to each other one of individuals possessing the definite trait and the other of individuals tainted by the mischief at which the law aims said to be, 'the first con1prehcnsivc analysis of the Equal Protection Clause' may be applicable while collsidering the scope of Article 14 but once the constitution n1akers treated cn1ployment in services separately by creating fundamental right in favour of all citizcn5 in pursuance of the ideal of Preamble to secure to a!I its citizens equality in oportunitY. and status then it has to be understood in its O\Vn perspective. Various sub-articles of Article 16 specia!Iy clause 4 indicates constitutional classification and creation of two classes one dealt with in Article 16(1) and the other in Article 16(4). Principle of reasonable classification for purposes of creating another class or planting one class in another would he constitutionally infirm.

All the same the legislative anxiety of affirmative acti~n by preferen- G tial treatment to disadvantaged group lagging behind may not be doubted. Difference bet\veen reservation and preferential treatment is that in one a • group or class or collectivity is separately provided for and the competition

"l'ht: Equal Protection of the Laws". 37 California Rev. 341. H

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

A is amongst them only. Whereas in preferential treatment the collectivity is part of the same group but it is permitted some weightage due to social, 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 B the same compartment. Validity of one depends on constitutional sanction whereas the second has to stand on test of reasonableness. For instance the reservation of backward class cannot be assailed as being violative ~f constitutional guarantee whereas preferential treatment can be upheld only if it is reasonable with the nexus it seeks to achieve. Article 16 unlike Article 14 is a positive right of equal opportunity. Therefore, any preferen- c tial treatment shall have to be tested in the light of the constitutional objective the Article seeks to achieve. That is what is its natural, operation and effect. Reservation made for backward class of citizens achieves the constitutional goal of achieving equality of opportunity of all. Same cannot be said for others. Any reservation for any other class would be, as already D ·explained, contrary to constitutional objective thus invalid. Wards of military personnel or political sufferers or any other class cannot be extended the benefit of benign discrimination as that would be violative of eqllality of opportunity. In absence of any objective or purpose discernible from the Constitution the State action would be liable to be struck down for absence of necessary co-relation between constitutional purpose and its means. Nexus such as national purpose or principle contained in Article 15(4) would not justify such action. Even preferential treatment by way of weightage may be permissible in very limited cases and any such measure would be liable to strict judicial scrutiny. Principle of Article 14 of reasonable classification may be relevant only to limited extent as to whether it is backed by reason and is justified but since it has to be tested further on touchstone on Article 16(1) the reasonable classification must be sc tailored as not to contravene the right to equal opportunity.

No provision of reservation or preference can be so vigorously pur- G sued as to destroy the very concept of equality. Benign discrimination or protection cannot under any constitutional system itself become principle clause. Equality is the rule. Protection is the exception. Exception cannot exhaust the rule itself. True no restriction was placed on size of reservation. But reason was the consensus understanding that it was for minority of H

INDRA SAWHNEY v. U.0.1. [R.M. SAHAf, J.] 999

to be specific the forward group is not as a result of any historiCal injustice or undue advantage earned by his forefather or discrimination against the backward class, but because of the years of service that are put by an employee, in his individµal capacity. This entitlement cannot be curtailed by bringing in again the concenpt of victimisation.

Equality either as propagated by theorists or as applied by courts seeks to remove inequality by, 'parity of treatment under parity of condition' .1 But once in 'order to treat some persons equally, we must treat them differently2 has been done and advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in c the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it.

Constitutional sanction is to reserve for backward class of persons. That is class or group interest has been preferred over individual. But promotion from a class or group of employees is not promoting a group D or class but an individual. It is one against other. No forward class versus backward cla:ss or majority against minority. It would, thus, be contrary to the Constitution. Brother Kuldip Singh, for good and sound reasons has rightly opined, that, Rangachri cannot be held to be laying donw good law. E * * * * * '!'

Reservation, for, 'economically backward sections of the people who are not covered by any of the existing schemes of reservation', again, raises an important issue. De facto difficulties in determining such backwardness stands established by failure of the government to evolve any workable criteria even aftor lapse of one year since, 25th September, 1991, the date on which the order dated 23th August 1990 directing reservation for backward class was amended and it was announced that, 'the criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.' But the de jure hurdles

C. J. Ray in Thomas (Supra).

2 Justice Black Burn in Bakke (supra) page 844. H

1000 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A appear, even, greater. Any reservation resulting in curtailing right of equal opportunity is to withstand the test of equal protection or benign dis· criminatioo. Latter has been permitted for a class which had suffered injustices in the past and is suffering even now. It is an atonement of past segregation and discrimination such as Negroes in America and SC/ST of our country. And is being extended even to those who could legitimately B be considered to be backward class. Since Article 16(4) has a constitutional purpose and is to operate only so long the goal is not achieved economic backwardness does not qualify for such protective measure. As even if such a class or collectivity is held to fall in the broader concept of the expression · backward class of citizens it would not be eligible for the benefit as it would c be incapable of satisfying the other mandatory requirement of being inade- quately represented in services without which the State cannot have any jurisdiction to exercise the power. Art. 16(4) thus 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.

Is it possible to reserve under Art. 16(1)? Detailed reasons have been given, earlier, against any reservation under cover of doctrine of reasonable classification. Eradication of poverty which, 'is not to be exalted or praised, but is an evil thing which must be fought and stamped out' • is one of the ideals set out in the Preamble of the Constitution as it postulates to achieve economic justice and exhorts the State under Article 38(2) to, 'minimise the inequality of income'. All the same can the State for this purpose reserve posts for the economically backwards in service. Right to equal protection of laws or equality before law in, 'benefits, and burdens' by operation of law, equally, amongst equals and unequally amongst unequals is firmly rooted in concept of equality developed by courts in this country and in America. But any reservation or affirmative action on economic criteria or wealth dis- crimination cannot be upheld under doctrine of reasonable classification. Reservation for backward class seeks to achieve the social 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. Same cannot be said for rich and poor. Indigence cannot be rational basis for classification for public employment.

H Jawaharlal Nehru, quoted from Dorothy, Forman (ed.) Nehru.

INDRA SAWHNEY v. U.0.1. [R.M. SAHA!, J.] 1001

Any legislative measure or executive action operating unequally be- A tween rich and poor has been held to be suspect. A provision requiring a person to pay for trial manuscript before filing criminal appeal was struck down in Griffin v. Illinois 351US12 (195) as it amounted to denial of right of appeal to poor persons. In Harper v. Virginia Board of Elections 383 US 663 (1966] Poll tax for voting was invalidated as, 'wealth, like race, creed or colour, is not germane to one's ability to participate intelligently in the B electoral process'. Protection was given to the appellants in effect or consequence of equal protection clause. Duty of State to protect against deprivation due to poverty should not be confused with States obligation to treat everyone uniformly and equally without discrimination. Protection against application of law due to difference in economic condition, cannot c ) be equated with classification based on disproportion in wealth. Former is in realm of justice and fairplay whereas latter is equal protection to which every one is entitled. In the former unjust application of law may be cured by removing the offending part and thus apply the law uniformly to rich and poor. Whereas in latter the classification has to be justified on the D ' nexus test. Poverty may have relevance and may furnish valid justification while dealing with social and economic measure. Any legislation or execu- tive measure undertaken to remove disparity in wealth cannot be suspect but a classification based on economic conditions for purposes of Article 16(1) would be violative of equality doctrine. E More backward and backward is an illusion. No constitutional exer- cise is called for it. What is required is practical approach to the problem. The collectivity or the group may be backward class but the individuals from that class may have achieved the social status or economic affluence. Disentitle them from claiming reservation. Therefore, while reserving posts for backward classes, the departments should make a condition precedent that every candidate 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 political or social or economic or if their parents are in higher services then such individuals should be precluded to avoid monopolisation of the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated. And once a group or collectivity itself is found to have achieved the constitutional objective then it should be excluded from the list of backward class. H

1002 SuPREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A ·Therefore, (1) No reservation can be made on economic criteria.

(2) It may be under Article 16{4) if such class satisfies the test of inadequate representation. B {3). Exclusion of creamy layer is a· social purpose. Any legislative or executive action to remove such persons in- . dividually or collectively cannot be constitutionally invalid.

Various infirmities were highlighted in the report of the Second Backward Class Commission and the consequent invalidity of the govem- D ment order issued on it. Attack on the report varied from the reference being beyond Article 340 to manner and method of ascertaining backward- ness by issning questionnaire to hardly one per cent of the population, interviewing interested and biased persons only, relying on obsolete material such as caste census of 1931, importing personal knowlege, re- writing Hindu Varna by adding intermediate or middle caste between twice E born and sudra, working out backward population erroneously as in 1931 only 67% of the population was Hindu and if 22% were SC and 43% backward then the remaining were 20% inflating backward ·classes by conjectures and assnmptions as Frrst Commission identified 2399 whereas the Second determined it at 3743 and the Anthropological Survey of India F _ pnblished a project report identifying only 1057 backward classes, and - adopting i:aste as the sole and the only criteria for identifying backwardness etc. Action of the Govt. in accepting the report and issning the Government • Order 'YllS challenged for exhibition of sudden alarcity not on· objective consideration but for extraneous reasons, acceptance of the report without any discussion or debate in the Parliament which was the least considering G the far-reaching consequences of st.di report, acting by executive order instead of legislative measure, when reservation for bad vard class was being:made in Union services for the first time, propriety of basing the action on a report rendered 10 years earlier without any regard to social and economic changes in the meantime .when such period is normally l{ considered sufficient for re>iew and re- assessment of continuance of such

INDRA SAWI-!NEY v. U.0.1. [R.M. SAHA!. J:] 1003

actions, etc. A Many of these challenges appear to be well founded but any discus- sion on it is unnecessary for two reasons, one failure of any objective consideration of the report by the Government before issuing the orders and others some of the basic infirmities have been dealt with while dealing with the issue of identification of backward classes. Above all what is not B provided in the Constitution, whuc was not accepted by the Government in 1956 what has not been approved by this Court even for backward classes in Article 16{4) was adopted by the Commission as the basis in its report submitted in 1978 for 'socially and educationally backward classes', an expression narrower and different than 'backward classes' and imple- C mented in 1990 by the Government without even placing it before the Parliament or any objective consideration by it. An order reserving posts can no doubt be made even by the executive but the decision being of utmost importance as reservation was being made in services under the Union for the first time the propriety demanded that it should have been D placed before the Parliament. For growth and development of healthy conventions and traditions no provision in the Constitution or statute is needed. It may, however, not be out of place to mention that where rules framed under rule 309 exist no executive order in violation of it can be passed. E Vital issues, by agreement of both sides, relating to reservation and preferential treatment in services have been. diiieJlss.ed. On many of these this Court, to use the words of the Constitution Bench, has not spoken with, 'one voice'. Therefore, these public interest petitions, filed in unfortunate circumstances which are not necessary to be narrated, were referred to be heard by a larger bench of nine judges, 'to finally settle the legal positions relating to reservations'. ·-- Finality, is necessary not only for courts or tribunal but for th 0 • guidance of the affirmative action ameliorative or preferential by the Legislature or the Executive. What should not be lost sight of is if history of discrimination and segregations of the SC/ST and the socially, educa- tionally and economically backward in the darkest chapter of our social history, with no parallel any where in the world, then constitutional therapy to eradicate it root and branch too is unparalleled and even most developed and democratically advanced democracies, cannot match the H

1004 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A socially oriented effort to achieve an egalitarian society. Practical equality or equality by result is the approach. Effort is to usher in a progressive society by bridging the gap between the forward and backward by demolishing the social barriers and enabling the lowest to share the power , to remove inferiority and infuse feeling of equality. But without sacrificing efficiency and disturbing the equality equilibrium by confining it to minority B of posts and treating them preferentially for such length of time, as a self operating mechanism, coming to an end once the constitutional objective of enabling them to stand on their own is fulfilled. Why reservation policy in services or the benefits of welfare measures pursued by different States for the weaker sections of the society have not percolated to the needy and c deserving at the rock bottom is more a political issue than constitutional or legal. But no effort can succeed unless the policy makers eschew extraneous considerations and tackle the problem sincerely and with UD· derstanding. So long the identification of the backward class is not made properly and practically it would serve the vested interest only. And the D 'halves' among Sudra or the intermediate backward classes shall not permit it to reach the halve-nots the real and gen~ine backward classes.

No exception can be taken to the recommendations of the Manda! Commission for reservation for backward class of citizens in services by the Union. But commissions are only fact finding b Jdies. The constitutional E responsibility of reserving posts rests with the government. Unfortunately neither in 1990 nor in 1991 this duty was discharged constitutionally or even }egally. Whether the report was within the term of reference and if the Commission in identifying socially and educationally backward class repeated the same mistake as was done by the first Commission and if the F Commission could adopt two different yardsticks for determining back- wardness among Hindus and non-Hindus were aspects which were re· quired to be gone into by the Government before issuing any order. The exercise of power to reserve is coupled with duty to determine backward ' class of citizens and if they were adequately represented. If the Govern· ment failed to discharge its duty then the exercise of power stands vitiated. G No further need be said except to extract following words of William 0. Douglas-

"Judicial Review gives time for the sober second thought"

INDRA SAWHNEY I'. U.0.1. [R.M. SAHA!, J.j 1005

CONCLUSIONS A Both the impugned orders issued by the respective governments in 1990 and 1991 reserving appointments and posts for socially and educa- tionally backward classes of citizens, without discharging their constitution- al obligation of examining if the identification of backward class by the Commission was in consonance with constitutional principle and B philosophy of the basic feature of the constitution and if the group or collectivity so identified was ade4uately represented or not which is the sine qua non for the exercise of the power under Article 16(4), are declared to be unenforceable.

(1) Reservation in public services either by legislative or executive c action 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 review in every matter which is constitutional in nature or has potential of constitutional repercussions. D ,; (2) (a) Constitutional bar under Article 16(2) against state for not ' discriminating on race, religion or caste is as much applicable to Article 16(4) as to Article 16(1) as they are part of the same scheme and serve same constitutional purpose of ensuring equality. Identification of back- ward class by caste is against the Constitutional. E

(b) The prohibition is not mitigated 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. Such identification is apt to become arbitrary as well as the idicators evolved and applied to one commu.nity may be equally applicable to other community which is excluded and the backward class of which is denied similar benefit.

Identification of a group or collectivity by any criteria other than caste, such as, occupation cum social cum educational cum economic criteria ending in caste may not be invalid.

(c) Social and educational backward class under Article 340 being narrower in import than backward class in Article 16( 4) it has to be construed in restricted manner. And the words educationally backward in this Article cannot be disregarded while determining backwardness. H

1006 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.R.

A (3) Reservation under Article 16(4) being for any class of citizens and citizen having been defined in Chapter II of the Constitution includes not only Hindus but Muslims, Christians, Sikhs, Buddhists Jains etc. the principle of identificat;on has to be of universal application so as to extend to every community and not only to those who are either converts from Hinduism or some of who carry on the same occupation as some of the B Hindus.

(4) Reservation being extreme form of protective measure or affirm- ative action it should be confined to minority of seats. Even though the Constitution does not lay down any specific bar but the constitutional C philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50%.

(5) 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). D (6) Reservation in promotion is constitutionally impermissible as, • once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating E equals unequally. It would not be eradicating the effects of past discrimina- tion but perpetuating it.

(7) Economic backwardness may give jurisdication to state to reserve provided it can find out mechanism to ascertain inadequacy of repre-. sentation of such class. But such group or collectivity does not fall under .... F Article 16(1).

(8) Creamy layer amongst backward class of citizens must be ex- cluded by fixation of proper income, property or status criteria.

Reservation by executive order 1nay not be invalid but siJ?-ce it was ·G being made for the first time in services under the Union propriety demanded that it should have been laid before Parliament not only lo lay down healthy convention but also to consider the change in social, economic and political conditions of the country as nearly ten years had elapsed from the date of submissions of the report, a period considered H sufficient for evaluation if the reservation may be continued or not.

INDRA SAWHNEY v. U.O.l. [R.M: SAfIAI, J.] 1007

***** A Valuable assistance was rendered by Shri KK Venugopal and Shri N.A. Palkhiwala the learned senior counsel, who led the arguments and placed one view. They were ably supported by Shri P.P. Rao and Smt. Shyamala Pappu, senior advocates. Arguments were also a,dvanced by Smt. Hingorani, Mr. Mehta, Mr. K.L. Sharma, Mr. S.M. Ashri, Mr. Vishal Jeet. B Shri K.N. Rao and Col. Dr. D.M. Khanna appeared in person as inter- veners and were of assistance.

Shri Ram J ethmalani, the learned senior advocate appearing for the State of Bihar was equally helpful in projecting the other view. Shri K. Parasaran, the learned senior counsel for the Union of India while sup- C porting. Shri Jethmalani placed a very dispassionate view of the entire matter. Shri Rajiv Dhawan was also very helpful. Shri R.K. Garg, Shri Shiv Pujan Singh, Shri J. Siva Subramaniarn, Shri Pot~ Smt. Rani Jethmalani · also made submissions. Shri Ram Avadhesh Singh argued in person.

V.P.R. Petitions disposed of.