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

6. Himachal Based on the list of Not challenged Pradesh 0 BCs declared by the erstwhile State of D Punjab for the areas merged in the State of Himachal Pradesh in November, 1966. The list is now extended to the entire State.

E 7. Karnataka Commission head by The Karnataka High Shri L.G.Havanuri Court struch down the (Report of Nov.75) inclusion of certain communities in the list of SEBCs. The matter was then taken to the Supreme Court in the Vasanth Kumar's case. (High Court judgment was prior to Manda! report.)

8. Kerala (i) Commission The Kerala Govt. vide headed by Shri communication dt. 8.2.91 G.Kumara Pillai set up has intimated that the in 1964. list of OBCs has not (ii) Commission headed been challenged. by Shri N.P.Damodaran H set up in 1%7.

INDRA SAWHNEY v. u.o.I. 689

9. Madhya Mahajan Commission List stayed by M.P. High A Pradesh (report of Dec.1983) Court. (when Manda! was working, no State list)

10. Maharashtra Committee headed by Not challenged Shri B.D.Deshmukh B (report of Jan.1964)

11. Punjab Committees set up in Not challenged 1951 and 1965. The latter committee was headed by Shri Brish Bhan. c

12. Tamil Nadu (i) Commission The revised list prepared headed by Shri by the Ambasankar A.N.Sattanathan set Commission has been up in 1969. challenged in the (ii) Commission Supreme Court vide WP D headed by Shri No. 1 of 1987 which JS J .A.Ambasankar pending (report of Feb.1985)

13. Uttar Commission headed Status report not Pradesh by Shri Chhedi Lal received from State Sathi (Report of 1977). Government. E

Even if in one or two cases (e.g., Goa), the list is prepared without appointing a Commission, it cannot be said to be bad on that account. The Government, which drew up the list, must be presumed to be aware of the conditions obtaining in their State/area. Unless so held by any competent court - or the permanent mechanism (in the nature of a Commission) directed to be created herewith holds otherwise - the lists must be deemed to be valid and enforceable.

At the same time, we think it necessary to make the following clarifica- tion: It is true that the Government of India has adopted the State lists obtaining as on 13th August, 1990 for its own purposes but that does not mean that those lists are meant to be sacrosanct and unalterable.· There may be cases where commission~ appointes by the State Government may have, in their reports, recommeded modification of such lists by deletion or addition of certain castes, communities and classes. Wherever such commission H

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

A reports are available, the State Government is bound to look into them and take action on that basis with reasonable promptitude. If the State Govern- m,ent effects any modification or alteration by way of deletions or additions, the same shall be intimated to the Government of India forthwith which shall take appropriate action on that basis and make necessary changes in its own list relating to that State. Further, it shall be equally open to, indeed the duty B of, the Government of India - since it has adopted the existing State lists - to look into the reports of such commission, if any, and pass its own orders, independent of any action by the State Government, thereon with reason- able promptitude by way of modification or alteration. It shall be open to the Government of India to make such modification/alteration in the lists c adopted by way of additions or deletions, asit thinks appropriate on the basis of the Reports of the Commission(s). This direction, in our opinion, safe guards against perpetuation of any errors in the State lists and ensures rectification of those lists with reasonable promptitude on the b•sis of the reports of the Commission already submitted, if any. This course may be D adopted de hors the reference to or advice of the permanent mechanism (by way of Commission) which we have directed to be created at both central and state level and with respect to which we have made appropriate directions elsewhere.

(b) Strictly speaking, appointment of a Commission under Article 340 E is not necessary to identify the other backward classes. Article 34-0 does not say so. According to it, the Commission is to be constituted "to investigate the conditions of socially and educationally backward classes ......... and the dif- ficulties under which they labour and to make recommendations as to the steps that should be taken of the Union or any State to remove such difficul- F ties ........ " The Government could have, even without appointing a Commis- sion, specified the O.B.Cs., on the basis of such material as it may have had before it (e.g., the lists prepared by various State Governments) and than appointed the Commission to investigate their conditions and to make ap- propriate recommendations. It is true that Mandal Commission was con- stituted "to determine the criteria for defining the socially and educationaly backward classes" and the Commission did determine the same. Even so, it is necessary to keep the above constitutional position in mind, - more par- ticualrly in view of the veto given to State lists over the Manda! lists as explained in the preceding sub-para. The criteria evolved by Manda! Com- mission for defining/identifying the Other Backward Classes cannot be said to be irrelevant. May be there are certain errors in actual exercise of iden-

INDRA SAWHNEY v. U.0.1. 691

tification, in the .nature of over-inclusion or under- inclusion, as the case may be. But in an eJ<ercise of such magnitude and complexity, such errors are not • uncommon. These errors cannot be made a basis for rejecting either the relevance of the criteria evolved by the Commission or the entire exercise ·of identification, It is one thing to say that these errors must be rectified by the Government of India by evolving an appropriate mechanism and an al- together different thing to say that on that account, the entire exercise becomes futile. There can never be a perfect report. In human affairs, such as this, perfection is only an ideal - not an attainable goal. More than forty years have passed by. So far, no reservations could be made in favour of O.B.Cs. for one or the other reason in Central services though in many States, such reservations are in force. Reservations in favour of 0.B.Cs. are in force in thec States of Kerala, Tamil Nadu, Karnataka, Andhra Pradesh, Maharashtra, Orissa, Bihar, Gujarat, Goa, Uttar Pradesh, Punjab, Haryana and Himachal Pradesh among others. In Madhya Pradesh, a list of O.B.Cs. was prepared on the basis of Mahajan Commission Report but it appears to have been stayed by the High Court. D (c) The direction made herein for constitution of a permanent Com- mission to examine complaints of over-inclusion or under-inclusion ob- viates the need of any such scrutiny by this Court. We have directed constitution of such Commission both at Central and State level. Persons aggrieved can always approach them for appropriate redress. Such Com- mission, which will have the power to receive evidence and enquire into E disputed questions of fact, can more appropriately decide such complaints than this Court under Article 32.

In this view of the matter, it is unnecessary for us to express any opinion on the correctness or adequacy of the exercise done by the Manda[ Commis- F sion. (If and when the Government of India notifies any caste/com- munity/group/class from out of the Manda! list, which caste etc., is not included in the appropriate State list, would the said question fall for con- sideration. It is then that it would be necessary to deal with the criticism against the Mandal Commission). For the same reason, it is unnecessary to refer or deal \\1th the arguments of the counsel for Union of India and the G Respondents in justification of the Manda! Commission Report.

Before parting with this aspect, we must say that identifying the im- pugned Office Memorandums with the Manda) Con1mission report is basi- cally erroneous. Such an identification is bound to lead one into confusion. H

692 SUfREME COURT REPORTS [1992] SUPP. 2 S.C.R.

A · He would be missing the wood for the trees. Instead of concentrating on the real issues, he would deviate into irrelevance and imbalance. Manda! Com- mission report may have led to the passing of the impugned Office Memoran- dum dated 13th August, 1990; it may have acted as the catalytic agent in bringing into existence the reservation in favour of O.B.Cs. (loosely referred to as SEBCs. in the O.M.) but the- Office Memorandum dated 13th August, B 1990 doesn't incorporate the Manda! lists of O.B.Cs. as such. It incorporates, in truth and effect, the State lists as explained hereinabove. In a social measure like the impugned one, the court must give due regard to the judgment of the Executive, a co-equal wing of the State and approach the measure in the spirit in which it is conceived. This very idea is put forcefully by Joseph Raz (Fellow of Balliol College, Oxford) in his article "The Rule of Law and its virtue" ( 1977) 93 Law Quarterly Review 195 at 211 in the following words:

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

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

121Copy pinpoint121. We may summarise our answers to the various questions dealt with and answered hereinabovc:

H (l)(a) It is not necessary that the 'provision' under Article 16(4)

INDRA SAWHNEY v. UO.l. 693

should necessarily be made by the Parliament/Legislature. Such a provision can be made by the Executive also. Local bodies, Statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves competent to make such a provision, if so advised. (Para 55)

(b) An executive order making a provision under Article 16(4) is enforceable the moment it is made and issued. (Para 56)

(2)(a) Clause (4) of Article 16 is not an exception to clause (1). It is an instance and an illustration of the classification inherent in clause (1). (Para 57) C

(b) Article 16(4)' is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment. (Para 58)

(c) Reservations can also be provided under clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. D These reservations, if any, made under clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for 'backward class of citizens' - as explained in this Judgment. (Para 60)

(3)(a) A caste can be and quite often is a social class in India. If it E is backward socially, it would be a backward class for the purposes of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which for historical reasons, are socially back- ward. They too represent backward social collectives for the purposes of Article 16(4). (Paras 61 to 82) F (b) Neither the constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the backward classes can G certainly be done with reference to castes among, and along with, other occupational groups, classes and sections of people.. One can start the process either with the occupational groups or with castes or with some other groujJs. Thus one can start the process with the. castes, wherever they are found, apply the criteria (evolved for determining backwardness) and find H

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

A out whether it satisfies the criteria. If i.t does - what emerges is a "backward class of citizens" within the meaning of and for the purposes of Article 16(4). Similar process can be adopted in the case of other occupational groups, communities and classes, so as to cover the entire populace. The central idea and overall objective should be to consider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group/class encompassing an overwhelming majority of the country's popula- tion, one can well begin with it and then go to other groups, sections and classes. (Paras 83 and 84)

(c) It is not necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (Paras 87 and 88)

(d) 'Creamy layer' can be, and must be excluded. (Para 86)

( e) It is not correct to say that the backward class of citizens con- D templated in Article 16(4) is the some as the socially and educationally backward classes referred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in lhe Indian context. (Para 85)

E (I) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the ap- propriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority. (Para 89)

(4) (a) A backward class of citizens cannot be identified only and F exclusively with reference to economic criteria. (Para 90)

(b) It is, of course, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation-cum-in- come, without reference to caste, if it is so advised. (Para 91). G (5) There is no constitutional bar to classify the backward classes of citizens into backward and more backward categories. (Para 92)

(6) (a)&(b) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great

INDRA SAWHNEY v. U.O.L 695

diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extr~me caution is to be exercised and a special case made out. B (c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. (Para 96)

(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it is inconsistent with this judgment. (Paras 97 to 99)

(7) Article 16(4) does not permit provision for reservations in the matter of promotion. This rule shall, however, have only prospective opera- tion and shall not affect the promotions already made, whether made on regular basis or on any other basis. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. If is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in opera- tion for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of backward class of citizens in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so. (Ahmadi, J. expresses no opinion on this question upholding the preliminary objection of Union of India). It would not be impermissible for the State to extent concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. (Paras 100 to G 107).

(8) While the rule of reservation cannot be called anti-meritarion, there are certain services and posts to which it may not be advisable to apply the rule of reservation. (Paras 108 to 112) . H

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

A (9) The distinction made in the impugned Office Memorandum dated 25th September, 1991 between 'poorer sections' and others among the back- ward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as other Backward classes, as explained in para 114 of this Judgment (Para 114). (11) The reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any of the existing schemes of the reservation' made in the impugned office memorandum dated 25.9.1991 is constitutionally invalid and is accordingly struck down. {Para 115)

(12) There is no particular or special standard of jndicial scrutiny applicable to matters arising under Article 16(4). (Para 113)

{13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Comission - for examining requests of inclusion and complaints of over-in- clusion or non-inclusion in the list of O.B.Cs. and to advise the Government, D which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefor. {Para 117)

{14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correct- E ness and adequacy of the exercise done by the Manda! Commission. It is equally unnecessary to send the matters back to the Constitution Bench of Five Judges. (Paras 118 to 119) 122. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para 115. Our answers question-wise are: F (1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in favour of backward classes, though it may not be exhaustive of the very concept of reservation. Reservations for other classes G can be provided under clause (1) of Article 16.

(2) The expression 'backward class' in Article 16{4) takes in 'Other Buckward Classes', S.Cs., S.Ts. and may be some other backward classes as well. The accent in Article 16(4) is upon social backwardness. Social backwardness leads to educational backwardness and economic backward- H ness. They arc mutually contributory to each other and are inter-twined

INDRA SAWHNEY v. U.0.1. 697

with low occupations in the Indian society. A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4).

... The weaker sections referred to Article 46 do include S.E.B.Cs. referred to in Article 340 and covered by Article 16(4) .

(3) Even under Article 16(1), reservations cannot be made on the basis of economic criteria alone.

(4) The reservations contemplated in Clause ( 4) of Article 16 should not exceed 50%. While 50% shall be the rule, it. is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those ·areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some

- relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation D

can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate. E To the extent, Devadasan is inconsistent herewith, it is over-ruled.

(5) There is no constitutional bar to classification of backward classes into more backward and backward classes for the purposes of Article 16(4). The distinction should be on the basis of degrees of social backwardness. In case of such classification, however, it would be advisable - nay, necessary- to ensure equitable distribution amongst the various backward classes to avoid lumping so that one or two such classes do not eat away the entire quota leaving the other backward classes high and dry.

For excluding 'creamy layer', an economic criterion can be adopted as an indicium or measure of social advancement.

(6) A 'provision' under Article 16(4) can be made by an executive order. It is not necessary that it should be made by Parliament/Legislature.

·(7) No special standard of judicial scrutiny can be predicated in mat- H

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

A ters arising under Article 16(4). It is not possible or necessary to say more than this under this question.

(8) Reservation of appointments or posts under Article 16(4) is con- fined to initial appointment only and cannot extend to providing reservation in the matter of promotion. We direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion - be it Central Services or State Services, or for that matter services under any Corporation, authority or body falling under the definition of 'State' in Article 12 - such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so.

(As pointed out at the end of the paragraph 101 of this judgment, Ahmadi, J. having upheld the preliminary objection raised by Sri Parasaran and others has not associated himself with the discussion on the question E · whether reservation in promotion is permissible. Therefore, the views ex- rressed in this judgment on the said point are not the views of Ahmadi. J.)

THE FOLLOWING DIRECTIONS ARE GIVEN TO THE GOVERNMENT OF INDIA. THE STATE GOVTS. AND THE ADMINISTRATION OF UNION TERRITORIES. F 123(A). The Government of India, each of the State Governments and the Administrations of Union Territories shall, within four months from today, constitute a permanent body for entertaining, examining and recom- mending upon requests for inclusion and complaints of over-inclusion and under-inclusion in the lists of other backward classes of citizens. The advice G tendered by such body shall ordinarily be binding upon the Government.

(B) Within four months from today the Government of India shall specify the bases, applying the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections ('creamy layer') from 'Other H Backward Classes'. The implementation of the impugned O.M. dated 13th

INDRA SAWHNEY v. U.O.!. 699

September, 1990 shall be subject to exclusion of such socially advanced persons ('creamy layer').

This direction shall not however apply to States where the reservations in favour of backward classes are already in operation. They can continue to operate them. Such States shall however evolve the said criteria within six months from today and apply the same to exclude the socially advanced persons/sections from the designated 'Other Backward Classes.

(C) It is clarified and directed that any and all objections to the criteria th<tt may be evolved by the Government of India and the State Governments in pursuance of the direction contained in clause (B) of Para 123 as well as to the classification among backward classes and equitable distribution of the benefits of reservations among them that may be made in terms of and as contemplated by clause (1) of the Office Memorandum dated 25th Septem- ber 1991, as explained herein, shall be preferred only before this Court and not before or in any other High Court or other Court or Tribunal. Similarly, and pelition or proceeding questioning the validity, operation or implemen- D talion of the lwo impugned Office Memorandums, on any grounds what- soever, shall be be filed or instituted only before this Court and not before any High Court or other Court or Tribunal.

124. The Office Memoranda dated August 13, 1990 impugned in these writ petitions is accordinagly held valid and enforceable subject to the exclusion of the socially advanced members/sections from the notified 'Other Backward Classes', as explained in para 123(B).

Clause (i) of the Office Memorandum dated September 25, 1991 requires - to uphold its validity - to be read, interpreted and understood as intending a distincation between backward and more backward classes on "<· the basis of degrees of social backwardness and a rational and equitable distibution of the benefits of the reservations amongst them. To be valid, the said clause will have to be read, understood and implemented accordingly.

Clause (ii) of the Office Memorandum dated September 25, 1991 is held invalid and inoperative.

The writ Petitions and Transferred Cases are disposed of in the light of the principles, directions, clarifications and orders containe.d in this Judgment. H

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

A No costs.

S. RATNAVEL PANDIAN, J. 'Equality of status and of oppor- tunity ..... .' the rubric chiselled in the luminous preamble of our vibrating and pulsating Constitution radiates one of the avowed objectives in our Sovereign, Socialist and Secular Democratic Republic. In every free country B which has adopted a system of governance through democratic principles, the people have their fundamental inalienable rights and enjoy the recogni- tion of inherent dignity and of equality analogous to the rights proclaimed in the 'Bill of Rights' in U.S.A., the 'Rights of Man' in the French Constitution of 1971 and 'Declaration of Human Rights' etc. Our Consititution is unques- c tionably unique in its character and assimilation having its notable aspira- tions contained in 'Fundamental Rights' (in Part III) through which the illumination of Constitutional rights comes to us not through an artless window glass but refracted with the enhanced intensity and beauty by pris- matic interpretation of the Constitutional provisions dealing with equal dis- tribution of justice in the social, political and economic spheres. D Though forty-five years from the commencement of the Indian inde- pendence after the end of British paramountcy and forty-two years from the advent of our Constitution have marched on, the tormenting enigma that often nags the people of India is whether the principle of 'equality of status and of opportunity' to be equally provided to all the citizens of our country E from cradle to grave is satisfactorily consummated and whether the clarion of 'equality of opportunity in matters of pulic employment' enshrined in Article 16(4) of the Constitution of India has been called into action? With a broken heart one has to answer these questions in the negative.

F The founding fathers of our Constitution have designedly couched Articles 14, 15 and 16 in comprehensive phraseology so that the frail and emaciated section of the people living in proverty, rearing in obscurity, possessing no wealth or influence, having no education, much less higher education and suffering from social repression and oppression should not be denied of equality before the law and equal protection of the laws and equal opportunity in the matters of public employment or subjected to any prohibi- tion of discrimination on grounds of religion, race, caste, sex or place of birth.

To achieve the above <Jbjectives, the Government have enacted in- numerabie social welfare legislations and geared up social reformative measures for uplifting the social and economic development of the disad-

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 701

vantaged section of people. True, a rapid societal transformation and profusion of other progressive changes are taking place, yet a major section of the people living below the poverty line and suffering from social ostracism still stand far behind and lack in every respect to keep pace with the advanced section of the people. The undignified social status and sub-human living conditions leave an indelible impression that their forlorn hopes for equality in every sphere of life are only a myth rather than a reality. It is verily believed - rightly too - that the one and only peerless way and indeed a most important and promising way to achieve the equal status and equal oppor- tunity is only by means of constitutional justice so that all the citizens of this country irrespective of their religion, race, caste, sex, place of birth or any of them may achieve the goal of an egalitarian society. C

This Court has laid down a series of landmark judgments in relation to social justice by interpreting the constitutional provisions upholding the cherished values of the Constitution and thereby often has shaped the course of our national life. Notwithstanding a catena of expository decisions with interpretive semantics, the naked truth is that no streak of light or no ray of hope of attaining the equality of status and equality of opportunity is visible.

Confining to the issue involved in this case as regards the equal oppor- tunity in the matters of public employment, I venture to articulate without any reservation, even on the possibility of any refutation that it is highly deplorable and heart-rending to note that the constitutional provision, name- ly, namely, clause (4) of Article 16 proclaiming a "Fundamental Right" enacted about 42 years ago for providing equality of opportunity in matters of public employment to people belonging to any backward class has still not been given effect to in services under the Union of India and many more F States. A number of Backward Classes Commission have been appointed in some of the States, the recommendations of which have been repeatedly subjected to judicial scrutiny. Though the President of India appointed the second Backward Classes Commission under the chairmanship of Shri B.P. Manda! as far back as lat January, 1979 and the Report was submitted in December, 1980, no effective steps were taken for its implementation till the G issuance of the two impugned OMs. Having regard to this appalling situation and the pathetic condition of the backward classes, for the first time the Union of India has issued the Office Memorandum (hereinafter called the 'O.M.') in August 1991 and thereafter an amended O.M. in September 1991 on the basis of the recommendations of the ·Mandal Commission. H

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

A Immediately after the announcement of the acceptance of the Report of the Manda! Commission, as pointed out in Writ Petition No.930/90 and the Annexures I & II enclosed thereto, there were nnabated pro as well as anti - reservation agitations and violent societal disturbances virtually paralysing !he normal life. It was unfortunate 'and painful to note that some youths who are intransigent to recognise the doctrine of equality in matters of public employment and who under the mistaken impression that 'wrinkles and gray hairs' could not do any thing in this matter, actively participated in the agitation. Similarly, another section of people suffering from a fear psychosis that the Manda! recommendations may not at all be implemented entered the fray of the agitation. Thus, both the pro and anti-reservationists or being detonated and inflamed by the ruffled feelings that their future in public employment is bleak raised a number of ganawing doubts which in turn sensationalised the issue. Their pent up fury led to an orgy of violence resulting in loss of innocent life and damaged the public properties. It is heart-rending that some youths - particularly students - in their prime of life went to the extent of even self-immolating themselves. No denying the fact that the horrible, spine - chilling md jarring piece of information that some youths whose feelings ran high had put an an end to their lives in tragic and pathetic manner had really caused a tremor in Indian society. My heart bleeds for them.

In fact, a three-Judges Bench of this Court comprised of Ranganath E Misra, CJ and K.N. Singh and M.H. Kania, JJ (as the learned Chief Justices then were) taking note of the widespread violence, by their order dated 21st September 1990 made the following appeal to the general public and par- ticularly the student community: .

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

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 703

- Be that as it may, sitting as a Judge one cannot be swayed either way while interpreting the Constitutional provisions pertaining to the issues A

under controversy by the mere reflexes of the opinion of any section of the people or by the turbulence created in the society or by the emotions of the day. Because nothing inflicts a deeper wound on our Constitution than in interpreting it runlling berserk regardless of human rights and dignity. B We are very much alive to the fact that the issues with which we are now facing are hypersensitive, highly explosive and extremely delicate. Therefore, the permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner.

Part-III dealing with 'Fundamental Rights' and Part-IV dealing with 'Directive Principles of State Policy' which represent the core of the Indian Constitutional philosophy envisage the methodology for removal of historic injustice and inequalities - either inherited or artificially created - and social and economic disparity and ultimately for achieving an egalitarian society in terms of the basic structure of our Constitution as spelt out by the preamble.

Though all men and women created by the Almighty, whether or- E thodox or heterodox; whether theist or atheist; whether born in the highest class or lowest class; whether belong to 'A' religion or 'B' religion are biologically same, having same purity of blood. In a Hindu Society they are divided into a number of distinct sections and sub-sections known as castes and sub-castes. The moment a child comes out of the mother's womb in a Hindu family and takes its first breath and even before its umbilical cord is cut off, the innocent child is branded, stigmatized and put in a separate slot according to the caste of its parents despite the fact that the birth of the child in the particular slot is not by choice but by chance.

The concept of inequality is unknown in the Kingdom of God who creates all beings equal, but the "created" of the creator has created the artificial inequality in the name of casteism with selfish motive and vested interest.

Swami Vivekananda in one of his letters addressed to his disciples in Madras dated 24.1.1894 has stated thus: H

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

A "Caste or no caste, creed or no creed, .... or class, or caste, • or nation, or institution which bars the power of free thought and action of an individual - even so long as that .. pow~r does not injure others - is devilish and must go down.n '

B (Vide 'The Complete Works of Swami Vivekananda, Vol. V. page 29')

A Biblical verse in New Testament says 'He denieth none that come unto Him, black and white". c Sura 10 Verse No. 44 of Holy Quran reads:

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

D The Hindus who form the majority, in our country, are divided into 4 .~

Varnas - namely, Brahmins, Kshatriyas, Vaishyas (who are all twice born) and lastly Shudras which V arnas are having a four tier demarcated hierarchi- cal caste system based on religious tenets, believed to be of divine origin or divinely ordained, othe1wise called the Hindu Varnasharma Dharma. Beyond the 4 Varnas Hinduism recognises a community, by name Panchma E (untouchables) though Shudras are recognised as being the lowest rung of the hierarchical race. This system not only creates extreme forms of caste and gender prejudices, injustices, inequalities but also divides the society into privileged and disabled, revered and despised and so on. The perpetuation of casteism, in the words of Swami Vivekananda "continues social tyranny of ages". The caste system has been religiously preserved in many ways including by the judicial verdicts, pronounced according to the traditional Hindu Law.

On account of the caste system and the consequent inequalities prevailing in Hinduism between person to person on the basis of Var- nasharma Dharma new religions such as Buddhism and Jainism came into existence on the soil of this land. Many humanistic thinkers a11d farseeing revolutionary leaders who stood foursquare by the down - trodden section of the Backward Classes aroused the consciousness of the backward class to fight for justice and join the wider struggle for social equality and propagated various reforms. It was their campaign of waging an unending war against social injustice which created a new awareness. The sustained

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 705

and strenuous efforts of those leaders in that pursuit have been responsible for bringing many new social reforms.

Recognizing and recalling the self-less and dedicated social service carried on by those great leaders from their birth to the last breath; the then Prime Minister while making his clarificatory statement regarding the implementation of the Manda! Commission's Report in the Rajya Sabha B on the 9th August 1990 paid the tributes in the following words :

"In fact this is the realisation of the dream of BHARAT RATNA Dr. B.R. AMBEDKAR, of the great PERIYAR RAMASWAMY and Dr. RAM MANOHAR LOHIA." c Harkingback, it is for the first time that the controversial issue as regards the equality of opportunity in matters of public employment as contemplated under Article 16(4) has come up for deliberation before a nine-Judges Bench, on being referred to by a five-Judges Bench.

There are various Constitutional provisions such as Articles 14, 15, D 16, 17, 38, 46, 332, 335, 338 and 340 which are designed to redress the centuries old grievances of the scheduled castes and scheduled tribes as well as the backward classes and which have come for judicial interpreta· tion on and off. It is not merely a part of the Constitution but also a national commitment. E This Court which stands as a sentinel on the quie vie over the rights of people of this country has to interpret the Constitution in its true spirit with insight into social values and suppleness of the adoption to the changing social needs upholding the basic structure of the Constitution for securing social justice, economic justice and political justice as well as F equality of status and equality of opportunity.

The very blood and soul of our Constitutional scheme are to achieve the objectives of our Constitution as contained in the preamble which is part of our Constitution as declared by this Court in Kesvananda Bharti v. G Kera/a, 1993 (Suppl.) SCR 1. So it is incumbent to lift the veil and see the notable aspirations of the Constitution.

No one can be permitted to invoke the Constitution either as a sword for an offence or as a shield for anticipatory defence, in the sence that no one under the guise of interpreting the Constitution can cause irrevertible H

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

A injustice and irredeemable inequalities to any section of the people or can protect those unethic:<" .,,,ung unquestionable dynastic monopoly over the Constitutional benefits.

Therefore, the Judges who are entrusted with the task of fostering an advanced social policy in terms of the Constitutional mandates cannot afford to sit in ivory towers keeping Olympian silence unnoticed and uncaring of the storms and stresses that affect the society.

This Summit Court has not only to interpret the Constitution but also sometimes to articulate the Constitutional norms, serving as a publicist for reforms in the areas of the most pressing needs and directing the executive to take the needed actions. Mere verbal gymnastics or e111pty slogans and sermons honoured more often in rhetoric than practice are cf no use.

It may be a journey of thousand miles in achieving the equality of status and of opportunity, yet it must begin with a single step. So let the socially backward people take their first step in that endeavour and march on and on.

When new societal conditions and factual situations demand the Judges to speak they, without professing the tradition of judicial lock-jaw, must speak out. So I speak. E For providing reservations for backward class of citizens, Scheduled Castes and Scheduled Tribes in the public educational institutions and for providing equal opportunity in the matters of public employment, some States have appointed Commissions on Backward Classes. The Central Government has also appointed two Commissions under Article 340 (1) of F the Constitution of In.dia for identifying the backward class of citizens as contemplated under Article 16 (4) for the purpose of making reservation of appointments or posts in the Services under Union of India. The list of Commissions appointed by the various States and the Central Government is given as under:

G COMMISSIONS ON BACKWARD CLASSES

Andhra Pradesh Manohar Pershad Committee (1968-69) Anania Raman Commission (1970) Muralidhara Rao Commis- H sion (1982)

INDRA SAWHNEY v. U.O.l. [PANDIAN, J.] 707

Bihar Mungeri Lal Commission {1971-76) A Gujarat A.R. Bakshi Commission {1972-76) Justice C.V. Rane Commission (1981-83) Justice R.C. Mankad Commission (1987)

Haryana Gurnam Singh Commission {1990) B

Jarnmu and Justice Ganjendragadkar Commission (1967-68) Kashmir Justice J.N. Wazir Commission (1969) Justice Adarsh Anand Commission (1976-77)

Karnataka Justice L.C. Miller Committee (1918-1920; Mysore) c Naganoa Gowda Commission (1960-61) L.G. Havnur Commission (1972-75) T. Venkataswamy Commission ( 1983-86) Justice Chinnappa Reddy Commission (1989-90) D Kerala Justice C.D. Nokes Committee (1935; Travancore- Cochin) V.K.Vishvanatham Commission (1%1-63) G. Kumar Pillai Commission (1964-66) N.P. Damodaran Commission {1%7-70)

Maharashtra O.H.B. Starte Committee {1928-30; Bombay E Presidency) B.D. Deshmukh Committee {1961-64)

Punjab Brish Ban Committee (1%5-66)

Tamil Nadu A.N. Sattanathan Commission (1969-70) J.M. Ambasankar Commission (1982-86) F

Uttar Pradesh Chhedi Lal Sathi Commission (1975-77)

All India Kaka Kalelkar Commission ( 1953-55) B.P. Manda! Commission {1979-80) G

Note : 1. Where two dates are mentioned they refer to year of ap- pointment and year of submission. Where only one is men- tioned it refers to year of submission which is also the year of appointment in some cases. H

708 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A 2. The three commi3sions of the colonial period mentioned here had an ambit wider than those groups that later came to be known as Backward Classes.

Second Backward Classes Commission (popularly known as Manda/ Commission) B By a Presidential Order under Article 340 of the Constitution of India, the first Backward Class Commission known as Kaka Kalelkar's Commission was set up on January 29, 1953 and it submitted its report on March 30, 1955 listing out 2399 castes as socially and educationally back- C ward on the basis of criteria evolved by it, but the Central Government did not accept that report and shelved it in the cold storage.

It was about twenty-four years after the F"rrst Backward Classes Commission submitted its Report in 1955 that the President of India D pursuant to the resolution of the Parliament appointed the second Back- ward Classes Commission on 1st January 1979 under the Chairmanship of Shri B.P. Manda! to investigate the conditions of Socially and Educationally Backward Classes (for short 'SEBCs') within the territory of India. One of the terms of reference of the Commission was to determine the criteria for defining the SEBCs. The Commission commenced its functioning on 21st E March, 1979 and completed its work on 12th December 1980, during the course of which it made an extensive tour throughout the length and breadth of India in order to collect the requisite data for its final report. The Commission submitted its report with a minute of dissent of one of its members, Shri L.R. Naik on 31st December 1980. The Commission appears F to have identified as many as 3743 castes as SEBCs and made its recom- mendations under Chapter XIII of Volume I of its report (vide paras 13. 1 to 13.39) and finally suggested "regarding the period of operation of Commission's recommendations, the entire scheme should be reviewed after twenty years. (Vide para 13.40) G The entire Report comprises of fourteen Chapters of which Chapter IV deals with 'Social Backwardness and Caste', Chapter XI deals with 'Socio-Educational Field Survey and Criteria of Backwardness', Chapter XII deals with 'Identification of OBCs" and Chapter XIII gives the H 'Recommendations'. After a thorough survey of the population, the Com-

INDRA SAWHNEY v. U.0.1. [PAND!AN, J.] 709

mission has arrived at the percentage of OBCs as follows: A "12.22 From the foregoing it will be seen that excluding Scheduled Castes and Scheduled Tribes, other Backward Classes constitute nearly 52% of the Indian population.

Percentage of Distribution of India Population by B Caste and Religious Groups

S.No. Group Name Percentage of the total population

I, Scheduled Castes and Scheduled Tribes c A-1 Scheduled Castes 15.05 A-2 Scheduled Tribes 7.51

Total of 'A' 22.56 D II. Non-Hindu Communities, Religious Groups, etc.

B-1 Muslims (other than STs) 11.19 (0.2)* B-2 Christians (other than STs) 2.16 (0.44)* B-3 Sikhs (other than SCs & STs) 1.67 (0.2:1)* E B-4 Budhists (Other than STs) 0.67 (0.03)* B-5 Jains 0.47

Total of 'B' 16.16

III. Forward Hindu Castes & Communities F C-1 Brahmins (including Bhumihars) 5.52 C-2 Rajputs 3.90 C-3 Marathas 2.21 C-4 Jats 1.00 C-5 V aishyas-Bania etc. 1.88 G C-6 Kayasthas 1.07 C-7 Other forward Hindu castes/groups 2.00

Total of 'C' 17.58 Total of 'A', 'B' & ic· 56.30 H

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A IV. Backward Hindu Castes & Communities

D. Remaining Hindu castes/groups which come in the category of 'Other Backward Classes' 43.70@

V. Backward Non-Hindu Communities B E. 52% of religious groups under Section B may also be treated as OBCs 8.40

F. The approximate derived population of Other Backward Classes including non-Hindu Communities c 52% (Aggregate of D & E, rounded)

@ This is a derived figure D * Figures in brackets give the population of S.C. & S.T. among these non-Hindu Communities.

On the basis of the Commission's Report - popularly known as Manda! Commission's Report - (for short 'the Report'), two office E Memoranda - one dated 13.8.1990 and the other amended one dated 25.9.1991 were issued by the Government of India. We are reproducing those Memoranda hereunder for proper understanding and appreciation of the significance of these two OMs and the distinctions appearing be- tween them: F "No. 36012/31/90-Estt (SCT) Government of India Ministry of Personnel, Public Grievances & Pensions (Dept!. of Personnel & Training) G OFFICE MEMORANDUM

New Delhi, the 13th August, 1990

Subject : Recommendation of the Second Backward Clas- H ses Commission (Manda! Report) - Reservation for

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 711

Socially and Educationally Backward Classes in ser- A vices under the Government of lndia.

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 Clas- ses Commission called the Mandal Commission was es- B tablished by the then Government with this purpose in view, which submitted its report to the Government of India on 31.12.1980.

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

vacancie~ in civil posts and services under (i) 27% of the the Government of India shall be reserved for SEBC.

(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed instructions relating to the procedure to be followed for enforcing reservation will be issued separately.

(iii) Candidates belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be adjusted against the reservation quota of 27%.

(iv) The SEBCwould comprise in the first phase the castes and communities which are common to both the list in the report of the Manda! Commission and the State Governments' lists. A list of such castes/communities is being. issued separately.

(v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where H

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

A the recruitment process has already been initiated prior to the issue of these orders.

Similar instructions in respect of public sector undertak- ings and financial institutions including public sector bank~ will be issued by the Department of Public Enterprises and B Ministry of Finance respectively.

sd/- (Smt. Krishna Singh) Joint Secretary to the Govt. of India

C Amended Memorandum:

'No. 36012131/90-Estt. (SCT) Government of India Ministry of Personnel, Public Grievances D & Pensions (Deptt. of Personnel & Training)

OFFICE MEMORANDUM

New Delhi, the 25th September, 1991. E Subject : Recommendation of the Second Backward Classes Commission {Manda! Report) - Reservation for So- cially and Educationally Backward Classes in service under the Government of India.

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

2. (1) Within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 713

sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates.

(ii) 10% of the vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reserva- tion.

(iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.

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

sd/- (A.K. HARIT) DEPUTY SECRETARY TO THE GOVT. OF INDIA" E The expression deployed in both the OMs, "Socially and Education- ally Backward Classes" is on the strength of the Report of the Commission, though no such expression is used in Article 16(4) whereunder the reser- vation of appointments or posts in favour of any backward class of citizens is to be made. This expression is used as an explanatory one to the words F 'backward class' occurring in Article 16( 4). Articles 16(4) and 340 (1) were

- embodied in the Constitution even at the initial stage; but Article 15(4) containing the same expression as in Article 340 (1) was subsequently added by the Constitution (First Amendment) Act of 1951 to over-ride the decision of this Court in State of Madras v. Smt. Champakam Dorairajan, 1951 SCR 525. G

Legislative History of Article 15(4) of the Constitution

A legislative historical event that warranted the introduction of clause 4 to Article 15 may be briefly retraced. H

714 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A The Government of Tamil Nadu issued a Communal G.O. in 1927. mal<ing copartmental reservation of posts for various communities. Sub- sequently the G.O. was revised. In 1950 one Smt. Chamµakam Dorairajan who intended to join the Medical College, on enquiries came to know that in respect of admissions into the Government Medical College the authorities were enforcing and observing an order of the Government, B namely, notification G.0.No. 1254 Education dated 17.5.1948 commonly known as Communal G.O. which restricted the number of seats in Govern- ment Colleges for certain castes. It appeared that the proportion fixed in the old Communal G.O. had been adhered to even after commencement of the Constitution on January 26, 1950. She filed a Writ Petition on 7th C June 1950 under Article 226 of the Constitution for issuance of a writ of mandamus restraining the State of Madras from enforcing the said Com- munal G.O. on the ground that the G.O. was sought or purported to be regulated in such a manner as to infringe the violation of the fundamental rights guaranteed under Articles 15(1) and 29(2). Similarly one Srinivasan D who had applied for admission into the Government Engineering College at Guindy also filed a Writ Petition praying for a writ of mandamus for the same relief as in Champakam Dorairajan. A Full Bench of the Madras High Court heard both the Writ Petitions and allowed them (vide Smt. Cham- pakam Dorairajan and another v. State of Madras, AIR 38 (1951) Madras E 120). In this connection it may be mentioned that while the Writ Petition was pending before the High Cour~ another revised G.O. No. 2208 dated June 16. 1950 substantially reproducing the communal proportion fixed in the old Communal G.O. came into being. The Slate on being aggrieved by the judgment of the Madras High Court preferred an appeal before this F Court in State of Madras v. Smt. Champakam Dorairajan, (1951) SCR 525.

- A seven-Judges Bench dismissed the appeal holding that "the Communal G.O. being inconsistent with the provisions of Article 29(2) in Part III of the Constitution is void under Article 13." This judgment necessitated the introducation of a Bill called Constitution (First Amendment) Bill for over-riding the decision of this Court in Cltampakam's case (supra). G During the Parliament Debates held on 29th May 1951 Pt. Jawahar Lal Nehru, the then Prime Minister while moving the Bill to amend the Constitution stated as follows:

H "We have to deal with the situation where for a variety of

INDRA SAWHNEY v. U.0.1. (PANDIAN, J.] 715

causes for which the present generation is not to blame, the past has the responsibility, there are groups, classes, individuals, communities, if you like, who are backward. They are backward in many ways - economically, socially, educationally - sometimes they are not backward in one of these respects and yet backward in another. The fact is therefore that if we wish to encourage them in regard to these matters, we .have to do something special for them .................................. .

Therefore one has to keep a balance between the existing fact as we find it and the objective and ideal that we aim at."

Thereafter, the Bill was passed and clause (4) to Article 15 was added by the Constitution (First Amendment) Act. The object of the newly introduced clause (4) to Article 15 was to bring Articles 15 and 29 in line with Articles 16(4), 46 anC: 340 and to make it constitutionally valid for the D State to reserve seats for backward class of citizens, Scheduled Castes and Scheduled Tribes in the public educational institutions as well as to make other special provisions as may be necessary for their advancement.

Scope of Article 16(4) of the Constitution E Article 16(4) expressly permits the State to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State. As the power conferred on the State under F this clause 4 is to be exercised only if 'in the opinion of the State' that there is no adequate representation in the services under the State, a vital question arose for consideration whether the issue of determination by the State as to whether a particular class of citizens is backward or not is a justiciable one? This question was answered by the Constitution Bench of this Court in Trilok Nath Tiku & Another v. State of Jammu & Kashmir and G Others, [1967] 2 SCR 265 holding thus:

"While the State has necessarily to ascertain whether a particular class of citizens are backward or not, having regard to acceptable criteria, it is not the final word on the H

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

A question; it is a justiciable issue. While ordinarily a Court may accept the decision of the State in that regard, it is open to be canvassed if that decision is based on irrelevant considerations. The power under clause (4) is also condi- ticned by the fact that in regard to any backward classes . of citizens there is no adequate representation in the ser- B vices under the State. The opinion of the State in this regard may ordinarily be accepted as final, except when it is established that there is an abuse of power.'

The words 'backward class of ciliuns' occurring in Article 16(4) are neither defined nor explained in the Constitution though the same words occurring in Article 15(4) are followed by a qualifying phrase. 'Socially and Educationally".

Though initially, Article 10(3) of the draft Constitution did not contain the qualifying word 'backward' preceding the words 'class of citizens' the said qualifying word was subsequently inserted on the sugges- tion of the Drafting Committee. Strong objection was taken for insertion of the word 'backward' and more so for tLe introduction of Article 10(3) of the draft Constitution. Amendments were moved by one section of the members of the Constituent Assembly for complete deletion of clause (3) E and by another section for the omission of the word 'backward'. The discussion and debate took place at length for and against the introduction of clause (3) as well as for the insertion of the word 'backward'. Before the motions for amendments were put on vote, Dr. B.R. Ambedkar in answer- ing the scathing criticism made in the course of the debate and explaining the significance of clause (3) of Article 10 with the qualifying word 'backward' and insisting the sustenance of the said clause emphatically expressed his views as follows:

"I am not prepared to say that this Constitution will not - give rise to questions which will involve legal interpretation or judicial interpretation. In fact, I would like to ask Mr. Krishanamachari if he can point out to me any instance of any Constitution in the world which has not been a paradise for lawyers. I would particularly ask him to refer to the vast storehouse of law reports with regard to the Constitution H of the United States, Canada and other countries. 1 am

INDRA SAWHNEY v. U.0.1. [PAND!AN, J.] 717

therefore not ashamed at all if this Constitution hereafter A for purposes of interpretation is required to be taken to the Federal Court. That is the fate of every Constitution and every Drafting Committee. I shall therefore not labour that point at all."

While winding up the debate he said: B

"... the Drafting Committee had to produce a formula which would reconcile the,se three point of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have c not so far had a 'proper look-in' so to say into the administra- tion ................................:........................................................... .

that no better formula could be produced than the one that is embodied in clause (3) of Article 10 of the Constitution; D they will find that the view of those who believe and hold that there shall be equality of opportunity has been em- bodied in sub-clause (1) of Article 10. It is a generic principle ................................................................................... . Supposing for instance, we are to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity ........................ . I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat _up the rule al- together. Nothing of the rule will remain. That I think, if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of intro- ducing the word 'backward' which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly.................................. . somebody asked me:- "Wliat is a haci<Ward c0ininuniiy":i Wei~ I think any one who reads the language of the draft itself will find that we have left it to be determined by each H

718 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A local Government. A backward community is a community which is backward in the opinion of the Government. My honourable Friend Mr. T.T. Krishnamachari asked me whether this rule will be justiciable. It is rather difficult to give a dogmatic answer. Personally I think it would be a justiciable matter. If the local Government included in this B category of reservations such a large number of seats; I think one could very well go to the Federal Court and the Superme Court and say that the reservation is of such a magnitude that the rule regarding equality of opportunity has been destroyed and the court will then come to the c conclusion whether the local Government or the State Govenment has acted in a reasonable and prudent man- ner.''

(emphasis supplied)

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

After the debate, two motions were put to vote but they were negatived. The unexpurgated draft Article 10(3) corresponds to the present E Article 16(4) of the Constitution. It has now become necessary for this Court to interpret and explain the words 'backward class'.

There is a galaxy of decisions of this Court, explaining the words 'backward class' as occurring under Article 16(4) in relation to Articles 16(1) and 16 (2) which I shall recapitulate in my endeavour to meet the F arguments advanced by the learned counsel appearing for various parties in interpreting the words 'backward class'.

The Government both in the earlier O.M. and the subsequent amended O.M. has used the expression 'socially and educationally back- - G ward classes' thereby qualifying the word 'backward' as 'socially and educa- tionally backward' though in the second amended O.M., the 'economic backwardness' is alone taken as a ground for providing reservation for the economically backward section of the people not covered by the same kind of reservation meant for 'socially and educationally backward Classes'.

H The word 'backward' is very wide bringing within its fold the social

INDRA SAWHNEY v. U.O.l. [PAND!AN, J.] 719

backwardness, educational backwardness, economic backwardness, politi- A cal backward and even physical backwardness.

To assimilate the expression 'class' in its legal sense, the said expres- sion should be strictly construed and tested on the principles of agreed criteria which throw a flood light on its true meaning. In interpreting the words 'backward class', I am sorry to say ther~ is no uniform and consistent B· view expressed by the Court by laying down a rigid formula exhaustively listing out the specific criteria. The battery of tests that are recognised by the Courts in determining 'socially and educationally backward classes' are caste, nature of traditional occupation or trade, poverty, place of residence, lack of education and also the sub-standard education of the candidates C for the post in comparison to the average standard of candidates from general category. These factors are not exhaustive.

As to the questions (1) whether 'caste' can be taken as a criterion in determining and identifying a 'backward class' in Hindu society and (2) whether it could be a pre-dominant factor or one of the factors in identify- D ing the backward class, there is a cleavage of opinion.

Ray, C.J. in State of Uttar Pradesh v. Pradeep Tandon and Ors, [1975] 2 SCR 761 at 766 has gone to the extent of saying that "when Article 15(1) forbids discrimination on grounds only of religion, race, caste - caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recognised as a criterion of sOcial and educational backwardness Article 15(4) will stultify Article 15(1)". The effect of this judgment is that caste can never be a criterion. This decision has also ruled that the place of habitation and the environment are also the determining factors in judging the social and educational backward- ness.

A good deal of arguments was advanced on the question whether caste can be the sole if not the dominant factor or at the least one of the factors or not at all. Whilst anti-reservationists contend that the Report G should be thrown overboard on the ground that the reservation is made on the caste criterion, the pro-reservationists would forcibly refute that con- tention making counter submissions stating, inter-alia, that caste can jus· tificably be taken as an important and dominant factor if not the sole factor in determining the social and educational backwardness for various reasons H

720 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A as pointed out in the Report. Since backwardness is a direct consequence of caste status and the discrimination perpetuated against the socially backward people is based on the caste system, the caste criterion can never be divested while interpreting the word 'class'. Mr. K.K. Venugopal, the learned senior counsel while concluding his arguments has stated that caste if it is to. be taken as one of the criteria, it must be at the end point and not the starting point. Therefore, even at the threshold, it has become obligatory to decide the question whether 'caste' should be completely excluded from being considered as one of the criteria, if not to what extent caste would become relevant in the determination and ascertainment of 'socially and educationally backward class'. There is a galaxy of decisions of this Court in explaining the words 'backward class' and 'caste' which I shall refer to at the appropriate place.

Meaning of 'Class' and 'Caste'

To identify the diversity of meanings of the words 'class' and caste' D that constitute their inner complexity; to formulate the questions about them that are disputed and to examine as well as to assess the opposed voices in controversies that have ensued and to understand their semiology, I shall first of all reproduce the meanings of those words as lexically defined. E The Oxford English Dictionary (Volume II):

Class:

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

Caste G (2) one of the several hereditary classes into which society in India has from time immemorial been divided; the mem- bers of each caste being sociilly equal, having the same religious rites, and generally following the same occupation or profession; those of one caste have no social intercourse

l H with those of another; (3) the system or basis of this division

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.J 721

among the Hindoos. A

{ \ In Webster Comprehensive Dictionary (lntemational Edition), the meaning of the words is given as follows:

4 Class: B (1) A number or body of persons with common charac- teristics: the educated class; (2) social rank, caste

Caste:

(1) one of the hereditary classes into which Hindu society C is divided in India (2) the principle of practice of such division or the position it confers; (3) the division of society

I on artificial grounds; a social class

According to Webster's Encyclopedic Unabridged Dictionary of the English Language, meanmg of the words 'class' and 'caste' is as follows: D '" Class:

(1) a number of persons or things regarded as forming a group by reason of corrmon attributes, characteristics, qualities, or traits, kind, sort (2) any division of persons or. E things according to rank or grade .... (9) Social, a social stratum sharing basic, economic, political or cultural char- acteristics and having the same social position ... (10) the system of dividing society; caste ....

Caste: F

( 1) Social, an endogamous and hereditary social group limited to persons of the same rank, occupation, economic position etc. and having mores distinguishing it from other such groups, (2) any rigid wealth, hereditary rank or G privileges, or by profession or employment, having special significance when applied to the artificial divisions or social classes into which the Hindus are rigidly separated.

Black Law Dictionary (Sixth Edition) Centennial Edition (1891-1991) gives the meaning of 'class' 'thus: H

722 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A Class:

A group of persons, things, qualities, or activities having - \ common characteristics or attributes.

The word 'caste' is defined in Encyclopedia Americana (5) thus: B Caste:

Caste is a largely, exclusive social class, membership in which is determined by birth and involves particular cus- tomary restrictions and privilegs. The word di:rivi:s from c the Portugues casta, meaning 'breed', 'race', or 'kind' and was first used to denote the Hindu social system of social distinctions (2) Hinduism, any of the four social divisions, the Brahman, Kshatriya, Vaisya and Sudra, into which Hindu society is rigidly divided, each caste having its own privileges and limitations, transferred by inheritance from \ \ D one generation to the next (3) any class or group of society ... sharing common cultural features .... (6) pertaining to char- acterised by caste; a caste society; a caste system; a caste structure.

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

Class

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

Caste

A class or grad« or division of society separated from others by differences of classification on the Indian sub- H continent. While this remains the basic connotation, the

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 723

word 'caste' is also used to describe in whole or in part A social system that emerged at various times in other parts ( ! of the world ...............................................................................

The meaning of the word 'backward' is defined in lexicons as 'retarded in physical, material or intellectual development' or 'slow in growth or development; retarded. B A careful examination of the meaning of the words 'class' and 'caste' as defined above by the various dictionaries, perceivably shows that these two words are not synonymous with each other and they do not convey the same meaning. c See R. Chitra/ekha and Anr. v. State of Mysore & Ors. [1964] 6 SCR 368 at 388; Triloki Nath v. J. & K. State [1969] 1 SCR 103 at 105 and K.C.

I Vasanth Kumar v. Kamataka, [1985[ Supp. 1 SCR 352.

The quintessence of the above definitions is that a group of persons having common traits or attributes coupled with retarded social, material D

(economic) and intellectual (educational) development in the sense not having so much of intellect and ability will fall within the ambit of 'any backward class of citizens' under Article 16 (4) of the Constitution.

In the course of debate in the Parliam~nt on the inlendmcnt of E Article 16 (4), Dr. B.R. Ambedkar, the then Minister for Law expressed his views that "backward classes which are nothing else but a collection of certain castes."

The next important, but central point at issue is whether caste by the

r name of which a group of persons are identified, can be taken as a criterion in determining that caste as 'socially and educationally backward class' and F

if so, will it be the sole or dominant or one of the factors in the determina- tion of "social and educational backwardness11 •

Before embarking upon a discussion relating to this aspect, it is G pertinent to note the views of certain States as regards the caste criterion and economic criterion for identifying the 'backwardness'.

In reply to a questionnaire issued by the Second Backward Classes Commission, the State of Assam, Andhra Pradesh, Bihar, Gujarat, Kar- nataka, Kerala, Maharastra, Punjab, Rajasthan and Uttar Pradesh stated H

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

A that caste should be used as one of the criterion for identifying backward- ness. Delhi, Dadra and Nagar Haveli, Haryana, Himachal Pradesh and Madhya Pradesh stated that caste should not be made a criterion of backwardness. Bihar, Gujarat, Himachal Pradesh, Kerala, Punjab, Rajas- than and Uttar Pradesh suggested low economic status as one of the significant tests, while Delhi, Dadra and Nagar Haveli and Haryana desired the economic factor to be the sole determinant of backwardness.

Articles 15(4), 16(4) and 340(1) do not speak of 'caste' but only 'class'. The learned counsel particularly those appearing for anti-reser- vationists have stressed that if the makers of the Constitution had really intended to take 'caste or castes' as conveying the meaning of socially and educationally backward class, they would have incorporated the said word, 'caste or castes' in Articles 15( 4) and 340 (1) as 'socially and educationally

D backward caste or castes' instead of 'class or classes' as they have adopted the expression in the case of 'Scheduled Castes and Scheduled Tribes'. Similarly in Article 16( 4) also, they would have used the words as 'back- ward caste or castes' instead of 'backward class'. It has been further urged \ that the very fact that the framers of the Constitution in their wisdom thought of using a wider expression 'classes' in Article 15(4) and 340(1) and 'class' in Article 16(4) alludes that they did not have the intention of equating classes with the castes. E The word 'caste' is not used in the Constitution as indicative of any section of people or community except in relation to 'Scheduled Castes' which is defined in Article 366(24). However, the word 'caste' in Articles 15(2), 16(2) and 29(2) does not include 'scheduled caste' but it refers to a F caste within the ordinary meaning of caste. The word 'Scheduled Caste' came into being only by the notification of President under Article 341. It would be appropriate, in this connection, to recall the observation of Fazal Ali, J. in his separate but concurring judgment in State of Kera/a and Others v. N.M. Thomos and Others, [1976] 1 SCR 906 wherein at page 996, he has said that "the word 'caste' appearing after 'scheduled' is really a misnomer G and has been used only for the purpose of identifying this particular class of citizens which has a special history of several hundred years behind it.".

Mathew, J. in his separate judgment in the same case (Thomas) has expressed that "it is by virtue of the notification of the President that the H 'Scheduled Castes' came into being".

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 725

... Reference also may be made to the observation of Krishna Iyer, J. in Akhil Bhartiya Soshit Karamchari Sangh v. Union of India and Others, A

I [1981] 2 SCR 185 at 234 where he has said:

"Terminological similarities are an illusory guide and we cannot go by verbal verisimilitude. It is very doubtful whether the expression caste will apply to Scheduled Cas- B tes. At any rate, Scheduled Tribes are identified by their tribal denomination. A tribe cannot be equated with a caste. As stated earlier, there are sufficient indications in the Constitution to suggest that the Scheduled Castes are not mere castes. 11 c There is a long line of decisions dealing with the significance of the r word 'caste' in relation to Hindus as being one of the relevant criteria, if not the sole criterion for ascertaining whether a particular person or group

! of persons will fall within the wider connotation of 'class'.

In M.R. Balaji v. State of Mysore, [1963] Suppl 1 SCR 439, Gajendragadkar, J. observed, "Though castes in relation to Hindus may D

be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be the sole or the dominant test in that behalf." E Subba Rao, J. speaking for the majority of the Constitution Bench in R. Chitralekha v. State of Mysore, [1964) 6 SCR 368 at 389 has stated:

"......what we intend to emphasize is that under no cir- r cumstances a "class" can be equated to a 11 casten, though the caste of an individual or a group of individual may be F considered along with other relevant factors in putting him in a particular class. We would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of Art. 15( 4) of the Constitution, it does not vitiate the classification if it satisfied other tests." G Mudholkar, J. in his dissenting judgment in considering the caste in determination of the backward class, has expressed his view thus: 11 it would not be in accordance either with cl. (1) .............

of Art. 15 or cl. (2) of Art. 29 to require the consideration H

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

A of the castes of persons to be borne in mind for determining what are socially and educationally backward classes. It is true that cl'. (4) of Art. 15 contains a non-obstante clause with the result that power conferred by that clause can be exercised despite the provisions of cl. (1) of Art. 15 and cl. (2) of Art. 29. But that does not justify the inference that castes have any relevance in determining what are socially and educationally backward communities.'

Wanchoo, C.J. speaking for the Constitution Bench in Minor P. Rajendran v. State of Madras & Ors, [1968) 2 SCR 786 at 790 pointed out that "if the reservation in question has been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of Article 15(1). But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole ~ is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally \ D backward class of citizens within the meaning of Article 15(4)'. (emphasis ' supplied).

The learned Chief Justice in support of his above observation has placed reliance on Ba/aj• E In State of Andhra Pradesh v. P. Sagar, [1968) 3 SCR 595, it has been observed:

"............ the expre~sion 11 class 11 means a homogeneous sec- tion of the people grouped together because of certain likenesses or common traits and who are identifiable by ' some common attributes such as status, rank, occupation, re;idcnce in a locality, race, religion and the like. In deter- mining whether a particular section forms a class, caste cannot be exduded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted."

In Triloki Nath v. J & K State, II [1969) 1 SCR 103 Shah, J. speaking for the Constitution Bench has reiterated the meaning of the word 'class' as defined in the case of Sagar and added that "for the purpose of Article H 16(4) in determining whether a section forms a class, a test solely based on

INDRA SAWHNEY v. U.0.L [PANDIAN, J.] 727

..... caste, community race religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution." A

I Further, this judgment reaffirms that view in Minor P. Rajendran's case to the effect that if the members of an entire ca~te or community at .~ a given time are socially, economically and educationally backward that caste on that account be treated as a backward class. This is not because B they are members of that caste or community but because they form a class.

Hegde, J. in A. Peerikaruppan, etc. v. State of Tamil N:idu, [1971] 2 SCR 430 at 443 has observed:

11 A caste has always been recongnised as class.'' c Vaidialingam, J. in State Andhra Pradesh and Ors. v. U.S. V. Bairam etc, [1972] 3 SCR 447 in his conclusion uphled the list of Backward Class in that case as they satisfied the various tests, which have been laid down / by this Court for asertaining the social and educational of a backwardness D { of a class even though the said list was exclusively based on caste. (emphasis our)

Chief Justice Ray in Ku.marl KS. Jayasree & Anr. v. The State of Kera/a & Anr, [1977] 1 SCR 194 was of the view that "In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the E caste of the group of citizens. Caste cannot however be made tb sole or dominant test. ... n

· Speaking for the Bench in U.P. State v. Pradip Tandon Ray, the r learned Chief Justice after stating that neither caste nor race nor religion can be made the basis of classification for the purposes of determining F

social and educational backwardness within the meaning of Article 15( 4) when Article 15(1) forbids discrimination on grounds only of religion, race caste · observed that caste cannot be made one of the criteria for deter- mining social and educational backwardness and that if the caste or religion is recognised as a criterion of social and educational backwardness, Article G 15(4) still stultify Article 15(1). Further, he observed that "It is true that Article 15(1) forbids discrimination only on the ground of religion, race, caste but when a classification taken recourse to caste as one of the criteria in determining socially and educationally backward classes, the expression 'classes' in that case violates the rule of expressio unius est exc/usio alterius. H

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

A The socially and educationally backward classes of citizens are groups other than groups based on caste." .;,,--

The learned Chief Justice also recognised the meaning of the expres- sion "classes of citizens" in line with the observation made in Triloki Nath (II)and Sagar (supra) and explained the traits of social backwardness, B economic backwardness and educational backwardness. ~.

See also Akhil Bhartia Soshit Karamchari Sangh (supra) and KC. Vasanth Kumar (supra).

C Though there is tremendous ambivalence in a host of judgments rendered by this Court, not even a single judgment has held that class has no relevance to caste at all wherever caste system is prevalent.

Collating the above sliid views expressed by this Court in a catena of decisions as regards the relevance and significance of the caste criterion \ D in the field of identification of 'socially and educationally backward classes' it may be stated that caste ·neither can be the sole criterion nor can it be equated with 'class' for the purpose of Article 16(4) for ascertaining the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of 'backward class'. Never- E theless 'caste' in Hindu society becomes a dominant factor or primary criterion in determining the backwardness of a class of citizens. Unless 'caste' satisfies the primary test of social backwardness as well as the educational and economic backwardness which are the established and accepted criteria to identify the 'backward class' a caste per se without satisfying the agreed formulae generally cannot fall within the meaning of F 'backward class of citizens' under Article 16(4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional ocrnpation of the lower strata - indicating the social backwardness.

True, the caste syr.tem is predominantly known in Hindu society and G nms through the entire fabric of the social structure. Therefore, the caste criterion cannot be divested from the other established and agreed criteria in identifying and ascertaining the backward classes.

It is said that the caste system is unknown to other e-0mmunities such as Muslims, Christians, Sikhs, Jews, Parsis, Jains ·etc. in whose respectiv~ H religion, the caste system is not recognised and permitted. But in practice,

INDRA SAWHNEY "· U.0.1. [PANDIAN, J.] 729

it cannot be irrefutably asserted that Islam, Christianity, Sikhism are all A completely immune from casteism.

There are marked distinctions in one form or another among various sections of the Mnslim community especially among converts to Islam though Islam does not recognise such kind of divisions among Muslims and professes only common brotherhood. B There are various sects or separate group of people in Muslim communities being identified by their occupation such as Pinjara in Gugarat, Dudekula (cotton beaters) in Andhra Pradesh, Labbais, Rowthar and Marakayar in Tamil Nadu. c Though Christianity does not acknowledge caste system, the evils of caste system in some States are as prevalent as in Hindu society especially among the converts. In Andhra Pradesh, there are Harijan Christians, Reddy Christians, Karnma Christians etc. Similarly, in Tamil Nadu, there are Pillai Christians, Marvar Christians, Nadar Christians and Harijan D Christians etc. That is to say all the converts to Christianity have not divested or set off themselves from their caste labels and crossed the caste barrier but carry with them the banners of their caste labels. Like Hindus, they interact and have their familiar relationship and marital alliances only within the converted caste groups. E Iil Tamil Nadu, after persistent effort and agitations some of the sections of people belonging to some castes or communities converted either to Islam or Christianity have become successful in having them included in the list of 'backward classes' on par with their corresponding .Hindu caste people. F The Government of Tamil Nadu on the basis of the report of the Second Backward Classes Commission issued a revised list of 'backward classes' by G.Q. Ms. No. 1564 (Social Welfare Department) dated 30th July 1985 wherein the following _castes and communities converted to Islam and Christianity are included for the purpose of reservation under Articles G 15(4) and 16(4) of the Constitution.

Serial No.

26 Converts to Christianity from Scheduled Castes irrespec- tive of the generation of conversion for the purpose of H

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

A reservation of seats in Educational Institutional and for seats in Public Services.

98* Labbais including Rowthar and Marakayar (whether their spoken language is Tamil or Urdu.)

B 100 Latin Catholics ..... : in Kanyakumari district and Shenkot- tah taluk of Tirunelveli district.

110 Meenavar, Parvatharajakularn, Pattanavar, Sembadavar (including converts to Christianity).

c 115 Mukkuvar or Mukayar (including converts to Christianity).

118 Nadar, Shanar and Grarnani, including Christian Nadar, Christian Shanar and Christian Grarnani.

136 Paravar including converts to Christianity (except in Kanya- D kumari district and Shenkottah taluk of Tirunelveli district where the community is a Scheduled Caste.)

* Item No. 98 denotes Muslim community.

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

"(5) Accordingly, the Government declare that, in addition to the Christian Converts mentioned in paragraph one above, the persons belonging to the other Christian com- munities who are converts from any Hindu community included in the list of Backward Classes also will be con- sidered as socially and educationally backward for the pruposes of Article 15( 4) of the Constitution.

(6) The Government also declare that, in addition to the H Christian converts mentioned in paragraph one above, the

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 731

persons belonging to the other Christian communities who A are converts from any Hindu community included in the list of Backward Classes also will be considered as Back- ward Classes of citizens and that they are not adequately represented in the services under the State with reference to Article 16(4) of the Constitution." B The Christian converts mentioned in the above G.O. relates to the list of Christian converts mentioned in G.0. Ms. Nci.,J564 dated 30th July 1985.

As per the statistics given in the Report of the Second Backward C Classes Commission, in Tamil Nadu out of 27,05,960 people belonging to Muslim minorities 25,60,195 are included in the backward list which works out to 94.61 % of the total Muslim population of the State. Similarly, among Christians, out of 31, 91, 988 of the total population, 25, 48, 148 are included in the backward list which works out to 79.83%. D The ·Nav. Budhlsts, and Neo Budhists the majority of whom are converts from Scheduled Castes enjoy the reservation on the ground that their low status in that community have not become advanced equal to the status of others and their social backwardness is not changed in spite of change of their religion. E Sikhism, no doubt, strictly believes in social equality and justice, ' denounces all sorts of social discrimination between man and man, strongly advocates the equality and parity in all humanity and propagates that caste, birth or colour cannot make one superior or inferior. All the Gurus of Sikhism have advocated and articulated the concept of equality of man as the basis of egalitarian society. Notwithstanding Sikhism is violently against casteism, some converts to Sikhism from the Scheduled Castes still retain their caste label.

Thus even among non-Hindus, there are occupational organisations or social. groups or sects which are having historical backward/evolution. They too constitute social collectives and form separate classes for the purposes of Article 16(4).

Though in India, caste evil originated from Hindu religion that evil has taken its root so deep in the social structure of all the Indian com- H

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

A munitjes and spread its tentacles far and wide thereby leaving no com- munity from being influenced by the caste factor. In other words, it cannot be authoritatively said the some of the communities belonging to any particular religion are absolutely free from casteism or at least from its shadow. The only difference being that the rigour of caste varies from religion to religion and from region to region. Of course, in some of the B communities, the influence of the caste factor may be minimal. So far as the Hindu society is concerned, it is most distressing to note that it receives sanction from the Hindu religion itself and perpetuated all through.

Reference may be made to paragraphs 12.11 to 12.16 of Chapter XII C of the Report.

After identifying in paragraph 12.18, the Commission has laid down the following tests for identifying non-Hindu OBCs:

"12.18 After giving a good deal of thought to these difficul- D ties, the Commission has evolved the following rough and ready criteria for identifying non-H'ndu OBCs:-

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

E (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: Dhabi, Teli, Dheemar, Nai, Gujar, Kumhar, Lobar, Darji, Badhai, etc.)" F Even assuming that the caste factor would not furnish a reliable yardstick to identify 'socially and educationally backward groups' in the communities other than Hindu community as there is no commonness since all sections of people among Budhists, Muslims, Sikhs and Christians etc. and as the respective religion of those communities do not recognise the· G caste system, yet on the principle of the other agreed criteria such as traditional occupation, trade, place of residence, poverty lack of education or economic backwardness etc. the social and economic backwardness of those communities could be identified independently of the caste criterion. Once these 'casteless societies' are tested on the anvil of the established relevant criteria de hors the caste criterion, there may not be any difficulty

INDRA SAWHNEY v. U.0.l. [PANDIAN, J.J 733

in identifying the social and educational backwardness of the section of the people of that community and classifying them as 'backward class of citizens' within the meaning of Article 16(4).

In this connection, reference may be made tu the observation of this Court in Chitra/ekha (supra) that "....... .if in a given situation caste is excluded in ascertaining a class within the meaning of Article 15(4) of the B Constitution, it does not vitiate the classification if it satisfied other tests."

More often than not, a question that is put forth is should the caste label be accepted as a criterion in ascertaining the social and educational backwardness of a group of persons or community. No doubt, it is felt that .C in identifying and classifying a group of persons or community as 'socially and educationally backward class', it should be done de hors the caste label. But all those who address such a question turn a blind eye to the existing stark reality that in the Hindu society ever since the caste system was introduced, till today, the social status of Hindu is so woven or inextricably intertwined and fused with the caste system to such an extent that no one in such a situation can say that the caste is not a primary indicator of social backwardness and that social backwardness is not identifiable with refer- ence to the caste of an individual or group of persons or community. However, painful and distasteful, it may be, we have to face the reality that under the hydraulic pressure of caste system in Hindu society, a major section of the Hindus under multiple caste labels are made ·to suffer socially,. educationally and economically. There appears no symptoms of early demise of this dangerous disease of caste system or getting away from the caste factor in spite of the fact that many reformative measures have been taken by the Government. Unless this caste system, unknown to other parts of the world is completely eradicated and all the socially and educa- tionally backward classes to whichever religion they belong inclusive of Scheduled Castes and Scheduled Tribes are brought up and placed on par with the advanced section of the people, the caste label among Hindus will continue to serve as a primary indicator of its social backwardness. G Though I am not inclined to exhaustively elaborate the untold agony and immeasurable sufferings undergone by the people in the lower strata under the label of their respective caste, I cannot avoid but citing a jarring piece of information appearing in the Report. The noted and renowned Sociologist Shri J.R. Kamb/e in Rise & Awakening of Depressed Classes in H