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

(vii) The Manda! report invents castes even for non-Hindus. The obsession with casteism ail.d the desire to apply the same yardstick to all indians impelled the Commission to identifiy backward classes among F non-Hindus also by the exclusive test of caste (paras 12.11 to 12.18) regardless of the fact that caste is anathema to christenity, Islam and Sikhism. There are various other denominations and religions in the country like Buddhist, Jains, Arya Smajis, Llngyats etc. who do not believe in casteism. The net-result is that almost 25% of the population was not taken into consideration by the Manda! Commission. The approach was - G anti-secular and against the basic features of the Constitution.

(viii) The Manda! Commission has estimated the population of other backward classes in the country as 52%. To say the least the exercise to reach the figure of 52% is wholly imaginary. It is in the realm of conjecture. H The conclusion arrived at in para 12.22 of the Manda! Report to the effect

INDRA SAWHNEY v. U.O.l. [KULDIP SINGH, J.] 859

that backward classes constitute nearly 52% of the Indian population is A based on 1931 census. It is wholly arbitrary to count the population of backward classes in the country on the basis of census which took place fifty years before the report was submitted. In order to reach the conclusion of 52% Manda! has added up the population of scheduled castes, scheduled tribes, non-Hindu communities (Muslims, Christians, Sikhs, Buddhists, Jains) and the forward Hindu castes and communities (Brah- B mans, Rajputs, Marathas, Jats, Vashya-Baniya etc., Kayastha, other for- ward Hindu castes/groups) which make 56.30% of the total population. Manda] has assumed that the residual population of 43.70% (100 minus 56.30 equivalent to 43.70%) consists of backward classes. It is difficult to imagine how anybody can accept such an illusory and wholly arbitrary calculations. It is pity that half of the country is being deprived of their fundamental right under Article 16(1) on the basis of the census exhumed from a sixty year old grave and the calculations which are unknown to logic and fair-play. Manda! further assumed, erron 'ously, that relative popula- tion growth of various communities at the time of Manda! report was the same as at the time of 1931 census. It is absured to thiuk that there was no change in their population growth during the long period of 50 years. It is pertinent to observe that Irnlia of 1931 comprised of present India, Pakis- tan, Bangladesh, Burma and Sri Lanka and as such it would be wholly erroneous to relate the caste-based population situation of 1931 to that of

(ix) According to Manda! Commission's own showing the materials before the Commission were woefully inadequate. Essential data was non- existent. "Hardly any State was able to give the desired information" (para 9.4). As regards representation of OBCs in Government services, the information received by the Commission was "too sketchy and scrappy for F any meaningful inference· which may be valid for the country as a whole"(para 9.14). "No State Government could furnish figures regarding the level of literacy and education amongst other backward class" (para 9.30. "No lists of OBCs is maintained by the Central Government, nor their particulars are separately compiled in Government offices" (para 9.47). G

Based on the reasoning and the conclusions reached by me in paras 'A' to 'K' of the judgment, I order and direct as under:-

(i) The identification of 3743 castes as a 11 backward class" H

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

A by Manda! Commission is constitutionally invalid and can- not be acted upon.

(ii) Office Memorandum dated August 13, 1990 issued by the Government of India is unconstitutional, non-est and as such cannot be enforced. B (iii) Para 2(i) of the Office Memorandum dated September 25, 1991 adopts the means - test. The adoption of means · test by the Government of India in principle is upheld. Since para 2(i) is applicable to the 3743 castes identified by the Manda! Commission, the said para shall not operate c till the time "backward classes" for the purposes of Article 16(4) are identified by the Government of India in accord- ance with the law laid-down in this judgement.

(iv) Para 2(ii) of the Office Memorandum dated September D 25,1991 is upheld. Since this para is integral part of the two Memoranda dated August 13, 1990 and September 25, 1991, it cannot operate independently. I, however, hold that the Government of Indian can mal<e reservations solely based on economic criterion by a separate order.

E The writ petition and all connected matters are disposed of in the above terms with no order as to costs.

SAWANT, J. In a legal system where the Courts are vested with the power of judical review, on occasions issues with social, political and economic overtones c~me up for consideration. They are commonly known as political questions. Some of them are of transient importance while others have portentous consequences for generations to come. More often than not such issues are emotionally hyper-charged and raise a storm of controversy in the society. Reason and rationalism become the first casualities, and sentiments run high. The Courts have, however, as a part of their obligatory duty, to decide them. While dealing with them the courts have to raise the issues above the contemporary dust and din, and examine them dispassionately, keeping in view, the long term interests of the society as a whole. Such problems cannot always be answered by the strict rules of logic. Social realities which have their own logic have also their role to play in resolving them. The present is an issue of the kind.

. INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 861

2. It is for :he first time that a Nine-Judge Bench has been constituted to consider issues arising out of the provisions for reservations in the services under the State under Article 16 of the Constitution. The obvious purpose is to reconsider, if necessary, the propositions of law so far laid down by this Court on the various aspects of the subject. While, therefore; it may be true that everything is at large and the Court is not inhibited in its approach and conclusions by the precedents, the view taken so far on certain facets of the subject, may be hard to disregard on the principle of stare decisis. This will be more so where certain situations have crystallised and have become a part of the soc.ial psyche over a period of time. They may be unsettled only at the risk of creating avoidable problems. c

3. The reservation in State employment is not a phenomenon unknown to this country. It is traceable to a deliberate policy of affirmative action or positive discrimination adopted in some parts of the country as early as in the begining of this cehtury. It is equally known to the employment under the Central Government where reservations in favour of the Scheduled Castes D and Scheduled Tribes have been in existence for a considerable time now. The reasons why the issue has assumed agitational proportion on account of the present reservations, may be varied. While it is true that the Court is concerned with the interpretation of the provisions of the Constitution on the subject and not either with the causes of the turmoil or the consequence of the interpretation of the law, it is equally ture that the Constitution being essentially a political document, has to be interpreted to meet the "felt necessities of the time". To interpret it, ignoring the social, political, economic and cultural realities, is to interpret it not as a vibrant document alive to the social situation but as an immutable cold letter of law uncon- cerned with the realities. Our Constitution, unlike many others, incorporates in it the framework of the social change that is desired to be brought about. "· The change has to be u!;hered in as expeditiously as possible but at the same time with the least friction and dislocation in national life. The duty to bring about the smooth change over is cast on all institutions including the judiciary. A deep knowledge of social life with its multitudinous facets and their interactions, is necessary to decide social issues like the present one. A G superficial approach will be counter-productive.

THE GROUND REALITIES

4. Because of its pernicious caste system which may truly be H

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

A described as its original sin, the Indian society has, for ages, remained stratified. The origin of the caste system is shrouded in speculation, neither the historians nor the sociologists being able to trace it in its present form to any particular period of time or region, or to a specific cause or causes. The fact, however, remains that it consists of mobility-tight hierarchical social compartments. Every individual is born in and, therefore, with a B particular caste which he cannot change. Hitherto, he had tu fulluw the occupation assigned to his caste and he could not even think of changing it. The mobility to upper caste is forbidden, even if to-day he pursues the professions and occupations of the upper caste. He continues to be looked upon as a member of the lower caste even if his achievements are higher c than of those belonging to the higher castes. In social intercourse, he has to take his assigned caste-place. The once casteless and unireligious Indian society of Vedic times became multifactious and multi-religious mainly on account of the rebellion of the lower castes against the tyranny of the caste system and their exploitation by the higher castes. Various sects emerged within the Hindu fold itself to challenge the inequitous system. Distinct religions like Buddhism, Jainism and Sikhism were born as revolts against casteism. When, therefore, first Islam and then Christianity made their entries here and ruled this country, many from the lower castes embraced them to escape the tyranny and inequaity, while some from the higher castes for pelf and power. However, the change of religion did not always succeed in eliminating castes. The converts carried with them their castes and occupations to the new religions. The result has been that even among Sikhs, Muslims and Christians casteism prevails in varying degrees in practice, their preaching notwithstanding. Only Zoroastrianism is an excep- tion to the rule; but that is because entry into it by conversion is impermis- sible. Casteism has thus been the bane of the entire Indian society, the difference in its rigidity being of a degree varying from religion to religion and from region to region.

5. One of the worst effects of casteism with which we are directly concerned in the present case, was that access to knowledge and learned was denied to the lower castes, for centuries. It was not till the advent of the British Rule in this country that the doors of education were opened to them as well as to women who were considered as much disentitled to education as the Shudras. Naturally, all the posts in the administrative machinery (except those of the menials) were manned by the higher castes, which had the monopoly of learning. The concentration of the executive

INDRA SAWHNEY v. U.O.l. [SAWANT, J.] 863

power in the hands of the select social groups had its natural consequences. A The most invidious and self-perpetuating consequence was the stranglehold of a few high castes over the administration of the country from the lower to the higher rungs, to the deliberate exclusion of others. Consequently, all aspects of the ligh were controlled, directed and regu- lated mostly to suit the sectional interests of a small section of the society B which numerically did not exceed 10% of the total population of the country. The state of the health of the nation was viewed through their eyes, and the improvement in its health was effected according to their prescrip- tion. It is naive to believe that the administration was carried on impartially, that the sectional interests were subordinated to the interests of the country and that justice was done to those who were outside the ruling fold. This C state of affairs continues even till this day.

6. To accept that after the inauguration of the Constitution and the introduction of adult franchise, there has been a change in the administra- tive power balance is to be unrealistic to the point of being gullible. D Undoubtedly, the lower castes and classes who constitute the overwhelming majority of no less than 75% of the population have secured for the first time in the hi,tory of this country, an advantage in terms of political leverage on account of their voting strength. We do see today that the political executive is not only fairly representative of the lower classes but many times dominantly so. But that.is on account of the voting power and E not on account of social, educational or economic advancement 'made by them. The entry into the administrative machinery does not depend on voting strength but on the competitive attainments requisite for the relevant administrative field and post. Those attainments can be had only as a result of the cumulative progress on social, educational and economic fronts. F Political power by itself cannot usher in such progress. It has to be exercised to bring about the progress. The only known medium of exercis- ing the power is the administrative machinery. If that machinery is not sympathetic to the purpose of the exercise, the political power becomes ineffective, and at times is also rendered impotent. The reason why, after forty four years of Independence and of vesting of political power in the G hands of the people, the same section which dominated the nation's affairs earlier, continues to do so even today, lies here.

7. The paradoxical spectacle of political power being unable to deliver the goods to whom it desires, is neither unique nor neW to this H

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

A country. This has happened and happens whenever the implementing machinery is at cross purposes with the political power. Faced with the · hostility of the administrative-executive to their plans for reform, realising the inequitous distribution of posts in the administration between different castes and communities, and being genuinely interested in lifting the dis- B advantaged sections of the society in their States, the enlightened Rulers of some of the .then Princely States took initiative and introduced reserva- tions in the administrative posts in favour of the backward easies and communities since as early as the first quarter of this century. Mysore and Kolhapur were among the first to do so. On accou!lt of the movement for social justice and equality started by the Justice Party, the then Presidency c of Madras [which then comprised the present State of Tamil Nadu, parts of the present Andhra Pradesh and Kerala] initiated reservations in the Government employment in 1921. It was followed by the Bomaby Presiden- cy which then comprised the major parts of the present States of Maharashtra, Karnataka and Gujarat. Thus the first quarter of this century saw reservations in Government employment in almost whole of the Southern India. It has to be noted that these reservations were not only in favour of the depressed classes which are today known as the Scheduled Castes, but also in favour of other backward castes and classes including what were then known as the intermediate castes. The policy did arouse hostility and resistance of the higher castes even at that time. The agitation against reservations to-day' is only a new incarnation of the same attitude of hostility. The resistance is understandable. It springs from the real prospect of the loss of employment opportunities for the eligible young. But the deeper reason of the high castes for opposing the reservation may be the prospect of losing the hitherto exclusive administrative power and having to share it with others on an increasing scale. When it is realised that in a democracy, the political executive has a limited tenure and the administrative executive wields the real power, [they can truly be described as the permanent politicians], the antipathy to reservation on a pitched note, propelled by the prospective loss of power, is quite intelligible. The G loss of employment opportunities can be made good by generating employ- ment elsewhere and by adopting a rational economic structure with · planned economy, planned population and planned education. That is where all sections of the society - whether pro or anti-reservation should concentrate. For even if all available posts are reserved or dereserved, they H

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 865

will not provide employment to more than an infinitesimal number. of either A of the sections. Unfortunately, it is not logic and sanity, but emotions and politics which dominate the issue. The loss of exclusive political power wielded through administrative machine, however, cannot be avoided ex- cept by perpetuating the status quo. B

8. The consequences of the status .quo .are s.tartling and ruinous to the country. One of the major causes of the backwardness of the country in all walks of life is the denial to more than 75% of the p!lpulation, !lf an opportunity to participate in the running of the affairs of the country. Democracy does not mean mere elections. It also means equal and effec- tive participation in shaping the destiny of the country. Needless to say that c where a majority of the population is denied its share in actual power, there exists no real democracy. It is a harsh reality. It can be mended not by running away from it or by ignoring it, but by taking effective workable rememdial measures. Those .who point to the. past achievements and the present progress of the country, forget that these achievements and the D progress are by a tiny section of the society who .got an opportunity to realise and use there talent. If all sections of the society ·had such oppor- tunity, this country's achievements is all fields a11d.walks of life would have been many times more. That this is a realistic .estimate and not a mere rhetoric is proved by history. Dr. Ambedkar belongs to the very recent past. If what is handed down to us history is to be believed, then the epic E 'Mahabharata' was penned by. Vya'a, who was born of a fisher woman; 'Ramayana' was authored by Valmiki, who belonged to a tribe forced to live by depredations. The immortal poet Kalidasa's ancestry is not known. These few instances demonstrate that intelligence, perception, character, scholarship and talent are not a monopoly of any section of the society. F Given opportunity, those who are condemned to the lowliest stations in life can rise to the loftiest status in society. One can only guess how much this country has lost for want of opportunities to the vast majority all these centuries. This aspect of the present and the past history has a bearing on 11 the umerit-contention advanced against reservations. G In this connection, it will be worthwhile quoting what Pandit Nehru had to say on the subject in "Discovery of India":-

"Therefore, not only must equal opportunities be given to all, but special opportunities for educational, economic and H

866 SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R. ... A cultural growth must be given to backward groups so as to enable them to catch up with those who arc ahead of them. Any such attempt to open the door of opportunities to all in India will release enormous energy and ability and trans- form the country with amazing speed."

B 9. The inequalities in Indian society are born in homes and sustained through every medium of social advancement. Inhuman habitations, limited and crippling social intercourse, low-grade educational institutions and degrading occupations perpetuate the inequities in myriad ways. Those who are fortunate to make their escape from these all-pervasive dragnets c by managing to attain at least the minimum of attainments in spite of the paralysing effects of the debilitating social environment, have to compete with. others to cross the threshold of their backwardness. Are not those attainments, however low by the traditional standards of measuring them, in the circumstances in which they are gained, more creditable? Do they not show sufficient grit and determination, intelligence, diligence, poten- tiality and inclination towards learning and scholarship? Is it fair to com- pare these attainment> with those of one who had all the advantages of decent accommodation with all the comforts and facilities, enlightened and affluent family and social life, and high quality education? Can the ad- vantages gained on account of the superior social circumstances be put in the scales to claim merit and flaunted as fundamental rights? May be in many cases, tiiuse coming from the high classes have not utilised their advantages fully and their score, though compared with others, is high, is in fact not so when evaluated against the backdrop of their superior advantages - may even be lower. With the same advantages, others might have scored better. In this connection, Dr. Ambedkar's example is worth citing. In his matriculation examination, he secured only 37.5% of the marks, the minimum for passing being 35% (See: "Dr. Ambedkar" by Dr. Dhananjay Keer]. If his potentialities were to be judged by the said marks, the country would have lost the benefit of his talent for all times to come.

G 10. Those who advance merit contention, unfortunately, also ignore the very basic fact - (though in other contexts, they may be the first to accept it) - that the traditional method of evaluating merit is neither scientific nor realistic. Marks in one-time oral or written test do not necessarily prove the worth or suitability of an individual to a particular H post, much less do they indicate his compartive calibre. What is more, for

INDRA SAWHNEY v. U.0.I. [SAWANT, J.] 867

different posts, different tests have to be applied to judge the suitability. A The basic problems of this country are mass-oriented. India lives in villages, and in slums in towns and cities. To tackle their problems and to implement measures to better their lot, the country needs personnel who have first- hand knowledge of their problems and have personal interest in solving them. What is needed is empathy and not mere sympathy. One of the major reasons why during all these years after Independence, the lot of the B downtrodden has not even been marginally improved and why majority of the schemes for their welfare have remained on paper, is perceptibly traceable to the fact that the implementing machinery dominated as it is by the high classes, is indifferent to their problems. The Manda! Commission's lament in its report, that it did not even receive replies to c the information sought by it from various Governments, departments and organizations on the caste-wise composition of their services, speaks volumes on the point. A policy of deliberate reservations and recruitment in administration from the lower classes, who form the bulk of the popula- tion and whose problems primarily are to be solved on a priority basis by any administration with democratic pretensions, is therefore, not only eminently just but essential to implement the Constitution, and to ensure stability, unity and prosperity of the country.

11. What should further not be forgotten is that hitherto for centuries, there have been cent per cent reservations in practice in all fields, in favour of the high castes and classes, to the total exclusion of others. It was a purely caste and class-based reservation. The administration in the States where the reservations are in vogue for about three quarters of a century now, further cannot be said to be inferior to others in any manner. The reservations are aimed at securing proper representation in administratiqn to all sections of the society, intelligence and administrative capacity being not the monopoly of any one class, caste or community, This would help to promote healthy administration of the counrty avoiding sectarian approaches and securing the requisite talent from all available sources.

11A. The assumption that the reservations lead to the appointment or admission of non-meritorious candidates is also not factually correct. In the first instance, there are minimum qualifying marks prescribed for appointment/admission. Secondly, there is a fierce competition among the backward class candidates for the seats in the reserved quota. This has resulted in the cut-off marks for the seats in the reserved quota reaching H

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

A near the cut-off line for seats in the general quota as some surveys made on .the subject show. A sample of such surveys made on the State of Tamil Nadu by Era Sezhian and published in the issue of the "Hindu" dated 8th October, 1990 may be reproduced here:

Selection to professional courses: Cut-off level B Course Open Backward Most Scheduled of Study Competition Backward Caste Engineering Course [Anna C Universty) Computer 97.98% %.58% 93.25% 84.38% Science Electronics 97.74% 96.08% 92.16% 82.22% Electrical 95.84% 95.42% 91.48% 81.98% Machaaical 95.78% 94.10% 90.66% 79.21% D Engg. Medical Course [University of Madras) M.B.B.S. 95.22% 93.18% 89.62% 83.98% Agricultural Course E [Agricultural Univesity, Coimbatore) B.Sc. Agri. 90.90% 90.08% 86.10% 78.04% B.E. Agri. 92.66% 91.96% 87.46% 76.14% Veterinary F [Tamil Nadu Veterinary & Animal Sciences University] BVSc. 94.90% 93.48% 91.18% 85.24% BFSc. 96.96% 95.58% 95.02% 93.02%

G By what logic can it be said that the above marks secured by the candidates from the backward classes are not meritorious?

12. 'i lie reservations by their very nature have, however, to be imagina- tive, discriminating and gradual, if they are to achieve their desired goal. A H dogma,ic, u:irealistic and hasty approach to any social problem proves, more

INDRA SAWHNEY v. U.0.1. [SAWANT, J.) 869

often than not, self-defeating. This is more so when ills spread over centuries are sought to remedied. It is not possible to remove the backlog in repre- sentation at all levels of the administration in one generation. More difficult it is to do so in all fields and all branches of administration, and at the same pace. It will not only be destructive of the object of reservations, but will -.:i, positively be harmful even to those for whom it is meant - not to speak of the society as a whole. It must be remembered that some individual exceptions apart, even the advanced classes have not made it to the top in one genera- tion. Such exceptions are found in backward classes as well.

PHILOSOPHY AND OBJECTWES OF RESERVATIONS

13. The aim of any civilised society should be to secure dignity to c every individual. There cannot be dignity without equality of status and opportunity. The absence of equal opportunities in any walk of social life is a denial of equal status and equal participation in the affairs of the society and, therefore, of its equal membership. The dignity of the in- dividual is dented in direct proportion to his deprivation of the equal D access to social means. The democratic foundations are missing when equal opportunity to grow, govern, and give one's best to the society is denied to a sizeable section of the society. The deprivation of the opportunities may be direct or indirect as when the wherewithals to avail of them are denied. Nevertheless, the consequences are as potent. E

14. Inequality ill-favours fraternity, and unity remains a dream without fraternity. The goal enumerated in the preamble of the Constitu- tion, of fraternity assuring the dignity of the individual and the untity and integrity of the nation must, therefore, remain unattainable so long as the equality of opportunity is not ensured to all. F

15. Likewise, the social and political justice pledged by the Preamble of the Constitution to be secured to all citizens, will remain a ~yth unless first economc justice is guaranteed to all. The liberty of thought _and expression also will remain on paper in the face of economic deprivations. A remunerative occupation is a means not only of economic upliftment but G also of instilling in the individual self-assurance, self-esteem and self- worthiness. It also accords him a status and dignity as an independent and useful member of the society. It enables him to participate in the affairs of the society without dependence on, or domination by, others, and on an equal plane depending upon the nature, security and remuneration of the H

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

A occupation. Employment is an important and by far the dominant remuneratiVe occupation, and when it is with the Government, semi· Government or Government-controlled organisation, it has an added edge It is coupled with power and prestige of varying degrees and nature, depending upon the establishment and the post. The employment under the State, by itself, may, many times help achieve the triple goal of social, economic and political justice. ·

16. The employment - whether private or public - thus, is a means of social levelling and when it is public, is also a means of. directly participat- ing in the running of the affairs of the society. A deliberate attempt to secure it to those who were designedly denied the same in the past, is an attempt to do social and economic justice to them. as ordained by the . Preamble of the Constitution. "

17. lt is no longer necessary to emphasise that equality contemplated by D Article 14 and other cognate Article including Article 15(1), 16(1), 29(2) and 38(2) of the Constitution, is secured out only when equals are treated equally but also when unequals are treated unequally. Conversely, when unequals are treated equally, the mandate of equality before law is breached. To bring about equality between the unequals, therefore, it is necessary to adopt positive measures to abolish inequality. The equalising measure will have to E ·use the same tools by which inequality was introduced and perpetuated. Otherwise, equalisation will not be of the unequals. Article 14 which guaran- . tei:s equality before law would by itself, without any other provision in the Constitution, be enough to validate such equalising measures. The founders of the Constitution, however, thought it advisable to incorporate another . F provision, viz., Article 16 specifically providing for equality of opportunity in matters of public employment. Further.they emphasised in clause (4) thereof . that for equalisiii"'gthe employment opportunities in the services under the State, the State may adopt positive measures for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the · State, is not adequately represented in such services. By hind sight, the (j foresight shown in making the provision specifi~y, instead ofleaving it only to the equalty provision as under the U.S. Constitution, is more than vindi- . cated. In spite of decisions of this Court on almost all aspects of the problem, · spread over the past more than forty years now, the validity, the nature, the co11tent and the extent of the reservation is still under debate. The absence of such .provision may well have led to total denial of equal opportunity in the

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 871

most vital sphere of the State activity. Consequently, Article 38(2) which requires the State in particular to strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also among groups of people residing in different areas or engaged in different vocations, and Article 16 which enjoins upon the State to promote with special care the educational and economic interests of the weaker sections of the people, and to protect them from social injustice and all forms of exploitation, and Article 335 which requires the State to take into consideration the claims of the Scheduled Castes and Scheduled Tribes in making the appointments to services and posts under the Union or States, would have, all probably remained on paper. c

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

19. Under Article 16(4), the reservation in the State employment is 11 to be provided for a nclass of people" which must be "backward" and in the opinion of the State!! is 11 not adequately represented" in the services of the State. Under Article 46, the State is required to "promote with special E care11 the 11 educational and economic interests11 of the 11weaker sections" of the people and "in particular", of the Scheduled Castes and Scheduled Tribes, and "to protect" them from "social injustice" and 11 all forms of 11 exploitation Since in the present case, we are not concerned with the •

reservations in favour of the SCs/STs, it is not necessary to refer to Article F 335 except to point out that, it is in terms provided there that the claims of SCs/ STs in the services are to he taken into consideration, consistently with the maintenance of efficiency of administration. It must, therefore, mean that the claims of other backward class of citizens and weaker sections must also be considered consistently with the maintenance of the efficiency. For, whomsoever, therefore, reservation is made, the efficiency G of administration is not to be sacrificed, whatever the efficiency may mean. That is the mandate of the Constitution itself.

20. The various provisions in the Constitution relating to reservation, therefore, acknowledge that reservation is an integral part of the principle H

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

A · of quality where inequalities exist. Further they accept the reality of ine- qualities and of the existence of unequal social groups in the Indian societv. They are described variously as 'socially and educationally backward chs- . ses' [Article 15(4} and Article 340), 'backward class' [Article 16(4)} ond 'weaker sections of the people' [Article 46). The provisions..of the Con~ stitution also direct that the unequal representation in the services be remedied by taking measures amied at providing employment to the dis- criminated class, by whatever different expressions the said class is described. ttow does one identify the discriminated class is a question of methodology. But once it is identified, the fact that it happens to be a caste, race, or occupational group, is irrelevant_ If the social group has hitherto been denied opportunity on the basis of caste, the basis of the remedial reservation has also to be the caste_ Any other basis of reservation may perpetuate the status quo and may be inappropriate and unjustified for remedying the discrimination. When, in such circumstances, provision is made for reservationS, for example, on the basis of caste, it is not a reservation in favour of the caste as a 'caste' but in favour of a class or social group which has been discriminated ·against, which discrimination cannot be eliminated, otherwise. What the Constitution forbids is dis- criminatio!l 'only' on the basis of caste, race etc. However, when the caste also happens to be a social group which i> 'backward' or 'socially and educationally backward' or a 'weaker section', this discriminatory treat- E men! in its favour, is not only on the basis of the caste.

2L The objectives of reservation may be spelt out variously. As the U.S. Supreme Court has stated in different celebrated cases, viz., Oliver Brown et aL v. Board of Education of Topeka et al., 347 US 483 : 98 L F Ed. 8731, Spottswood Thomas Bolling et. al. v. C. Melvin Sharpe et. al., 347 US 497: 98 L Ed. 884, Ma;r; De[unis et. aL v. Charles Odegaard, 416 US · 312: 40 L. Ed. 2d 164, Regents of the University of California v.Allan Bakke, 438 US 265 : 57 L Ed. 2d 750, H. Earl Fullilove et. al. v. I'hilip M. KJutznick, 448 US 443 : 65 L. Ed. 2d 902, and Metro Broadcasting, Inc. v. Federal Crmmudc~·tons Commission, 111 L. Ed. 2d 445, rendered as late as on G :i,,,,,, 27. 1?9!1, the res~1vation or affirmative action may be undertaken to r~movc the 'persisting or present and continuing effects of past discrimina- tion'; to lift the "llmitation on access to equal opportunities'; to grant 'opportunity for full participation in the governance' of the society; to recognise and discharge 'special obligations'; towards the disadvantaged and discriminated scicial groups"; "to overcome substantial chronic under-

\ INDRA SAWHNEY v. U.0.l. [SAWANT, J.] 873

representation of a social griJup"; or "to serve the important governmental objectives'. What applies to American society, applies er proprio vigore to - OU'" society. The discrimination in our society is more chronic and its Mntinuing effects more discernible and disastrous. Unlike in America, the ail pervasive discrimination here is against a vast majority.

22. As has been pointed out earlier, our Constitution itself spells out the important objectives of the State Poilicy. There cannot be a more compelling goal than to achieve the unity of the country by integration of different social groups. Social integration cannot be achieved without giving equal status to all. The administration of the country cannot also be carried on impartially and efficiently without the representation in it of all the social groups and interests, and without the aid and assistance of all the views and social experiences. Neither democracy nor unity will become real, unless all sections of the society have an equal and effective_ voice in the affairs and the goverance of the country.

23. In a society such as ours where there exist forward and backward, higher and lower social groups, the first step to achieve social integration is to bring the lower or backward social groups to the level of the forward or higher social groups. Unless all social groups are brought on an equal cultural plane, social intercourse among the groups will be an impos- siblility. Inter-marriage as a matte~ of eourse and without inhibitions is by far the most potent means of effecting social integration. Inter-marriages between different social groups would not be possible unless a11· groups attain the same cultural level Even in the same social group, marriages take place only between individuals who are on the same cultural plane. Culture is a cumulative product of economic aiid-educational attainments leading to social accomp~ent and refinement of mind, morals and taste. 'Employment and particularly the governmental employment promotes· economic and social advancement which in turn also leads to educational advancement of the group. Though it is true that economic and educational - advancement i• not neces.s:lrily accomranied by cultural growth, it is also eq'.J~l!y I~<> !hi. without. thtm, r1tltur:tl advancement is difficult. Employ- G To rntm is. thu5 an importa'lt ;iiu for cultural grov.th. achieve total unity and integrati,on. of the nation, rese.rvations in employment are, therefore,. imperative, in· the present state of our society. ·

24. Under the Constitution, the reservations in employment in favour H

874 SUPREME COURT REPORTS IJ992) SUPP. 2 S.C.R.

A of backward classes arc not intended either to be indiscriminate or per- manent. Article 16(4) which provides for reservations, also at the same time prescribes their limits and conditions. In the first place, the reservations arc not lo be kept in favour of every backward class of citizens. It is only thal backward class of citizens which, in the opinion of the State, is "nol adequately represented" in the services under the State, which is entitled B to the benefit of the reservations. Secondly, and this follows from the first, even that backward class of citizens would cease to be the beneficiary of the reservation policy, the moment the State comes to the conclusion that it is adequately represented in the services.

c THE IMPUGNED ORDERS OF THE GOVERNMENT

25. In order to appreciate the relevance of the questions which are to be answered by this Court, it is necessary first to analyse the provisions '\ of the two impugned orders. The first order dated 13th August, 1990, D acknowledges the fact that our society is multiple and undulating, and expressly refer& to the Second Backward Classes Commission, popularly known as Manda! Commission and its report submitted to the Government of India on 31st December, 1980 and the purpose for which the Commis- sion was appointed, viz., for early achievement of 11 the objective of social justice" enshrined in the Constitution. The order then states that the E Government have considered carefully, the report of the Commission and 1 11 the recommendations of the Commission in 'the present context regarding the benefits lo be extended to the "Socially and Educationally Backward Classes" (SEBCs) as opined by the Commission. The order further declares that the Government are of the clear view that at the outset "certain F weightage is to be provided to such classes in the services of the Union and other public undertakings". With this preface, the order proceeds to-

(1) provide for reservation of 27% of the vacancies in civil posts and services under the Union Government to G 11 SEBCsO!;

(2] restrict the reservations to the vacancies to be filled in by direct recruitment only (and thus by necessary im- plication excludes reservations in recruitment by H promotion);

INDRA SAWHNEY v. U.0.1. [SAWANT, l.] 875

[3] leave the procedure to be followed for enforcing reser- A vation to be detailed in instructionc;, to be is..i:;.ued separately;

[4] make it clear that those belonging to SEBCs who enter into services in the open i.e., unreserved category are not to be counted for the purpose of calculating the B reserved quota of 27%;

[5] specify that in the first phase of reservation, it is only SEBC castes and communities which are common to both the lists given in the report of the Manda! Com- mission and the list prepared by the State Government, c would be the beneficiaries of the reservations;

[6] state that the list of such common castes and com- munities will be issued by the Government separately;

[7] give effect to the reservation from 7th August, 1990; D and

[8] explain that the reservation quota will apply not only to the services under the Government of India but also to the services in the public sector undertakings and financial institutions including the public sector banks;·

26. This order was amended by the second order of 25th September,

1991. The first purpose of the amendment, as stated in the opening paragraph of the order is to classify the SEBCs into two categories, namely, SEBCs and the poorer sections of the SEBCs, and to give the latter the benefit of reservations on preferential basis. The second purpose is to carve

- out a new category of "Other Economically Backward Sections" of the people. (OEBSs) which arc not covered by any existing schemes of reser- vati0n, and to provide reservation in services _for them. To effectuate these two objectives, the order pro\ides that · G [l] out of lhe 27'?{. of the vacancie~ reserved for SEBCs, preference shall be given to candidates belonging to poorer sections of SEBCs. If sufficient number of candidates belonging to poorer sections of SEBCs are not available, the unfilled vacancies shall be filled by H

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

A other SEBC candidates;

[2] 10% of the vacancies in civil posts and services shall be reserved for "Other Economically Backward Sec- tions of the people" (OEBSs);

B [3] The criteria for determining poorer sections of the SEBCs as well as OEBSs are to be issued separately.

The effect of the second order is to increase the reservations by 10% making the total reservations in the civil posts and services 59-1/2%, C 22-1/2% for SCs/STs + 27% for SEBCs + 10% for OEBSs.

27. As has been pointed out earlier, Article 16(4) does not use the expression "Socially and Economically Backward Classes". Instead it uses the expression "Backward Classes of Citizens". It is Article 15(4) and Article 340 which use the expression "Socially and Educationally Backward D Classes". Since the judicial decisions have equated the expression "back- ward class of citizens" with the expression "Socially and Educationally Backward Classes of Citizens", it appears that the impugned order have used the two expressions synonyrccously to mean the same class of citizens. The second order has gone even further. It has carved out yet another class of beneficiaries of reservation, namely, "Other Economically Backward Sections". As would be pointed out a little later, this new class of citizens cannot be a beneficiary of reservations in services under clause (4) of Article 16 nor under Clause (1) thereof.

We may now proceed to deal with the specific questions raised before us.

Question I

Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the rig~: to reservation of posts in - G services under the State?

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 877

an exception to clause (1) thereof, but is merely an emphatic way of stating A what is implicit in clause (1).

29. Equality postulates not merely legal equality but also real equality. The equality of opportunity has to be distinguished from the equality of results. The various provisions of our Constitution and par- ticularly those of Article 38, 46, 335, 338 and 340 together with the B Preamble, show that the right to equality enshrined in our Constitution is not merely a formal right or a vacuous declaration. It is a positive right, and the State is under an obligation to undertake measures to make it real and effectual. A mere formal declaration of the right would not make unequals equal. To enable all to compete with each other on equal plane, c it is necessary to take positive measures to equip the disadvantaged and the handicapped to bring them to the level of the fortunate advantaged. Articles 14 ond 16 (1) no doubt would by themselves permit such positive measures in favour of the disadvantaged to make real the equality guaran- teed by them. However, as pointed out by Dr. Ambedkar while replying to the debate on the provision in the Constituent Assembly, it became neces- sary to incorporate clause (4) in Article 16 at the insistence of the members of the Assembly and to allay and apprehensions in that behalf. Thus, what was otherwise clear in clause (1) where the expression "equality of oppor- tunity" is not used in a formal but in a positive sense, was made explicit in clause ( 4) so that there was no mistake in understanding either the real import of the "right to equality" enshrined in the Constitution or the intentions of the Constitution-framers in that behalf. As Dr. Ambedkar has stated in the same reply, the purpose of the clause (4) was to emphasise that "there shall be reservation in favour of certain communities which have not so far had a proper look into, so to say, in the administration". F

30. If, however, clause (4) is treated as an exception to clause (1), an important but unintended consequence may follow. There would be no other classification permissible under clause (1), and clause (4) would be deemed to exhaust all the exceptions that can be made to clause (1). It G would then not be open to make provision for reservation in services in favour of say, physically handicapped, army personnel and freedom fighters and their dependents, project affected persons, etc. The classification made in favour of persons belonging to these categories is not hit by clause (2). Apart from the fact that they cut across all classes, the reservation in their H

878 SUPREME CCVRT REPORTS [1992) SUPP. 2 S.C.R.

A favour are made on considerations other than that of backwardness within the meaning of clause (4). Some C/f them may belong to the backward classes while some may belong to forward classes or classes which have an . adequate representation in the services. They are, however, more disad- vantaged in their own class whether backward or forward. Hence, even on B this ground it will have to be held that Article 16(4) carves out from various classes for whom reservation can be made, a specific class, viz., the back- ward class of citizens, for emphasis and to put things beyond doubt.

31. For these very reasons, it will also have to be held that so far as "backward classes" are concerned, the reservations ~or them can only be c made under clause (4) since they have been taken out from the classes for which reservation can be made under Article 16(1). Hence, Article 16(4) is exhaustive of all the reservations that can be made for the backward classes as such, but is not exhaustive of reservations that can be made for classes other than backward classes under Article 16(1). So also, no reservation can be made under Article 16(4) for classes other than "back- ward classes" implicit in that Article. They have to look for their reserva- tions, to Article 16(1).

32. It may be added here that reservations can take various forms whether they are made for backward or other classes. They may consist of preferences, concessions, exemptions, extra facilites etc. or of an exclusive quota in appointments as in the present case. When measures other than an exclusive quota for appointments are adopted, they form part of the reservation measures or are ancillary to or necessary for availing of the reservations. Whatever the form of reservation, the backward classes have to look for them to Article 16(4) and the other classes to Article 16(1).

Question II:

What would be the content of the phrase "Backward Class" G in Article 16(4) of the Constitution and whether caste by itself could constitute a class and whether economic criterion hy itself could identify a class for Article 16( 4) and whether "Backward Classes" in Article 16( 4) would include the "weaker sections11 mentioned in Article 46 as well?

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 879

33. The courts have, as will be instantly pointed out, equated the expression 11 backward classts of citizens11 with the expression "Socially and Educationally Backward Classes of citizens ["SEBCs" for short] found in Article 15(4) and Article 340. Even the impugned orders have used the expression "socially and educationally backward classes of citizens". As a matter of fact, since the impugned orders have chosen to give the benefit of reservation expressly to SEBCs and since it is not suggested that SEBCs are not "backward class of citizens" within the meaning of Article 16( 4), the discussion on the point is purely academic in the present case.

34. In this connection, a reference may first be made to Artie.le 335 of the Constitution. There is no doubt that backward classes under Article C 16( 4) would also include SCs/STs for whose entry into services, provision is also made under Article 335. There is, however, a difference in the language of the two Articles. Whereas the provision of Article 16(4) is couched in an enabling language, that of Article 335 is in a mandatory cast. It appears that it became necessary to make the additional provision of D reservation for SCs/STs under Article 335 because for them the reserva- tions in services were to be made as obligatory as reservations in the House of the People and the Legislative Assemblies under Articles 310 and 332 respectively. When we remember that Articles 330, 332 and 335 belong to the family of Article in Part XVI which makes "Special Provisions Relating E to Certain Class'', the additional and obligatory provision for SCs/STs under Article 335 bacomes meaningful. It is probably because of the mandate of Article 335 and the level of backwardness of the SCs/STs - the most backward among the backward classes - that it also became necessary to caution and emphasise in the same vein, that the imperative claims of F the SCs/STs shall be taken into consideration consistent Iv with the efficien- cy of the administration, and not by sacrificing it. It cannot, however, be doubted that the same considerations will have to prevail while making provisions for reservations in favour of all backward classes under Article 16(4). To hold otherwise would not only be irrational but discriminatory between two classes of backward citizens. G

35. We may now analyse Article 16 in the light of the question. In the first instance, it is necessary to note that neither clauses (1) and (2) of Article 16 read together, nor clause (2) of Article 29 prohibits discrimina- tion and, therefore classification, which is not made only on the ground of H

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

A religion, race, caste, sex, descent, place of birth, residence or any of them. They do not prevent classification, if religion, race, caste etc. are coupled with other grounds or considerations germane for the purpose for which it is made. ~econdly, clauses (1) and (2) of Article 16 prevent discrimination against individuals and not against classes of citizens. Thirdly, clause (4) of B Article 16 ·enables the State to make special provision in favour of any backward "class" of citizens and not in favour of citizens who can be classified as backward. The emphasis is on "class of citizens" and not on 'citizens". Fourthly, as has already been pointed out earlier, the class of citizens under Article 16(4) has not only to be backward but also a class C which is not adequately represented in the services under the State. Fifthly, when we remember that the Scheduled Castes and Scheduled Tribes are also the members of the backward classes of citizens within the meaning of Article 16(4), the nature of backwardness of the backward class of citizens is implicit in Article 16(4) itself. Further, Part XVI of the Constitu- D tion which makes special provision under Article 338 for National Com- mission for Scheduled Castes and Scheduled Tribes for investigating their conditions, makes a similar provision under Article 340 for appointment of Commission to investigate the conditions also of "socially and educationally backward classes of citizens". The two provisions leave no doubt about the kind of backwardness that the Constitution takes care of in Article 16(4). E What is more, clause (4) of Article 15 which was added after the decision in The State of Madras v. Srimathi Champakam Dorairajan etc., [1951] SCR 525, 'pecifically mentions that nothing in Article 15 or in clause (2) of Article 29, shall prevent the State from making any special provision for the advancement of and "socially and educationally backward classes of F citizens or for the Scheduled Castes and Scheduled Tribes". The sig- nificance of this amendment should not be lost sight of. It groups "socially and educationally backward classes" with "Scheduled Castes and Scheduled Tribes". When it is remembered that Article 341 and 342 enable the President to specify by notification, the Scheduled Castes and Scheduled G Tribes, it can hardly be debated that such specifications from time to time may only be from .the socially and educationally backward classes or from classes whose economic backwardness is on account of their social and educational backwardness.

H We may now refer to the decisions of this Court on the point.

INDRA SAWllNEY v. U.0.1. [SAWANT, J.] 881

36. In M.R. Ba/aji & Ors. v. State of Mysore, [1963] Supp. 1 SCR 439, A what fell for consideration was Article 15(4), and on the language of the said Article, it was held by this Court that the backwardness contemplated by the said Article was both social and educational. It is not either social or educational but it is both social and educational. In Janki Prasad Parimoo & Ors. etc. etc. v. State of !ammu & Kashmir & Ors., [1973] 3 SCR 236, which was a case under Article 16(4), this Court read "backward class B of citizens" in Article 16(4) as "socially and educationally backward class of citizens", although Justice Palekar who delivered the judgment for the Court, proceeded to equate the two expressions on the assumption that "it was well·settled that the expression "backward class" in Article 16(4) means the same thing as the expression "any socially and educationally backward c classes of citizens" in Article 15(4). It is true that no decision prior to this decision had in terms sought to equate the two expressions, and to that extent the sairl statement can be faulted as it is sought to be done before us. D In KC. Vasanth Kumar & Anr. v. State of Kamataka, [1985] Supp. 1 SCR 352, this Court was called upon to express opinion on the issue of reservation which may serve as a guideline to the Commission which the Government of Karnataka proposed to appoint for examining the question of affording better employment and educational opportunities to the Scheduled Castes and Scheduled Tribes and other backward classses. E Hence, the interpretation of the expression ''backward class of citizens" under Article 16(4) and of the expression "socially and educationally backward classes" under Article 15(4) and their co-relation, fell for con- sideration directly. The five Judges of the Bench with the exception of Chief Justice Chandrachud expressed their opinion on these two expres- F sions. Desai, J. held that "Courts have more or less .........veered round to the view that in order to be socially and educationally backward classes, the group must have the same indicia as Scheduled Castes and Scheduled Tribes". The learned Judge then proceeded to deal with what, according to him, was a narrow question, viz., whether caste-table should be sufficient to identify social and educational backwardness. However, it appears that G the learned Judge proceeded on the footing that the expression "backward class of citizens" was synonymous with the expression "socially and educa- tionally backward classes of citizens". There is no discussion whether the two expressions are in fact similar and of the reasons for the same. Chinnappa Raddy, J. dealt with the two expressions a little extensively and H

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

A came to the conclusion as follows: "Now, it is not suggested that the socially and educationally backward classes of citizens and the Scheduled Castes and Scheduled Tribes for whom special provision for advance- ment is contemplated by Article 15(4) are distinct and B separate from the backward classes of citizens who arc inadequately represented in the services under the State for whom reservation of posts and appointments is con- templated by Article 16(4). 'The backward classes of citizens' referred to in Article 16(4), despite the short c description, are the same as 'the socially and educationally backward classes of citizens and the Scheduled Castes and the Scheduled Tribes', so fully described in Art. 15 (4): Vide Trilokinath Tiku v. State of Jammu & Kashmir, and other cases." •

D Sen, J. also appears to have proceeded on the footing that the two expressions, viz., 11 socially and educationally backward classes 11 under Ar~ ticle 15(4) and "backward class of citizens" under Article 16(4) are synonymous.

Venkataramiah, J. [as he then was] held that "Article 15(4) and E Article 16(4) are intended for the benefit of "those who belong to castes, communities which are traditionally disfavoured and which have suffered societal discrimination in the past". The other factors such as physical disability, poverty, place of habitation etc. - according to the learned Judge - were never in the contemplation of the makers of the Constitution while F enacting these clauses." The learned Judge has held that "while relief may be given in such cases under Article 14, 15(1) and Article 16(1) by adopting a rational principle of classification, Article 14, Article 15(4) and Article 16(4) cannot be applied to them". The learned Judge has further held that "it is now accepted that the expressions 'socially and educationally back- G ward classes of citizens' and 'the Scheduled Castes and the Scheduled Tribes' in Article 15(4) of the Constitution together are equivalent to 'backward class of citizens' in Article 16(4)".

37 .• There is, therefore, no doubt that the expression "backward class of citizens" is wider and includes in it "socially and educationally backward H classes of citizens" and "Scheduled Castes and Scheduled Tribes".

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 883

38. The next question is whether the social and educational back- A wardness of the other backward classes has to be akin to or of the same level as that of the Scheduled Castes and the Scheduled Tribes. It is true that some decisions of this Court such as Balaji [supra). and State of Andhra Pradesh & Anr. v. P. Sagar, [1968) 3 SCR 595, have taken the view that the backwardness of the backward class under Article 16{4) being social and B educational, must be similar to the backwardness from which the Scheduled Castes and the Scheduled Tribes suffer. In'Balaji it is stated:

"It seems fairly clear that the backward classes of citizens for whom special provision is authorised to be made are, by Article 15{4) itself, treated as being similar to the C Scheduled Castes and Scheduled Tribes. Scheduled Castes and Scheduled Tribes which have been defined were known to be backward and the Constitution makers felt no doubt that special provision had to be made for their advancement. It was realised that in the Indian society there were other classes of citizens who were equally, or D may be somewhat less, backward than the Scheduled Cas- tes and Tribes and it was thought that some special provision ought to be made even for them. 11

After referring to the provisions of Articles 338(3), 340(1), 341 and E 342, the Court proceeded to hold as follows:

'It would thus be seen that this provision contemplates that some Backward Classes may by the Presidential order be included in Scheduled Castes and Tribes. That helps to bring out the point that the Backward Classes for whose improvement special provision is contemplated by Art. 15{4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes".

39. The test laid down above of similarity of social and educational backwardness was accepted in P. Sagar [supra).

40. However, in State of Andhra Pradesh & Ors. v. U.S. V. Bairam etc., [1972) 3 SCR 247, the earlier view has been e.xplained by pointing out that the above decisions do not lay down th•t backwardness of the other backward classes must be exactly similar in all respects to that of the H

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

A Scheduled Castes and the Scheduled Tribes. Further, in Parimoo [supra] the lest laid down in Balaji has been explained in the following words:

'Indeed all sections in the rural areas deserve encourage- ment but whereas the former by their enthusiasm for education can get on without speical treatment, the latter B require lo be goaded into the social stream by positive efforts by the Sta~e. That accounts for the raison d'etre of the principle explained in Balaji's case which pointed out that backward classes for whose improvement special provision was contemplated by Article 15(4) must be com- c parable to Scheduled Castes and Scheduled Tribes who are standing examples of backwardness socially and educa- tionally. If those examples are steadily kept before the mind the difficulty in determining which other classes should be ranked as backward classes will be considerably eased.'

D In Kumari K.S. Jayasree and Anr. v. State of Kera/a & Anr., [1977] 1 SCR 194 at 197-198, it is stated:

"Backward classes for whose improvement special provisions are contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled E Castes and Scheduled Tribes. This Court has emphasised in decisions that the backwardness under Article 15(4) must be both social and educational.

xxx xx xx xx xx xx xx x F The Concept of backwardness in Article 15(4) is not in- tended to be relative in the sense that classes who are backward in relation to the most advanced classes of society should be included in it."

G 41. These observations will also show that the test of comparable backwardness laid down in Ba/aji has not been and is not to be, understood to mean that backwardness of the other backward classes has to be of the same degree as or identical in all respects to, that of the Scheduled Castes and Scheduled Tribes. At the same time, the backwardness is not to be H measured in terms of the forwardness of the forward classes and those who

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 885

are less forward than the forward are to be classified as backward. The A expression 11backward class of citizens 11 , as stated earlier, has been used in Article 16(4) in a particular context taking into consideration the social history of this country. The expression is used to denote those classes in the society which could not advance socially and educationally because of the taboos and handicaps created by the society in the past or on account of geographical or other similar factors. In fact, the expression "backward B classes" could not be adequately encompassed in any particular formula and hence even Dr. Ambedkar while replying to the debate on the point stated as follows:

"If honourable members understand this position that we c have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far repre- sentation in the State, then, 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 altogether. 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 introducing 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. But I think honourable members will realise that the Draft- ing Committee which has been ridiculed on more than one ground for producing sometimes a loose draft, sometimes something which is not appropriate and so on, might have opened itself to further attack that they produced a Draft Constitution in which the exception was so large, that it left no room for the rule to operate. I think this is sufficient to • justify why the word 'backward' has been used.

............Somebody asked me: "What is a backward com- G munity"? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Govern- menf'. H

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

A 42. It will have, therefore, to be held that the backwardness of the backward classes other than the Scheduled Castes and Scheduled Tribes who are entitled to the benefit of the reservations under Article 16(4), need not be exactly similar in all respects to the backwardness of the Scheduled Castes and Scheduled Tribes. That it is not necessary that the social, educational and economic backwardness of the other backward classes B should be exactly of the same kind and degree as that of the Scheduled Castes and the Scheduled Tribes is recognised by the various provisions of the Constitution itself since they make difference between the Scheduled Castes and the Scheduled Tribes on the one hand, and other "socially and educationally backward classes" or "backward class of the citizens" on the c other. What is further, if the other backward classes are backward exactly in all respects as the Scheduled Castes and Scheduled Tribes, the President has the power to notify them as Scheduled Castes and Scheduled Tribes, and they would not continue to be the other backward classes. The nature of their backwardness, however, will have to be mainly social resulting in D their educational and economic backwardness as that of the Scheduled Castes and Scheduled Tribes.

43. The next important aspect of the question is whether caste can be used for identifying socially and educationally backward classes.

E 44. There is no doubt that no classification can validly be made only on the basis of caste just as it cannot be made only on the basis of religion, race, sex, descent, place of birth or any of them, the same being prohibited by Article 16(2). What is, however, required to be done for the purposes of Article 16(4) is not classification but identification. The identification is of the backward classes of citizens, which have, as seen above, to be socially and, therefore, educationally and economically backward [for short

.. described as socially and educationally backward]. Any factor - whether caste, race, religion, occupation, habitation etc. - which may have been responsible for the social and educational backwarJness, would naturally also supply the basis for identifying such classes not because they belong to particular religion, race, caste, occupation, area etc. but because they are socially and educationally backward classes.

45. It is, however, contended that the adoption of caste as a factor even for identifying backwardness would perpetuate casteism. The argu- H ment, with respect, begs the question. It presumes that the caste are

INDRA SAWHNEY v. U.O.l. [SAWANT, J.] 887

created the moment they are identified as backward classes for the pur- A poses of Article 16( 4). One of the most damaging and perpetuating social consequences of the caste system has admittedly been the discrimination suffered by certain castes and communities as such castes and com- munities. The result has been that these castes and communities as a whole continued to remain as backward classes. If, therefore, an affirmative action is to be taken to give them the special advantage evisaged by Article B 16(4), it must be given to them because they belong to such discriminated castes. It is not possible to redress the balance in their favour on any other basis. A different basis would perpetuate the status quo and therefore the caste system insted of eliminating it. On the other hand, by giving the discriminated caste-groups the benefits in question, discrimination would c in course of time be eliminated and along with it the casteism. It would thus be seen that the contention to the contrary is counter-productive and will in fact perpetuate, though unintentionally, the very caste system which it seeks to eliminate.

Prime Minister Nehru while replying to the very point raised in the discussion on the amendment to Article 15 by insertion of clause (4), summarised the situation in the following words:

"... But you have to distinguish between backward classes which are specially mentioned in the Constitution that have to be helped to be made to grow and not think of them in terms of this community or that. Only if you think of them in terms of the community you bring in communalism. But if you deal with backward classes as such, whatever religion or anything else they may happen to belong to, then it becomes our duty to help them towards educational, social and economic advance11 •

[Lok Sabha Debates 16.5.1951 - Column 1821]

46. 'Class' is a wider term. 'Caste' is only a species of the 'class'. The G relevant portions of the definitions of nclass11 and "caste" given in Shorter Oxford Dictinonary may be reproduced here:

"Class, ..... 6. gen. A number of individuals [persons or things] possessing common attributes, and grouped together under a general or 'class' name; H

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

A 2. Higher (Upper], Middle, Lower Classes [Mod.]."

"Caste. 1555. (ad. sp. and Pg. casta, race, lineage; orig. 'pure (stock or breed)', f. casta, fem. of casto: - L. castus [see CHASTE]. Formerly written cast. I. A race, stock, or breed

1774. 2. spec. One of the hereditary classes into which B society in India has long been dhidcd. Also transf. 1613.

The members of each caste are socially equal, have the same religious rites, and generally follow the same occupa- tion or profession; they have no social intercourse with those of another caste. The original castes were four: 1st, c the Brahmans or priestly caste; 2nd, the Kshatriyas or military caste; 3rd, the Vaisyas or merchants; 4th, the Sudras, or artisans and labourers. Now almost every variety of occupation has its caste.

D 3. fig. A class who keep themselves socially distinct, or inherit exclusive privileges 1807.

4. this system among the Hindoos; also the position it confers, as in To lose, or renounce c. 1811, Also gen. and fig." E

47. In view of the above meanings ascribed to the terms, it can hardly be argued that caste is not a class. A Caste has all the attributes of a class and can form a separate class. If, therefore, a caste is also a backward class within the meaning of Article 16(4), there is nothing in the said Article or in any other provision of the Constitution, to prevent the conferment of the special benefits under that Article on the said caste. Hence it can hardly be argued that caste in no circumstances may form the basis of or be a relevant consideration for identification of backward class of citizens.

It will be instructive in this connection to refer to the earlier decisions on the point.

48. The context in which the amendment to Article 15 was made being sufficiently illuminating on the subject, may first be noticed. In Champakam (supra], the Seven-Judge Bench of this Court struck down the classification made on the basis of caste, race and religion for the purposes of admission to educational institutions on the ground that Article 15 did

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 889

not contain a clause such as clasue (4) of Article 16. The necessary corollary of that view is that with the clause like clause (4) Article 16, the enumeration of backward classes on the basis of caste, race or religion would not be bad, and that is exactly what was held by the same Bench in a decision delivered on the same day in the case of B. Venkataramana v. ··~ The State of Madras & Anr., AIR (1951) SC 229. This was a case directly under Article 16(4) unlike Champakam which was under Article 15. In this case, the Communal G.O. of the Madras Government made reservations of posts for Harijans and backward Hindus as well as for other com- munities, viz,, Muslims, Christians, Non-Brahmin Hindus and Brahmins. The Court upheld the reservations in favour of Harijans and backward Hindus holding that those reserved posts were so reserved not on the c ground of religion, race, caste etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens. The Court, however, struck down the reservations in favour of other than Harijans and backward Hindus on the ground that it was not possible to say that those classes were backward classes. It can be seen D from this decision that the classificaiton of the backward classes into Harijans and backward Hindus was upheld by the Court as being permis- sible under Article 16( 4) since it was not a classification made on the ground of religion, race, caste etc. but because the said two groups were backward classes of citizens. E In Ba/aji it was observed as follows:

"Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. F In lhis connection, it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerated. If the classifica- tion of backward classes of citizens was based solely on the G caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the caste them- selves."

In R. Chitra/ekha & Ors. v. State of Mysore, (1964] 6 SCR 368, the H

890 SUPREME COURT REPOR1S [1992] SUPP. 2 S.C.R.

A . majority held that caste aod class are not synonymous. However, it was also held that caste can be one of the relevaot factors though not the sole aod dominant one to determine the social and eduational backwardness. The social and educational backwardness cao be ascertained with the help of factors other thao castes. The Court further held that if the entire caste is backward, it should be included in the list of Scheduled Castes. There can B be castes whose majority is socially and educationally backward but minority may be more advaoced thao another small sub-caste, the total number of which is far less thao the advaoced minority. In such cases to give benefit to the advaoced section of the majority of the socially aod educationally backward castes will be unjust to others. · c With respect, these observations leave many things unaoswered. In the first instance, it is difficult to understaod as to why, when the entire caste or for that matter the majority of the caste is socially and educationally back- ward, it could not be ca!ssified as a backward cl?ss, and why when it is done, the caste cannot become a class, as has been held in a later decision, i.e., Bairam [supra]. Secondly, if the entire caste is backward, it is not necessary to mclude it in the list of Scheduled Castes unless it is contended that the backwardness of the other backward castes must be of the same nature, degree and level in all respects as that of the Seheduled Castes. The said observations also ignore that the expression "backward class of citizens" is wider than the expression "Scheduled Castes" as the former expression includes not only the Scheduled Castes but also other backward classes which may not be as backward as the Scheduled Castes. In any case, there is no reason, why before a backward caste is included in the list of Scheduled Castes, it should not'be entitled to be accepted as a socially aod educationally backward caste. Thirdly, when a minority of a socially and educationally backward caste is advanced, the remedy lies in denying the benefit of reserva- tion to such minority and not neglect the majority.

In Minor P. Rajendran v. State of Madras & Ors., [1968] 2 SCR 786, G it is held that a caste is also a class of citizens, and if the caste as a whole is socially and educationally backward, reservation cao be made in favour of such caste on that ground. It is also held that once the State shows that a particular caste is backward, it is for those who challenge it, to disprove it. The propositions laid down in this case are directly contrary to the H propositions laid down in Chitra/ekha [supra].

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 891

In P. Sagar (supra], it is observed as follows: A 1 'In the context in which it occurs the expression "class" means a homogeneous section 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, residence in a locality, race, B religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted."

In Tri/oki Nath & Anr. v. State of Jummu & Kashmir & Ors., [1969] 1 c SCR 103, it is held:

"The expression 'backward classes' is not used as synonymous with 'backward caste' or 'backward community'. The members of an entire caste or community D may, in the social, economic and educational scale of values at a given time, be backward and may, on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class. In its ordinary connotation, the expression 'class' E means a homogeneous section of the people grouped together because of certain likenesses or common traits, and who are identifiable by soni.e common attributes such as status, rank, occupation, residence in a locality, race, religion and the like; but for the purpose of Art. 16( 4) in determining whether a section forms a class, a test solely F based on caste, community, race, religion, sex, descent, place of birth or resdence, cannot be adopted, because it ~- would directly offend the Constitution."

(emphasis supplied) G With respect, it may be added that when the members of an entire caste are backward and on that account are treated as a backward class, the expressions 11backward caste" and "backward class11 become synonymous.

In Minor A. Periakaruppan etc. v. State of Tamil Nadu & Ors. etc., H

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

A AIR 1971 SC 2303 = [ 1971] 2 SCR 430, it is observed that a caste has always been recongnised as a class. The decision refers in this connection to what is observed in Narayan Vasudev v. Emperor, AIR 1940 Bombay 379, which observations are as follows:

"In my opinion, the expression 'classes of His Majesty's B subjects' in Section 153-A of the Code is used in restrictive sense as denoting a collection of individuals or groups bearing a common and exclusive designation and also possessing common and exclusive characteristics which may be associated with their origin, race or religion, and c that the term "class' within that section carries with it the idea of numerical strength so large is could be groued in a single homogeneous community'.

The decision also quotes with approval from Paragraph 10, 11 and 13 of Chapter V of the Backward Classes Commission's Report [Kalelkar D Co1111llission Report] where it is observed:

"We tried to avoid caste but we find it difficult to ignore caste in the present prevailing conditions. We wish it were easy to dissociate caste from social backv·:irdness at the present juncture. In modern times anybody can take to any profession. The Brahman taking to tailoring, does not become a tailor by caste, nor is his social status lowered as a Brahman. A Brahman may be a seller of boots and shoes, and yet his social status is not lowered thereby. Social backwardness, therefore, is not today due to the particular profession of a person, but we cannot escape caste in considering the social backwardness in India".

"It is not wrong to assure that social backwardness has largely contributed to the educational backwardness of a large number of social groups." G "All this goes to prove that social backwardness is mainly based on racial tribal, caste and denominational differences 11 • / H The Court then observes that there is no gainsaying the fact thal.:

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 893

there are numerous castes in this country which are socially and education· A ally backward. To ignore their existence is to ignore the facts of life. However, the Court thereafter proceeds also to state that the Government should not proceed on the basis that once a caste is considered as a backward class, it should continue to be a backward class for all time. Such an approach would defeat the very purpose of the reservation because once B a class reaches a stage of progress which some modern writers call as "take-off stage", the competition is necessary for their future progress.

In Bairam, it was held that entire caste can be socially and educa- tionally backward and in such circumstances reservation can be on the basis of castes not because they are castes but castes but because they are socially and educationlly backward classes. It was also held that reservation can also be on the basis of the population of the different castes separately or social and educational backward classes. It was further. held that if candidates from social and educational backward castes secure 50 per cent or more seats of merit in the general pool, the list of backward classes need not be invalidated but the Government should be asked to review it.

In Jayasree [supra], it was observed as follows:

"In ascertaining social backwardness of a class of citizens it may.not be irrelevant to consider the caste of the group of citizens Caste cannot however be made the sole or dominant test. Social backwardness is in the ultimate analysis the result of poverty to a large extent. Social backwardness which results from poverty is likely to be aggravated by considerations of their caste. This shows the relevance of both caste and poverty in determining the backwardness of citizens. Poverty by itself is not the deter- mining factor of social backwardness. Poverty is relevant in the context of social backwardness. The Commission found that the lower income group constitutes socially and educationally backward classes. The basis of he reservation is not income but social and educational backwardness determined on the basis of relevant criteria. If any clas- sification of backward classes of citizens is based solely on the caste of the citizens it will perpetuate the vice of caste system. Again, ifthe classification is based solely on poverty H

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

A it will not be logical."

In Vasanth Kumar (supra], Chinnappa Reddy, J. stated as follows:

"Any view of the caste system, class or cursory, will at once reveal the firm links which the caste system has with B economic power. Land and learning, two of the primary sources of economic power in India, have till recently been the monopoly of the superior castes. Occupational skills were practised by the middle castes and in the economic system prevailing till now they could rank in the system next c only to the castes constituting the landed and the learned gentry. The lowest in the hierarchy were those who were assigned the meanest tasks, the out-castes who wielded no eonomic power. The position of a caste in rural society is more often than not mirrored in the economic power wielded by it and vice versa. Soci.tl hierarchy and economic position exhibit an undisputable mutuality. The lower the caste, the poorer its members. The poorer the members of · a caste lower the caste. Caste and economic situation, reflecting each other as they do are the Deus ex-Machina of the social status occupied and the economic power wielded by an individual or class in rural society. Social status and economic power are so woven and fused into the caste system in Indian rural society that one may without hesitation, say that ifpovetty be the cause, caste is the primary index of social backwardness, so that social backwardness is often readily identifiable with reference to a person's caste. Such we must recognise is the primeval force and om- nipresence of caste in Indian Society, however, much we · may like to wish it away. So sadly and oppressively deep- rooted is caste in our country that it has cut across even the barriers of religion. The caste system has penetrated other religious and dissentient Hindu sects to whom the practice of caste should be anathema and today we find that practitioner of other religious faiths and Hindu dis- sentients are sometimes as rigid adherents to the system of caste as the conservative Hindus. We find Christian H Harijans, Christian Madars, Christian Reddys, Christian

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 895

Kammas, Majbi Sikhs, etc. etc. In Andhra Pradesh there A is a community known as Pinjaras or Dudekulas (known in the North as 'Rui Pinjane Wala' : Professional cotton- beaters) who are really Muslims but are treated in rural society, for all practical purposes, as a Hindu caste. Several other instances may be given." B Venkataramiah, J. [as he then was) in the same decision observed as follows:

"An examination of the question in the background of the Indian social conditions shows that the expression 'back- ward classes' used in the Constitution referred only to those c who were born in particular castes or who belonged to particular races or tribes or religious minorities which were backward."

49. It will also be useful to note the trend of the thinking of some of the lerarned Judges of the Supreme Court 'On measures designed to redress the racial imbalance in that conntry in various fields. In Regents of the University of California, [supra], Marshall, J. expressed the view that in the light of the history of discrimination and its devastating impact on the lives of Negroes, bringing the Negoroes into the mainstream of American life should be a State interest of the highest order, and that neither the history of the Fourtecenth Amendment nor past Supreme Court decisions sup- ported the conclusion that a University could not remedy the cumulative effects of society's discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors. He also held that affirmative action programs of the type used by the University [to reserve seats for theNegoroes)should not be held to be unconstitutional.

Blackmun, J. observed that it would be impossible to arrange and affirmative action programme in a racially neutral way and have it successful.

Brennan, J. observed that the claim that the law must be "colour- G blind" is more an aspiration rather than a description of reality and that any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title VI [of the Civil Rights Act, 1%4] and its legislative history. On the contrary, he observed, that the prior decisions of the Court strongly suggested that Title H

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

A VI did not prohibit the remedial use of the race where such action is constitutionally permissible. In this connection, ir will be worthwhile to quote two passages from the learned Judge's opinion in that case. While dealing w:th equal protection clause in the Fourteenth Amendment, the learned Judge observed as follows:

B "The assertion of human equality is closely associated with the proposition that differences in colour or creed, birth or status, are neither significant nor relevant to the way in which person should be treated. Ncnetheless, the position that such factors must be "constitutionally an irrelevance" c summed up by the shorthand phrase "our Constitution is colour-blind" has never been adopted by this Court as the proper meaning of the Equal Protection Cause. Indeed, we have expressly rejected this proposition on a number of occasions. Our cases have always implied that an "overrid- ing statutory purpose" could be found that would justify D racial classifications ........ More recently....this Court unani- mously reversed the Georgia Supreme Court which had held that a desegregation plan voluntarily adopted by a local school board which assigned students on the basis of race, was per se invalid because it was not colour-blind. We E conclude, therefore, that racial classification are not per se invalid under the Fourteenth Amendment. Accordingly, we turn to the problem of articulating what our role should be in reviewing state action that expressly classifies by race."

"The conclusion that state educational institutions may constitutionally adopt admissions programs designed to avoid exclusion of historically disadvantaged minorities, even when such programs explicitly take race into account finds direct support in our cases construing congressional legislation designed to overcome the present effects of the past discrimination.''

In Fullilove (supra] where the provision in the Public Works Employ- ment Act, 1977 requiring that at least 10 per cent of the Federal funds granted for local public works projects, should be used by the State or the local granteee to procure services or supplies from businesses owned by

INDRA SAWHNEY v. U.O.l. [SAWANT, J.] 897

minority group members, was challenged, Chief Justice Burger, speaking for himself, White and Powel, JJ. upheld the view expressed in the earlier decisions that if the race was the consideration for earlier di"crimination in remedial process, steps will almost invariably require to· be based on racial factors and any other approach would freeze the status quo which is the very tatget of all remedies to correct the imbalance introduced by the past racial discriminatory measures .. lsl. B

[All emphasis supplied]

50. It is further not correct to say that the caste system is prevalent only among the Hindus, and other religions are free from it. Jains have never considered themselves as apart from Hindus. For all practical pur- poses and from all counts, there are no socially and educationally backward classes in the Jain community for those who embraced it mostly belonged to the higher castes. As regards Buddhists, if we exclude those who embraced Buddhism along with Dr. Ambedkar in 1955, the population of Buddhists is negligible. If, however, we include the new converts who have come to be known as Nav-Buddhists, admittedly almost all of them are from the Scheduled Castes. In fact, in some States, they were sought to be excluded from the list of Scheduled Castes and denied the benefit of reservations on the ground that they had no longer remained the lower castes among the Hindus qualifying to be included among the Scheduled Castes. On account of their agitation, this perverse reasoning was set right and today the Nav-Buddhists continue to get the benefit of reservation on the ground that their low status in society as the backward classes did not change with the change of their religion. As regards Sikhs, there is no doubt that the Sikh religion docs not recognise caste system. It was in fact a revolt against it. However, the existence of Mazriabis, Kabirpanthis, Ramdasias, Baurias, Sareras and Sikligars and the demand of the leaders of the Sikhs themselves to treat them as Scheduled Castes could not be ignored and from the beginning they have been notified as a Scheduled Caste [See: pp 768-772 of Vol. I and p. 594 of Vol. IV of the Framing ofTndia's Constitu- G tion - Ed. B. Shiva Rao]. As far as Islam is concerned, hlarn also does not recognise castes or caste system. However, among the Muslims, in fact there are Ashrafs and Ajlafs, i.e., high born and low born. The Census Report of 1901 of the Province of Bengal records the following facts regarding the Muslims of the then Province of Bengal: H

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

A ''the conventional division of the Mahomedans into four tribes - Sheikh, Saiad, Moghul and Pathan - has very little application to this province (Bengal]. The Mahomedans themselves recognise two main social divisions, (1) Ashraf or Sharaf and (2) Ajlaf. Ashraf means 'noble' and includes all undoubted descendants of foreigners and converts from B high caste Hindus. All other Mahomedans including the occupational groups and all coverts of lower ranks, are known by the contemptuous terms, 'Ajlaf, 'Wretches' or 'mean people' : they are also called Kamina or !tar, 'base' or Rasil, a corruption of Rizal, 'worthless'. In some places c a third class, called Arzal or 'lowest of all', is added. With them no other Mahomedan would associate and they are forbidden to enter the mosque to use the public burian ground.

Within these groups there [sic.) castes with social D precedence of exactly the same nature as one finds among the Hindus.

1. Ashrat or better class Mahomedans.

(i) Saiads, (ii) Sheikhs, (iii) Patbans, (iv) Moghul, (v) Mal- E lik, (vi) Mirza.

2. Ajlaf or lower class Mahomedans.

(i) Cultivating Sheikhs, and other who were oringinally Hindus but who do not belong to any functional group, and F have not gained admittance to the Ashrat Community e.g. Pirali and Thakrai, (ii) Darzi, Jolaha, Fakir and Rangrez, (iii) Barbi, Bhathiara, Chik, Churihar, Dai, Dhawa, Dhunia, Gaddi, Kala, Kasai, Kula, Kunjara, Laheri, Mahifarosh, Mallah, Naliya, Nikari, (iv) Adbad, Bako G Bediya, Bhat, Chamba, Dafali, Dhobi, Hajjam, Mucho, Nagarchi, Nat, Panwaria, Madaria, Tuntia.

3. Arzal or degraded class. Bhanar, Halalkhor, Hirja, Kashi, Lalbegi, Mangta, Mehtar.

H The Census Superintendent mentions another feature of·

INDRA SAWHNEY v. U.0.1. [SAWANT, l.J 899

the Muslim social system, namely, the prevalence of the A 'Panchayat system.' He states :

"The authority of the Panchayat extends to social as well as trade matters and . . . mariage with people of other communities is one of the offences of which the governing body takes cognizance. The result is that these groups arc B often as strictly endogamous as Hindu castes. The prohibi- tion on inter- marriage extends to higher as well as to lower castes, and a Dhuma, for example, may marry no one but a Dhuma. If this rule is transgressed, the offender is at once hauled up before the panchayat and ejected ignominiously from his community. A member of one such group cannot c ordinarily g&in admission to another, and he retains the designation of the community in which he \Vas born even if he abandons its distinctive occupation and takes to other means of livelihood .... thousands of Jolahas are butchers, yet there are still known as Jolahas ." D

[See: pp. 218-220 of Pakistan or Partition of India by Dr. B.R. Ambedkar.]

Similar facts regarding the then other Prminces could be gathered from their respective Census Reports. At present there are many social E groups among Muslims which are included in the list of Scheduled Castes in some States. For example, in Tamil Nadu, Labbais including Rawthars and Marakayars are in the list of Scheduled Castes. This shows that the Muslims in India have not remained immune from the same social evils as are prevalent among the Hindus. F Though Christianity also does not recognise caste system, there are upper and lower castes among Christians. In Goa, for example, there are upper caste Catholic brahmins who do not marry christians belonging to the lower castes. In many churches, the low caste christians have to sit apart from the high caste christians. There are constant bickerings between G Goankars and Gawdes who form a clear cut division in Goan Christian society. In Andhra Pradesh there are Christian Harijans, Christian Madars, Christians Reddys, Christians Kammas etc. In Tamil Nadu, converts to Christianity from Scheduled Castes - Latin Catholics, Christians Shanars, Christian Nadars and Christian Gramani are in the list of Scheduled H

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