Kumar Thakur Vs. Union of
India and Ors
 INSC 616 (10 April 2008)
Dr. ARIJIT PASAYAT & C.K. THAKKER
WRIT PETITION (CIVIL) NO. 265 OF 2006 (With WP (C) Nos. 269/2006, 598/2006,
29/2007, 35/2007, 53/2007 Contempt Petition (C)No.112/2007 in WP ) No.265/2006,
336/2007, 313/2007, 335/2007, 231/2007, 425/2007 and 428/2007) Dr. ARIJIT
1. The issues involved in the present writ petitions have far reaching
consequences and in essence pose several questions of seminal importance. In
essence, they raise questions which have no easy answers. The complexity can be
gauged from the fact that on one hand the petitioners have questioned the logic
of providing reservations/quotas for a class of people whom they described as
"unidentifiable" or "undetermined" while the respondents
justify their action by labelling them as measures taken for upliftment of vast
majority of people who have suffered social humiliation and sneer for the
social backwardness. Complex questions like whether the expressions 'class' and
'castes' are synonyms, whether reservations provide the only solution for
social empowerment measures, alleged lack of concern for the economically
weaker group of citizens are some of the basic issues which need to be
addressed. It has been emphatically highlighted by the petitioners that when
the ultimate objective is classless and casteless in Indian democracy, there is
no question of unendingly providing the reservation and that too without any
definite data regarding backwardness. In essence, they contend that these
measures perpetuate backwardness and do not remove them. On the epicenter of
challenge is the Central Educational Institutions (Reservation in Admission)
Act 2006 (in short the 'Act') and the 93rd Amendment to the Constitution of India,
1950 (in short the 'Constitution'). Interestingly, both the petitioners and the
respondents rely strongly on certain observations made by this Court in Indra
Sawhney v. Union of India 1992 (Suppl. 3) SCC 217 (commonly known as 'Indra
2. When the writ petitions were placed before a Bench of two Judges,
considering the importance of the matter they were referred to be heard by a
larger bench and certain questions which arise for consideration were
formulated. That is how these cases are before this Bench.
3. Arguments have been advanced by both the sides as to whether Constitution
contemplates casteless society. While the respondents submit that the
Constitution really does not think of a casteless society, it prohibits
untouchability in the background of Article 17. It has to be noted that both in
Articles 15 and 16 the stress is on non-discrimination on the ground of castes.
The Preamble of the Constitution also throws light on this aspect. Ultimately
if the social status of a man goes in the higher direction because of his
education, the difference in status gets obliterated. Education is a great
levellor. In that sense, the ultimate object is that every Indian citizen
should have the social status which is not inferior to another and that would
be obliteration of the difference in status. The ultimate objective is to see
that no person gets discriminated because of his caste. If that be so, it would
not be right to say that the ultimate objective is not the casteless society.
4. Various Articles of the Constitution of India and the Preamble provide an
insight to the monumental document i.e.
the Constitution of India. Article 14 guarantees equality before the law in
addition to equal protection of law. Article 15(1) mandates that there shall
not be any discrimination against any citizen on the grounds of religion,
caste, sex, race, or place of birth. Article 16(1) makes the fundamental right
of equality specific relating to job opportunities. Article 16(2) significantly
speaks of government employment by providing that no citizen shall be
ineligible only on the grounds of religion, race, caste, sex, descent, place of
birth or any of them or discriminated against in respect of any employment or
office under the State.
Article 16(4) is an important provision which empowers the State permitting
the provision for the reservation of appointments and posts in favour of any
backward class of citizens which in the opinion of the State is not adequately
represented in the services of the State. The stress is on backwardness of the
citizens and inadequate representation in the services under the State.
5. If one takes a walk on the pathway relating to the views expressed by
this Court in the matter of reservation or quotas for the other backward
classes one comes across many milestones. Some of them were noted extensively
in Indra Sawhney No.1. They are: The State of Madras v. Sm.
Champakam Dorairajan & Anr. (AIR 1951 SC 226), Minor A Peeriakaruppan v.
Sobha Joseph (1971 (1) SCC 38), The State of Andhra Pradesh and Ors. v. U.S.V.
Balram, etc. (1972 (1) SCC 660), Shri Janki Prasad Parimoo and Ors. v. State of
Jammu and Kashmir and Ors. (1973(1) SCC 420), State of Uttar Pradesh and Ors.
v. Pradip Tandon and Ors. (1975 (1) SCC 267), State of Kerala and Anr. v. N.M.
Thomas and Ors.
(1976(2) SCC 310), Kumari K.S. Jayashree and Anr. v. The State of Kerala and
Anr. (1976 (3) SCC 730), K.C. Vasanth Kumar and Anr. v. State of Karnataka
(1985 (Supp) SCC 714) and Indra Sawhney v. Union of India and Ors. (2000 (1)
SCC 168) (known as Indra Sawhney No.2).
6. Two recent decisions have also been highlighted by the parties. They are
M. Nagaraj and Ors. v. Union of India and Ors. (2006 (8) SCC 212) and Nair
Service Society v. State of Kerala (2007 (4) SCC 1). It is to be noted that
some of the arguments which have been raised relate to broad principles of law
and the jurisprudential approach. They are the applicability of the foreign
decisions, more particularly, the decisions of the American Courts. They relate
to the principles of strict scrutiny and narrow tailoring.
7. Learned counsel for the petitioners have stressed on these decisions to
show as to what should be the approach in matters relating to social
empowerment. Learned counsel for the respondents have however submitted that
the approach is to be different because the problems before the American Courts
essentially related to individual rights while the Indian Courts are more
concerned with group rights i.e. rights of class of citizens. We shall deal
with this in some length later.
8. The other issue which was hotly contested related to the exclusion of the
9. One of the major challenges raised by the petitioners is based on the
allegation that there is no acceptable data for fixing the percentage of other
backward classes. This has been highlighted to show that there is no rational
basis for fixing the percentage of reservation at 27% for the other backward
classes. It is pointed out that the figures appear to have been culled out from
some survey done more than seven decades back i.e. 1931 to be precise.
Thereafter, there seems to be no definite data to know the actual percentage.
It is pointed out that in Indra Sawhney No.1 (supra) this Court had laid
considerable stress on having a Commission to identify and determine the
criteria for determining the socially and educationally backward classes. Very
little appears to have been done. It is surprising, it was contended, that
there has been not even a single case of exclusion but on the other hand more than
250 new castes/sub-castes have been added. This shows that there is really no
serious attempt to identify the other backward classes. On the other hand,
there has been over-jealous anxiety to include more number of people so that
they can get the benefits of reservations/quotas and this has been termed as
"vote bank politics". It is highlighted that even when a serious
matter relating to adoption of the Act was under consideration there was hardly
any discussion and every political party was exhibiting its anxiety to get the
Statute passed. Crocodile tears were shed to show lip sympathy for the
backwardness of the people. In reality, the object was to give a wrong
impression to the people that they were concerned about the backwardness of the
people and they were the 'Messiahs' of the poor and the down trodden. In
reality, in their hearts the ultimate object was to grab more votes. The lack
of seriousness of the debate exhibits that the debate was nothing but a
red-herring to divert attention from the sinister, politically motivated design
masked by the "tearful" faces of the people masquerading as champions
of the poor and down trodden. It is pointed out that contrary to what was being
projected by the parties when the discussions were going on, in an impassioned
speech by late Rajeev Gandhi who was the leader of opposition at an earlier
point of time, the fallacies in adopting the Mandal Report were highlighted. It
is surprising, it is submitted, that those very people who were the champions
of anti-reservation and anti- quota as members of opposition, have done
summersault and were saying just the opposite. It is pointed out that when one
member Shri P.C. Alexandar exhibited real courage and highlighted the fallacies
in the stand taken, his view appears to have been lightly brushed aside and the
Statute hustled through. It is also submitted that the objectivity and sanctity
of the report submitted in the Parliament commonly known as "Oversight
Committee Report" has been lightly brushed aside.
This only indicates that there was no serious debate about the consequences.
The foresight of late Rajiv Gandhi in saying that the country will be divided
on caste basis and that would lead to disaster has been prophetically proved to
be correct and it is a reality. It is submitted that the enactment has created
a sharp divide amongst the citizens of the country and it has not even an iota
of good results flowing from it. On the contrary, the country will be divided
sharply leading to social unrest and caste-wars. It is pointed out that in the
recent past such caste wars have resulted in large scale loss of life and
destruction of public properties.
10. The relevance of the parliamentary debate or the speech of the Minister
has been highlighted by this Court in many cases. It is a settled position in
law that there can be only limited use of the parliamentary debate. The Courts
should not normally critically analyse the proceedings of Parliament.
This flows from a very fundamental aspect i.e. mutual respect of the
Parliament and the Judiciary for each other. Each of these great institutions
in a democracy operates in different fields. It is not expected that one wing
of democracy would criticize the manner of functioning of another wing. That
would be against the basic desirability of mutual respect. Any opinion or
comment or criticism about the manner of functioning of one by the other would
be not only undesirable but imperatively avoidable. The citizens of this
country expect a great deal from the Parliament and the Judiciary. It is but
natural that the people of this country would be disappointed and dis-heartened
and their hopes will be shattered if instead of showing respect for each other,
there is mudslinging, unwanted criticism or impermissible criticism about the manner
of functioning or the rationale of a decision or a view taken. In this context,
it would be relevant to take note of what this Court said in Builders
Association of India v. Union of India and Ors. (1995 Supp (1) SCC 41), and K.
Nagaraj and Ors. v. State of Andhra Pradesh and Anr. (1985 (1) SCC 523).
In State of Mysore v. R.V. Bidap (1974 (3) SCC 337), it was observed as
"5. Anglo-American jurisprudence, unlike other systems, has generally
frowned upon the use of parliamentary debates and press discussions as throwing
light upon the meaning of statutory provisions. Willes, J. in Miller v. Tayler,
 4 Burri, 2303, 2332., stated that the sense and meaning of an Act of
Parliament must be collected from what it says when passed into law, and not
from the history of changes it underwent in the House where it took its rise.
That history is not known to the other House or to the Sovereign. In Assam
Railways and Trading Company Ltd. v. I.R.C.,  A.C. 445 at p. 458, Lord
Writ in the Privy Council said :
"It is clear that the language of a Minister of the Crown in proposing
in Parliament a measure which eventually becomes law is inadmissible and the
report of commissioners is even more removed from value as evidence of
intention, because it does not follow that their recommendations were
The rule of grammatical construction has been accepted in India before and
after Independence. In the State of Travancore- Cochin and Ors. v. Bombay
Company Ltd., Alleppey, (AIR 1952 S.C. 366), Chief Justice Patanjali Sastri
delivering the judgment of the Court, said :- "It remains only to point
out that the use made by the learned Judges below of the speeches made by the
members of the Constituent Assembly in the course of the debates on the draft
Constitution is unwarranted. That this form of extrinsic aid to the
interpretation of statutes is not admissible has been generally accepted in
England, and the same rule has been observed in the construction of Indian
statutes- see Administrator-General of Bengal v. Prem Lal Mullick, 22 Ind.
107 (P.C.) at p. 118. The reason behind the rule was explained by one of us
in Gopalan v. State of Madras, (1950) S.C.R. 88 thus :
A speech made in the course of the debate on a bill could at best be
indicative of the subjective intent of the speaker, but it could not reflect
the inarticulate mental process lying behind the majority vote which carried
the bill. Nor is it reasonable to assume that the minds of all those
legislators were in accord".
Or, as it is more tersely put in an American case- "Those who did not
speak may not have agreed with those who did; and those who spoke might differ
from each other- United States v. Trans-Missouri Freight Association, (1897)
169 U.S. 290 at p.
This rule of exclusion has not always been adhered to in America, and
sometimes distinction is made between using such material to ascertain the
purpose of a statute and using it for ascertaining its meaning. It would seem
that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th
Edn. p. 122 (pp. 368-9)".
11. In the American jurisdiction, a more natural note has sometimes been
struck. Mr. Justice Frankfurter was of the view that- "If the purpose of
construction is the ascertainment of meaning, nothing that is logically
relevant should be excluded, and yet, the Rule of Exclusion, which is generally
followed in England, insists that, in interpreting statutes, the proceedings in
the Legislatures, including speeches delivered when the statute was discussed
and adopted, cannot be cited in courts."
12. Crawford on Statutory Construction at page 388 notes that- "The
judicial opinion on this point is certainly not quite uniform and there are
American decisions to the effect that the general history of a statute and the
various steps leading up to an enactment including amendments or modifications
of the original bill and reports of Legislative Committees can be looked at for
ascertaining the intention of the legislature where it is in doubt; but they
hold definitely that the legislative history is inadmissible when there is no
obscurity in the meaning of the statute."
The Rule of Exclusion has been criticised by jurists as artificial. The
trend of academic opinion and the practice in the European system suggest that
interpretation of a statute being an exercise in the ascertainment of meaning,
everything which is logically relevant should be admissible. Recently, an
eminent Indian jurist has reviewed the legal position and expressed his
agreement with Julius Stone and Justice Frankfurter. Of course, nobody suggests
that such extrinsic materials should be decisive but they must be admissible.
Authorship and interpretation must mutually illumine and interact. There is
authority for the proposition that resort may be had to these sources with
great caution and only when incongruities and ambiguities are to be resolved.
A.K. Gopalan v. State of Madras (1950 SCR 88). There is a strong case for
whittling down the Rule of Exclusion followed in the British courts and for
less apologetic reference to legislative proceedings and like materials to read
the meaning of the words of a statute. Where it is plain, the language
prevails, but where there is obscurity or lack of harmony with other provisions
and in other special circumstances, it may be legitimate to take external
assistance such as the object of the provisions, the mischief sought to be
remedied, the social context, the words of the authors and other allied
matters. The law of statutory construction is a strategic branch of jurisprudence
which must, it may be felt, respond to the great social changes but a
conclusive pronouncement on the particular point arising here need not detain
us because nothing decisive as between the alternative interpretations flows
from a reliance on the Constituent Assembly proceedings or the broad purposes
of the statutory scheme.
13. One thing however needs to be noted here that mere short length of
debate cannot and does not become a ground for invalidity of the decision and
the reverse is also not true.
14. Elaborate arguments have been advanced about the applicability of the
foreign decisions, more particularly, the American Courts. It is to be noted
that the American cases which have been highlighted by the petitioners relate
essentially to strict classification, strict scrutiny and narrow tailoring.
This issue is of considerable importance when so much debate is taking place
about respect being shown by courts of a country to a decision of another
country. The factual scenario and the basic issues involved in the cases
sometimes throw light on the controversy. It has been rightly contended by Mr.
Vahanvati and Mr. Gopal Subramanium that there is a conceptual difference
between the cases decided by the American Supreme Court and the cases at hand.
In Saurabh Chaudri and Ors. v. Union of India and Ors. (2003 (11) SCC 146) it
was held that the logic of strict classification and strict scrutiny does not
have much relevance in the cases of the nature at hand. If one looks at the
different Statutes in India, Article 14 of the Constitution is conceptually
different from 14th Amendment to the American Constitution as was noted in
State of West Bengal vs. Anwar Ali Sarkar (1952 SCR 284) and State of Bombay
and Anr. v. F.N. Balsara (1952 SCR 682). In Anwar Ali's case (supra) at pages
363 and 364 it was noted as follows:
"I find it impossible to read these portions of the Constitution
without regard to the background out of which they arose. I cannot blot out
their history and omit from consideration the brooding spirit of the times.
They are not just dull, lifeless words static and hide- bound as in some
mummified manuscript, but, living flames intended to give life to a great
nation and order its being, tongues of dynamic fire, potent to mould the future
as well as guide the present. The Constitution must, in my judgment, be left
elastic enough to meet from time to time the altering conditions of a changing
world with its shifting emphasis and differing needs. I feel therefore that in
each case judges must look straight into the heart of things and regard the
facts of each case concretely much as a jury would do; and yet, not quite as a
jury, for we are considering here a matter of law and not just one of fact; Do
these "laws" which have been called in question offend a still
greater law before which even they must bow?
99. Doing that, what is the history of these provisions? They arose out of
the fight for freedom in this land and are but the endeavour to compress into a
few pregnant phrases some of the main attributes of a sovereign democratic
republic as seen through Indian eyes. There was present to the collective mind
of the Constituent Assembly, reflecting the mood of the peoples of India, the
memory of grim trials by hastily constituted tribunals with novel forms of
procedure set forth in Ordinances promulgated in haste because of what was then
felt to be the urgent necessities of the moment. Without casting the slightest
reflection of the judges and the Courts so constituted, the fact remains that
when these tribunals were declared invalid and the same persons were retired in
the ordinary Courts, many were acquitted, many who had been sentenced to death
were absolved. That was not the fault of the judges but of the imperfect tools
with which they were compelled to work.
The whole proceedings were repugnant to the peoples of this land, and to my
mind, article 14 is but a reflex of this mood.
100. What I am concerned to see is not whether there is absolute equality in
any academical sense of the term but whether the collective conscience of a
sovereign democratic republic can regard the impugned law, contrasted with the
ordinary law of the land, as the sort of substantially equal treatment which
men of resolute minds and unbiased views can regard as right and proper in a
democracy of the kind we have proclaimed ourselves to be. Such views must take
into consideration the practical necessities of government, the right to alter
the laws and many other facts, but in the forefront must remain the freedom of
the individual from unjust and unequal treatment, unequal in the broad sense in
which a democracy would view it. In my opinion, 'law' as used in Article 14
does not mean the "legal precepts which are actually recognised and
applied in tribunals of a given time and place" but "the more general
body of doctrine and tradition from which those precepts are chiefly drawn, and
by which we criticise, them."
15. It needs no emphasis that the formal equality concept came to be
recognized in U.S.A. after about 10 years of its inception. In the first phase
of the U.S.A. Constitutional Law there was only affirmative action but in the
Indian Constitution right from the beginning affirmative action has been
provided, for example, provisions made for Scheduled Castes and Schedules
Tribes. A distinction has been noted in para 640 of Indra Sawhney No.1.
Articles 38(1) and 38(2) read with Article 46 of the Constitution make the
position clear that the State is charged with the duty to secure interests of
the weaker sections of the people and minimize the inequalities in income. The
Constitution from its inception contained Article 17 which abolishes
16. In this context the following paras need to be noted.
17. In Minerva Mills Ltd. and Ors. v. Union of India and Ors.
(1980) 3 SCC 625) in para 63 it was held as follows:
"63. The learned Attorney General argues that the State is under an
obligation to take steps for promoting the welfare of the people by bringing
about a social order in which social, economic and political justice shall
inform all the institutions of the national life. He says that the deprivation
of some of the fundamental rights for the purpose of achieving this goal cannot
possibly amount to a destruction of the basic structure of the Constitution. We
are unable to accept this contention. The principles enunciated in Part IV are
not the proclaimed monopoly of democracies alone. They are common to all
polities, democratic or authoritarian. Every State is goal-oriented and claims
to strive for securing the welfare of its people. The distinction between the
different forms of Government consists in that a real democracy will endeavour
to achieve its objectives through the discipline of fundamental freedoms like
those conferred by Articles14 and 19. Those are the most elementary freedoms
without which a free democracy is impossible and which must therefore be
preserved at all costs.
Besides, as observed by Brandies, J., the need to protect liberty is the
greatest when Government's purposes are beneficent. If the discipline of
Article 14 is withdrawn and if immunity from the operation of that article is
conferred, not only on laws passed by the Parliament but on laws passed by the
State Legislatures also, the political pressures exercised by numerically large
groups can tear the country asunder by leaving it to the legislature to pick
and choose favoured areas and favourite classes for preferential
18. In His Holiness Kesavananda Bharati Sripadagalvaru v.
State of Kerala and Anr. (1973 (4) SCC 225) it was held as under:
"531. According to Mr. Palkhivala, the test of the true width of a
power is not how probable it is that it may be exercised but what can possibly
be done under it; that the abuse or misuse of power is entirely irrelevant;
that the question of the extent of the power cannot be mixed up with the
question of its exercise and that when the real question is as to the width of
the power, expectation that it will never be used is as wholly irrelevant as an
imminent danger of its use. The court does not decide what is the best and what
is the worst. It merely decides what can possibly be done under a power if the
words conferring it are so construed as to have an unbounded and limitless
width, as claimed on behalf of the respondents.
532. It is difficult to accede to the submission on behalf of the
respondents that while considering the consequences with reference to the width
of an amending power contained in a Constitution any question of its abuse is
involved. It is not for the courts to enter into the wisdom or policy of a
particular provision in a Constitution or a statute. That is for the
Constitution makers or for the parliament or the legislature. But that the real
consequences can be taken into account while judging the width of the power is
well settled. The Court cannot ignore the consequences to which a particular
construction can lead while ascertaining the limits of the provisions granting
the power. According to the learned Attorney General, the declaration in the
preamble to our Constitution about the resolve of the people of India to
constitute it into a Sovereign, Democratic Republic is only a declaration of an
intention which was made in 1947 and it is open to the amending body now under
Article 368 to change the Sovereign Democratics Republic into some other kind
of polity. This by itself shows the consequence of accepting the construction
sought to be put on the material words in that article for finding out the
ambit and width of the power conferred by it."
19. In Sajan Singh v. Maharashtra Sugar Mills Ltd. (AIR 1965 SC 845) it was
held as follows:
"6. It is obvious that the fundamental rights enshrined in Part III are
not included in the proviso, and so, if Parliament intends to amend any of the
provisions contained in Articles 12 to 35 which are included in Part III, it is
not necessary to take recourse to the proviso and to satisfy the additional
requirements prescribed by it. Thus far, there is no difficulty. But in
considering the scope of Art. 368, it is necessary to remember that Art.
226, which is included in Chapter V of Part VI of the Constitution, is one
of the constitutional provisions which fall under clause (b) of the proviso;
and so, it is clear that if Parliament intends to amend the provisions of Art.
226, the bill proposing to make such an amendment must satisfy the requirements
of the proviso. The question which calls for our decision is : what would be
the requirement about making an amendment in a constitutional provision
contained in Part III, if as a result of the said amendment, the powers
conferred on the High Courts under Art. 226 are likely to be affected? The
petitioners contend that since it appears that the powers prescribed by Art.
226 are likely to be affected by the intended amendment of the provisions
contained in Part III, the bill introduced for the purpose of making such an
amendment, must attract the proviso, and as the impugned Act has admittedly not
gone through the procedure prescribed by the proviso, it is invalid; and that
raises the question about the construction of the provisions contained in Art.
368 and the relation between the substantive part of Art.
368 with its proviso.
8. On the other hand, if the substantive part of Art. 368 is very liberally
and generously construed and it is held that even substantial modification of
the fundamental rights which may make a very serious and substantial inroad on
the powers of the High Courts under Art. 226 can be made without invoking the
proviso, it may deprive clause (b) of the proviso of its substance. In other
words, in construing both the parts of Art. 368, the rule of harmonious
construction requires that if the direct effect of the amendment of fundamental
rights is to make a substantial inroad on the High Courts' powers under Art.
226, it would become necessary to consider whether the proviso would cover
such a case or not. If the effect of the amendment made in the fundamental
rights on the powers of the High Courts prescribed by Art. 226, is indirect,
incidental, or is otherwise of an insignificant order, it may be that the
proviso will not apply.
The proviso would apply where the amendment in question seeks to make any
change, inter alia, in Art. 226, and the question in such a case would be :
does the amendment seek to make a change in the provisions of Art. 226? The
answer to this question would depend upon the effect of the amendment made in
the fundamental rights.
9. In dealing with constitutional questions of this character, courts
generally adopt a test which is described as the pith and substance test. In
Attorney-General for Ontario v.
Reciprocal Insurers ( A.C. 328), the Privy Council was called upon to
consider the validity of the Reciprocal Insurance Act, 1922 (12 & 13 Geo.
5, Ont., c. 62) and s. 508c which had been added to the Criminal Code of Canada
by ss. 7 & 8 Geo. 5, c. 29 Dom. Mr.
Justice Duff, who spoke for the Privy Council, observed that in an enquiry
like the one with which the Privy Council was concerned in that case, "it
has been formally laid down in judgments of this Board, that in such an inquiry
the Courts must ascertain the 'true nature and character' of the enactment :
Citizens' Insurance Co. of Canada v. Parsons ( 7 AC 96); its 'pith and
Union Colliery Co. of British Columbia Ltd. v.
Bryden ( A.C. 580); and it is the result of this investigation, not
the form alone, which the statute may have assumed under the hand of the
draughtsman, that will determine within which of the categories of subject
matters mentioned in ss. 91 and 92 the legislation falls; and for this purpose
the legislation must be 'scrutinised in its entirety' : "Great West
Saddlery Co. v. The King" ( 2 A.C.
91,117). It is not necessary to multiply authorities in support of the
proposition that in considering the constitutional validity of the impugned
Act, it would be relevant to inquire what the pith and substance of the
impugned Act is. This legal position can be taken to be established by the
decisions of this Court which have consistently adopted the view expressed by
Justice Duff, to which we have just referred.
14. Thus, it would be seen that the genesis of the amendments made by
Parliament in 1951 by adding Articles 31A and 31B to the Constitution, clearly
is to assist the State Legislatures in this country to give effect to the
economic policy in which the party in power passionately believes to bring
about much needed agrarian reform. It is with the same object that the second
amendment was made by Parliament in 1955, and as we have just indicated, the
object underlying the amendment made by the impugned Act is also the same.
Parliament desires that agrarian reform in a broad and comprehensive sense must
be introduced in the interests of a very large section of Indian citizens who
live in villages and whose financial prospects are integrally connected with
the pursuit of progressive agrarian policy. Thus, if the pith and substance
test is applied to the amendment made by the impugned Act, it would be clear
that Parliament is seeking to amend fundamental rights solely with the object
of removing any possible obstacle in the fulfilment of the socio-economic
policy in which the party in power believes. If that be so, the effect of the
amendment on the area over which the High Courts' powers prescribed by Art. 226
operate, is incidental and in the present case can be described as of an
insignificant order. The impugned Act does not purport to change the provisions
of Art. 226 and it cannot be said even to have that effect directly or in any
appreciable measure. That is why we think that the argument that the impugned
Act falls under the proviso, cannot be sustained. It is an Act the object of
which is to amend the relevant Articles in Part III which confer fundamental
rights on citizens and as such it falls under the substantive part of Art.
368 and does not attract the provisions of clause (b) of the proviso. If the
effect of the amendment made in the fundamental rights on Art. 226 is direct
and not incidental and is of a very significant order, different considerations
may perhaps arise. But in the present case, there is no occasion to entertain
or weigh the said considerations. Therefore the main contention raised by the
petitioners and the interveners against the validity of the impugned Act must
20. In Kihoto Hollohan v. Zachillhu and Ors. (1992 Supp. (2) SCC 651) it was
observed as follows:
"61. The propositions that fell for consideration in Sankari Prasad
Singh's and Sajjan Singh's cases are indeed different. There the jurisdiction
and power of the Courts under Articles 136 and 226 were not sought to be taken
away nor was there any change brought about in those provisions either "in
terms or in effect", since the very rights which could be adjudicated
under and enforced by the Courts were themselves taken away by the
Constitution. The result was that there was no area for the jurisdiction of the
Courts to operate upon. Matters are entirely different in the context of
paragraph 7. Indeed the aforesaid cases, by necessary implication support the
point urged for the petitioners. The changes in Chapter IV of Part V and
Chapter V of Part VI envisaged by the proviso need not be direct. The change
could be either "in terms of or in effect". It is not necessary to
change the language of Articles 136 and 226 of the Constitution to attract the
proviso. If in effect these Articles are rendered ineffective and made
inapplicable where these articles could otherwise have been invoked or would,
but for Paragraph 7, have operated there is `in effect' a change in those
provisions attracting the proviso. Indeed this position was recognised in
Sajjan Singh's case (supra) where it was observed:
"If the effect of the amendment made in the fundamental rights on
Article 226 is direct and not incidental and is of a very significant order,
different considerations may perhaps arise."
62. In the present cases, though the amendment does not bring in any change
directly in the language of Article 136, 226 and 227 of the Constitution,
however, in effect paragraph 7 curtails the operation of those Articles
respecting matters falling under the Tenth Schedule. There is a change in the
effect in Article 136, 226 and 227 within the meaning of clause (b) of the
proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification
was necessary. Accordingly, on Point B, we hold:
"That having regard to the background and evolution of the principles
underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks
to introduce the Tenth Schedule in the Constitution of India, the provisions of
Paragraph 7 of the Tenth Schedule of the constitution in terms and in effect
bring about a change in the operation and effect to Articles 136, 226 and 227
of the Constitution of India and, therefore, the amendment would require to be
ratified in accordance with the proviso to sub-Article (2) of Article 368 of
the Constitution of India."
21. In Shri Sarwan Singh and Anr. v. Shri Kasturi Lal (1977 (1) SCC 750) it
was observed as follows:
"20. Speaking generally, the object and purpose of a legislation assume
greater relevance if the language of the law is obscure and ambiguous. But, it
must be stated that we have referred to the object of the provisions newly
introduced into the Delhi Rent Act in 1975 not for seeking light from it for
resolving in ambiguity, for there is none, but for a different purpose
altogether. When two or more laws operate in the same field and each contains a
non obstante clause stating that its provisions will override those of any
other law, stimulating and incisive problems of interpretation arise. Since
statutory interpretation has no conventional protocol, cases of such conflict
have to be decided in reference to the object and purpose of the laws under
consideration. A piquant situation, like the one before us, arose in Shri Ram
Simla Banking & Industrial Co. Ltd. competing statutes being the Banking
Companies Act, 1949 as amended by Act 52 of 1953, and the Displaced Persons
(Debts Adjustment) Act, 1951. Section
45A of the Banking Companies Act, which was introduced by the amending Act of
1953, and Section 3 of the Displaced Persons Act 1951 contained such a non
obstante clause, providing that certain provisions would have effect
"notwithstanding anything inconsistent therewith contained in any other
law for the time being in force". This Court resolved the conflict by
considering the object and purpose of the two laws and giving precedence to the
Banking Companies Act by observing : "It is, therefore, desirable to
determine the overriding effect of one or the other of the relevant provisions
in these two Acts, in a given case, on much broader considerations of the
purpose and policy underlying the two Acts and the clear intendment conveyed by
the language of the relevant provisions therein." (p. 615) As indicated by
us, the special and specific purpose which motivated the enactment of Section
14A and Chapter IIIA of the Delhi Rent Act would be wholly frustrated if the
provisions of the Slum Clearance Act requiring permission of the competent
authority were to prevail over them. Therefore, the newly introduced provisions
of the Delhi Rent Act must hold the field and be given full effect despite
anything to the contrary contained in the Slum Clearance Act.
21. For resolving such inter se conflicts, one other test may also be
applied though the persuasive force of such a test is but one of the factors
which combine to give a, fair meaning to the language of the law. That test is
that the later enactment must prevail over the earlier one. Section 14A and
Chapter IIIA having been enacted with effect from December 1, 1975 are later
enactments in reference to Section 19 of the Slum Clearance Act which, in Its
present form, was placed on the statute book with effect from February 28, 1965
and in reference to Section 39 of the same Act, which came into force in 1956
when the Act itself was passed.
The legislature gave overriding effect to Section 14A and Chapter IIIA with
the knowledge that Sections 19 and 39 of the Slum Clearance Act contained non
obstante clauses of equal efficacy. Therefore the later enactment must prevail
over the former. The same test was mentioned with approval by this Court in
Shri Ram Narain's case at page 615.
23. The argument of implied repeal has also no substance in it because our
reason for according priority to the provisions of the Delhi Rent Act is not
that the Slum Clearance Act stands impliedly repealed protanto. Bearing in mind
the language of the two laws, their object and purpose, and the fact that one
of them is later in point of time and was enacted with the knowledge of the non
obstante clauses in the earlier law, we have come to the conclusion that the
provisions of Section 14A and Chapter IIIA of the Rent Control Act must prevail
over those contained in Sections 19 and 39 of the Slum Clearance Act.
22. In J.K. Cotton Spinning and weaving co. Ltd. v. State of U.P. and Anr.
(1961 (3) SCR 185) it was observed as under:
"There will be complete harmony however if we hold instead that clause
5(a) will apply in all other cases of proposed dismissal or discharge except
where an inquiry is pending within the meaning of clause 23. We reach the same
result by applying another well known rule of construction that general
provisions yield to special provisions. The learned Attorney- General seemed to
suggest that while this rule of construction is applicable to resolve the
conflict between the general provision in one Act and the special provision in
another Act, the rule cannot apply in resolving a conflict between general and
special provisions in the same legislative instrument. This suggestion does not
find support in either principle or authority. The rule that general provisions
should yield to specific provisions is not an arbitrary principle made by
lawyers and judges but springs from the common understanding of men and women
that when the same person gives two directions one covering a large number of
matters in general and another to only some of them his intention is that these
latter directions should prevail as regards these while as regards all the rest
the earlier direction should have effect. In Pretty v. Solly [(1859-53 ER 1032)
(quoted in Craies on Statute Law at p. 205, 5th Edition) Romilly, M.
R. mentioned the rule thus :- "The rule is, that whenever there is a
particular enactment and a general enactment in the same statute and the
latter, taken in its most comprehensive sense, would overrule the former, the
particular enactment must be operative, and the general enactment must be taken
to affect only the other parts of the statute to which it may properly
apply". The rule has been applied as between different provisions of the
same statute in numerous cases some of which only need be mentioned : De Winton
v. Brecon [(1858) 28 L.J. Ch. 598], Churchill v.
Crease [(1828) 5 Bing. 177], United States v. Chase [(1889) 135 U.S. 255]
and Carroll v. Greenwich Ins. Co. [(1905) 199 U.S.
23. In R.M.D. Chamarbaugwalla v. UOI (1957 SCR 930) it was held as under:
"The question whether a statute which is void in part is to be treated
as void in toto, or whether it is capable of enforcement as to that part which
is valid is one which can arise only with reference to laws enacted by bodies
which do not possess unlimited powers of legislation, as, for example, the
legislatures in a Federal Union. The limitation on their powers may be of two
kinds: It may be with reference to the subject-matter on which they could
legislate, as, for example, the topics enumerated in the Lists in the Seventh
Schedule in the Indian Constitution, ss. 91 and 92 of the Canadian
Constitution, and s. 51 of the Australian Constitution; or it may be with
reference to the character of the legislation which they could enact in respect
of subjects assigned to them, as for example, in relation to the fundamental
rights guaranteed in Part III of the Constitution and similar constitutionally
protected rights in the American and other Constitutions. When a legislature
whose authority is subject to limitations aforesaid enacts a law which is
wholly in excess of its powers, it is entirely void and must be completely
ignored. But where the legislation falls in part within the area allotted to it
and in part outside it, it is undoubtedly void as to the latter; but does it on
that account become necessarily void in its entirety? The answer to this
question must depend on whether what is valid could be separated from what is
invalid, and that is a question which has to be decided by the court on a
consideration of the provisions of the Act. This is a principle well
established in American Jurisprudence, Vide Cooley's Constitutional
Limitations, Vol. I, Chap.
VII, Crawford on Statutory Construction, Chap. 16 and Sutherland on
Statutory Construction, 3rd Edn, Vol. 2, Chap. 24. It has also been applied by
the Privy Council in deciding on the validity of laws enacted by the
legislatures of Australia and Canada, Vide Attorney-General for the Commonwealth
of Australia v. Colonial Sugar Refining Company Limited [ A.C. 237] and
Attorney-General for Alberta v. Attorney-General for Canada [L.R.
 A.C. 503]. It was approved by the Federal Court in In re Hindu
Women's Rights to Property Act [ F.C.R. 12] and adopted by this Court in
The State of Bombay and another v. F. N. Balsara [ S.C.R. 682] and The
State of Bombay v. The United Motors (India) Ltd., and others [ S.C.R.
1069]. These decisions are relied on by Mr. Seervai as being decisive in his
Palkhiwala disputes this position, and maintains that on the decision of the
Privy Council in Punjab Province v. Daulat Singh and others [ F.C.R. 1]
and of the decisions of this Court in Romesh Thappar v. State of Madras [
594] and Chintaman Rao v. State of Madhya Pradesh [ S.C.R. 759], the
question must be answered in this favour.
We must now examine the precise scope of these decisions.
The resulting position may thus be stated :
When a statute is in part void, it will be enforced as regards the rest, if
that is severable from what is invalid. It is immaterial for the purpose of
this rule whether the invalidity of the statute arises by reason of its
subject-matter being outside the competence of the legislature or by reason of
its provisions contravening constitutional prohibitions.
That being the position in law, it is now necessary to consider whether the
impugned provisions are severable in their application to competitions of a
gambling character, assuming of course that the definition of 'prize
competition' in s. 2(d) is wide enough to include also competitions involving
skill to a substantial degree. It will be useful for the determination of this
question to refer to certain rules of construction laid down by the American
Courts, where the question of severability has been the subject of
consideration in numerous authorities. They may be summarised as follows :
1. In determining whether the valid parts of a statute are separable from
the invalid parts thereof, it is the intention of the legislature that is the
The test to be applied is whether the legislature would have enacted the
valid part if it had known that the rest of the statute was invalid. Vide
Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction,
Vol. 2, pp. 176-177.
2. If the valid and invalid provisions are so inextricably mixed up that
they cannot be separated from one another, then the invalidity of a portion
must result in the invalidity of the Act in its entirety. On the other hand, if
they are so distinct and separate that after striking out what is invalid, what
remains is in itself a complete code independent of the rest, then it will be
upheld notwithstanding that the rest has become unenforceable. Vide Cooley's
Constitutional Limitations, Vol. 1 at pp.
360-361; Crawford on Statutory Construction, pp. 217-218.
3. Even when the provisions which are valid are distinct and separate from
those which are invalid, if they all form part of a single scheme which is
intended to be operative as a whole, then also the invalidity of a part will
result in the failure of the whole. Vide Crawford on Statutory Construction,
4. Likewise, when the valid and invalid parts of a statute are independent
and do not form part of a scheme but what is left after omitting the invalid
portion is so thin and truncated as to be in substance different from what it
was when it emerged out of the legislature, then also it will be rejected in
5. The separability of the valid and invalid provisions of a statute does
not depend on whether the law is enacted in the same section or different
sections; (Vide Cooley's Constitutional Limitations, Vol. 1, pp. 361- 362); it
is not the form, but the substance of the matter that is material, and that has
to be ascertained on an examination of the Act as a whole and of the setting of
the relevant provisions therein.
6. If after the invalid portion is expunged from the statute what remains
cannot be enforced without making alterations and modifications therein, then
the whole of it must be struck down as void, as otherwise it will amount to
judicial legislation. Vide Sutherland on Statutory Construction, Vol.
2, p. 194.
7. In determining the legislative intent on the question of separability, it
will be legitimate to take into account the history of the legislation, its
object, the title and the preamble to it. Vide Sutherland on Statutory
Construction, Vol. 2, pp. 177- 178."
24. In AIIMS Students Union v. AIIMS (2002 (1) SCC 428) in para 35 it was
observed as follows:
"35. The principle of institutional continuity while seeking admission
to higher levels of study as propounded by the learned counsel for the
appellants though argued at length does not have much room available for
innovative judicial zeal to play, for the ground already stands almost occupied
by a set of precedents, more so when we are dealing with professional or
technical courses of study. It would suffice to have a brief resume thereof
noticing the details wherever necessary".
It was again highlighted in para 44 as follows:
"44. When protective discrimination for promotion of equalisation is
pleaded, the burden is one the party who seeks to justify the ex facie
deviation from equality. The basic rule is equality of opportunity for every
person in the country, which is a constitutional guarantee. A candidate who
gets more marks than another is entitled to preference for admission. Merit
must be the test when choosing the best, according to this rule of equal chance
for equal marks. This proposition has greater importance when we reach the
higher levels and education like post-graduate courses. Reservation, as an
exception, may be justified subject to discharging the burden of proving
justification in favour of the class which must be educationally
handicapped-the reservation geared up to getting over the handicap. The
rationale of reservation in the case of medical students must be removal of
regional or class inadequacy or like disadvantage. Even there the quantum of
reservation should not be excessive or societally injurious. The higher the
level of the speciality the lesser the role of reservation."
25. A bare reading of the provision goes to show that the burden is on the
person who justifies deviation from equality.
26. Even then, this doctrine was upheld by the Supreme Court of U.S.A. in
Plessy v. Ferguson (163 U.S. 537(1896).
This case involved a challenge to a Louisiana statute that provided for
equal but separate accommodations for black and white passengers in trains. The
Court rejected the challenge.
Justice Brown famously observed:
If one race be inferior to the other socially, the constitution of the
United States cannot put them upon the same plane. (163 U.S. at 552)
27. He held that racial segregation was a reasonable exercise of State
police power for the promotion of the public good and upheld the law.
28. Thus, even in this second phase, affirmative action was never truly
initiated the country was still struggling to establish even a formally equal
29. At the same time, another very important development in its
constitutional law was taking place, which would later have a serious impact on
affirmative action programmes. This was the birth of the doctrine of strict
30. 'Strict scrutiny' is one of the three standards for judicial review of
legislative and administrative action developed in the United States, the other
being "rational basis" and "intermediate scrutiny".
31. The origin of this standard can be traced to the decision in United
States v Carolene Products (304 U.S. 144 (1938).
The question before the Court was whether the Filled Milk Act, 1923 which
prohibited the shipment in interstate commerce of skimmed milk compounded with
any fat or oil other than milk fat, so as to resemble milk or cream,
transcended the power of Congress to regulate inter state commerce or infringed
the Fifth Amendment. Justice Harlan Stone, writing the opinion for the Court,
upheld the law, holding that the existence of facts supporting the legislative
judgment was to be presumed, for regulatory legislation affecting ordinary
commercial transactions was not to be pronounced unconstitutional unless in the
light of the facts made known or generally assumed it was of such a character as
to preclude the assumption that it rested upon some rational basis within the
knowledge and experience of the legislators. However, he added what has been
described as "the most celebrated footnote in constitutional law".
"There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a specific
prohibition of the Constitution, such as those of the first ten Amendments,
which are deemed equally specific when held to be embraced within the
32. What the Court was saying was that economic legislation would be judged
by a standard of "rational basis" so long as the law was a rational
way of furthering a legitimate governmental purpose, it was valid. However,
where the legislation "on its face" appeared to be violating any of
the fundamental rights, a more exacting standard would be applied.
33. The precise term "strict scrutiny" was used by the Court for
the first time in Skinner v. Oklahoma (316 U.S. 535 (1942).
The Oklahoma Habitual Criminal Sterilisation Act provided for vasectomy to
be performed on any person convicted two or more times for crimes amounting to
"felonies involving moral turpitude". Justice Douglas, giving the
opinion of the Court, described the statute as violating the right to have
offspring "a right which is basic to the perpetuation of a race".
The question before the Court was whether this statute violated the 14th
Amendment. Holding that it did, Justice Douglas observed:
"Strict scrutiny of the classification which a State makes in a
sterilization law is essential, lest unwittingly or otherwise invidious
discriminations are made against groups or types of individuals in violation of
the constitutional guarantee of just and equal laws."
34. In India there has to be collective commitment for upliftment of those
who needed it. In that sense, the question again comes back to the basic issue
as to whether the action taken by the Government can be upheld after making
judicial scrutiny. Much assistance is not available to the petitioners from the
35. It is to be noted that the doctrine of separation as is prevalent in the
American Society is not of much consequence in the Indian scenario. It needs to
be clarified that the expression 'strict scrutiny' has also been used by the
Indian Courts in Narendra Kumar and Ors. v. Union of India and Ors.
(1960 (2) SCR 375) but it appears to have been used in different context.
What really appears to be the intention for the use of the expression is
"careful and deeper scrutiny" and not in the sense of strict scrutiny
of the provisions as is prevalent in the American jurisprudence. It is used in
different sense. The application appears to be in technical sense in the
American Courts, for example, Regents of University of California v. Allan
Bakke (438 U.S. 265).
36. Some of the judgments of American Courts throwing light on the
controversy need to be noted:
37. In Allan Bakke's case (supra) it was held as follows:
"Hence, the purpose of helping certain groups whom the faculty of the
Davis Medical School perceived as victims of "societal
discrimination" does not justify a classification that imposes
disadvantages upon persons like respondent, who bear no responsibility for
whatever harm the beneficiaries of the special admissions".
"The fatal flaw in petitioner's preferential program is its disregard
of individual rights as guaranteed by the Fourteenth Amendment.
Shelley v. Kraemer, 334 US, at 22, 92 L Ed 1161, 68 S Ct 836, 3 ALRd 441.
Such rights are not absolute. But when a State's distribution of benefits or
imposition of burdens hinges on ancestry or the color of a person's skin or
ancestry, that individual is entitled to a demonstration that the challenged
classification is necessary to promote a substantial state interest. Petitioner
has failed to carry this burden."
38. In Grutter v. Bollinger (539 U.S. 306) it was held as follows:
[21, 22a] "We acknowledge that "there are serious problems of
justice connected with the idea of preference itself." Bakke, 438 US, at
298, 57 L Ed 2d 750, 98 S Ct 2733 (opinion of Powell, J). Narrow tailoring,
therefore, requires that a race-conscious admissions program not unduly harm
members of any racial group.
Even remedial race-based governmental action generally "remains subject
to continuing oversight to assure that it will work the least harm possible to
other innocent persons competing for the benefit." Id., at 308, 57 L Ed 2d
750, 98 S Ct 2733. To be narrowly tailored, a race-conscious admissions program
must not "unduly burden individuals who are not members of the favored
racial and ethnic groups." Metro Broadcasting, Inc. v. FCC, 497 Us 547,
630, 111 L Ed 2d 445, 110 S Ct 2997 (1990) (O' Connor, J., dissenting).
[22b, 23] We are satisfied that the Law School's admissions program does
Because the Law School considers "all pertinent elements of
diversity," it can (and does) select non-minority applicants who have
greater potential to enhance student body diversity over underrepresented
minority applicants. See Bakke, supra, at 317, 57 L Ed 2d 750, 98 S Ct 2733
(opinion of Powell, J). As Justice Powell recognized in Bakke, so long as a
race-conscious admissions program uses race as a "plus" factor in the
context of individualized consideration, a rejected applicant "will not
have been foreclosed from all consideration for that seat simply because he was
not the right color or had the wrong surname His qualifications would have
been weighed fairly and competitively, and he would have no basis to complain
of unequal treatment under the Fourteenth Amendment."
438 US, at 318, 57 L Ed 2d 750, 98 S Ct 2733.
[13f, 22C] We agree that, in the context of its individualized inquiry into
the possible diversity contributions of all applicants, the Law School's
race-conscious admissions program does not unduly harm nonminority applicants.
[24, 25a, 26] We are mindful, however, that "[a] core purpose of the
Fourteenth Amendment was to do away with all governmentally imposed
discrimination based on race" Palmore v Sidoti, [539 US 342] 466 US 429,
432, 80 L Ed 2d, 421, 104 s Ct 1879 (1984). Accordingly, race-conscious
admissions policies must be limited in time.
This requirement reflects that racial classifications, however, compelling
their goals are potentially so dangerous that they may be employed no more
broadly than the interest demands. Enshrining a permanent justification for
racial preferences would offend this fundamental equal protection principle.
We see no reason to exempt race-conscious admissions programs from the
requirement that all governmental use of race must have a logical end point.
The Law School, too, concedes that all "race-conscious programs must have
reasonable durational limits." Brief for Respondent Bollinger et al. 32.
[25b] In the context of higher education, the durational requirement can be met
by sunset provisions in race-conscious admissions policies and periodic reviews
to determine whether racial preferences are still necessary to achieve student
body diversity. Universities in California, Florida, and Washington State,
where racial preferences in admissions are prohibited by state law, are
currently engaged in experimenting with a wide variety of alternative
approaches. Universities in other States can and should draw on the most
promising aspects of these race-neutral alternatives as they develop. Cf.
United States v. Lopez, 514 US 549, 581, 131 L Ed 2d 626, 115 S Ct 1624 (1995)
(Kennedy, J., concurring) ("[T] he States may perform their role as
laboratories for experimentation to devise various solutions where the best
solution is far from clear"). The requirement that all race-conscious
admissions programs have a termination point "assure[s] all citizens that
the deviation from the norm of equal treatment of all racial and ethnic groups
is a temporary matter, a measure taken in the service of the goal of equality
itself." Richmond v. J.A. Croson Co., 488 US, at 510, 102 L Ed 2d 854, 109
S Ct 706 (plurality opinion); see also Nathanson & Bartnik. The
Constitutionality of Preferential Treatment for Minority Applicants to
Professional Schools, [539 US 343] 58 Chicago Bar Rec. 282, 293 (May-June 1977)
("It would be a sad day indeed, were America to become a quota- ridden
society, with each identifiable minority assigned proportional representation
in every desirable walk of life. But that is not the rationale for programs of
preferential treatment; the acid test of their justification will be their
efficacy in eliminating the need for any racial or ethnic preferences at
39. The provisions of the American Constitution in United States relating to
formal equality concept do not appear to have operated from the beginning of
the American Constitution.
40. Although even under the 1919 and 1935 Government of India Acts the
rights of certain class of people like Scheduled Castes, Scheduled Tribes and
the deprived classes have been recognized, in America, the rights have been
conferred on individuals and so much on the groups. The freedoms contemplated
by the Indian Constitution originally related to seven categories which
presently stand at six after the property rights were deleted. The stand of Mr.
Vahanvati and Mr. Gopal Subramanium is that the logic of strict scrutiny,
compelling the Government and narrow tailoring do not have relevance so far as
the present case is concerned.
41. In Thomas's case (supra) it was clearly noticed by this Court that
American conditions do not apply adequately for the Indian scenario. Unlike
U.S.A., the targeted beneficiaries are alien to our Constitution. In India
cognizance has been taken constitutionally. The victims of untouchability,
identifying social and economic backwardness have been accepted as permissible
measures. However, the question how long they can be continued is another
aspect which shall be dealt with separately. Rationality in that sense is a
measure for the special provisions. But the question that still needs to be
addressed is whether these groups are really identifiable.
While formulating the policy all factors need not be specifically expressed
but there must be some criteria to identify social and educational
42. In A.K. Roy v. Union of India (1982 (1) SCC 271) it was noted as
"8. We are not, as we cannot be, unmindful of the danger to people's
liberties which comes in any community from what is called the tyranny of the
majority. Uncontrolled power in the executive is a great enemy of freedom and
therefore, eternal vigilance is necessary in the realm of liberty. But we
cannot transplant, in the Indian context and conditions, principles which took
birth in other soils, without a careful examination of their relevance to the
interpretation of our Constitution. No two Constitutions are alike, for it is
not mere words that make a Constitution. It is the history of a people which
lends colour and meaning to its Constitution. We must therefore turn inevitably
to the historical origin of the ordinance making power conferred by our
Constitution and consider the scope of that power in the light of the
restraints by which that power is hedged. Neither in England nor in the United
States of America does the executive enjoy anything like the power to issue
ordinances. In India, that power has a historical origin and the executive, at
all times, has resorted to it freely as and when it considered it necessary to
do so. One of the larger States in India has manifested its addiction to that
power by making an overgenerous use of it so generous indeed, that ordinances
which lapsed by efflux of time were renewed successively by a chain of kindred
creatures, one after another. And, the ordinances embrace everything under the
sun, from Prince to pauper and crimes to contracts.
The Union Government too, so we are informed passed about 200 Ordinances
between 1960 and 1980, out of which 19 were passed in 1980".
43. One of the grey areas focused by learned counsel for the petitioners and
the respondents is the ever perplexing question "how long". The
respondents say that so long as the problems of backwardness exist they can be
continued. The petitioners have highlighted that notwithstanding the concerns
shown in Indra Sawhney No.1 and in a large number of cases that the
reservations are not meant to be a permanent feature there is a case for
concern. Admittedly, there is no deletion from the list of other backward
classes. It goes on increasing. Learned counsel for the respondents have stated
that in large number of cases where applications were made for inclusion they
have been turned down. But that is no answer to the question as to why and how
there has been no exclusion. Is it that backwardness has increased instead of
decreasing. If the answer is 'yes', as contended by the respondents, then one
is bound to raise eyebrows as to the effectiveness of providing reservations or
44. The ultimate object is to bring those who are disadvantaged to a level
where they no longer continue to be dis-advantaged. It needs no emphasis that
individual rights are superior to the social rights. All fundamental rights are
to be read together. The inequalities are to be removed. Yet the fact that
there has been no exclusion raises a doubt about the real concern to remove
45. The ultimate objective is to bring people to a particular level so that
there can be equality of opportunity. In that context, one has to keep in view
the justice and redress principles. There should not be mere equality in law
but equality in fact.
46. The necessary ingredients of equality essentially involve equalization
of unequals. Linked with this question the problem posed by the petitioners is
whether reservation is the only way to equalize unequals? There are several
methods and modes. If reservation really does not work as contended by the
petitioners, then the alternative methods can be adopted. It is the stand of
the respondents that not only reservations but other incentives like free
lodging and boarding facilities have been provided in some States.
47. Learned counsel for the respondents have stated that the measures under
challenge are nothing but a much needed leap towards attainment of the
objectives. If it is true, the leap has to end somewhere. It cannot hang in the
air as there is nothing immortal in this world; much less, a progressive
measure purportedly intended to benefit the other backward classes. If after
nearly six decades the objectives have not been achieved, necessarily the need
for its continuance warrants deliberations. It is to be noted that some of the
provisions were intended to be replaced after a decade but have continued. It
indirectly shows that backwardness appears to have purportedly increased and
not diminished. It would therefore be rational and logical to restrict
operation of the impugned Statute for a period of 10 years from its inception.
48. At this juncture, report of the Oversight Committee throws considerable
light on the controversy. Some parts of the Report need to be noted.
This report seeks to expand the provision of Higher Education while at the
same time ensuring social inclusion and academic excellence. A society which
excludes a significant section of its population from access to higher
education cannot be said to be providing equality of opportunity.
Equally, if academic excellence gets compromised in the process of
expansion, it would lose its competitive edge in the emerging knowledge society
an edge which can propel India into a position of global leadership.
Page X and XI of the report A simpler way of implementing reservations was
to steamroll our way through, in the name of social equity, regardless of its
impact on quality and excellence. We have deliberately chosen the more
difficult way which delivers equity in a manner that enhances excellence i.e.
by making concomitant investments in faculty & infrastructure and by
bringing much needed governance related reforms involving institutional,
financial and administrative autonomy and process re-engineering in our Higher
Educational Governance system. It is easy to equalize by "mindlessly
leveling everyone down to lowest common-denominator". Our effort has been
to create an upward moving equalization process- where the disabilities are
overcome by the erstwhile excluded sections and the system brings out the best
Besides the many out of the box innovative ideas concerning faculty and
infrastructure related issues, I believe three of our recommendations, which
cut horizontally across the five groups, are critical to the establishment of
the goal of an "inclusive society, in pursuit of excellence". These
four programmes are considered by the Oversight Committee to be integral to the
above vision and should be considered to be inseverable part of our core
recommendations. (page-x) We have to acknowledge that the challenges facing us
in the entire education sector are enormous and in the Tertiary Education
Sector these can be met, only if both public and private funding to educational
institutions increased several fold. The need for private participation in this
mammoth task cannot be over-emphasized but market forces themselves cannot
The relative importance of public vs. private funding is brought out very
strongly by Joseph Stiglitz when he opined "I had studied the failures of
both markets and governments, and was not so naove to think that the government
could remedy every failure. Neither was I so foolish as to believe that markets
by themselves solved every societal problem. Inequality, unemployment,
these are all important issues in which Government has to take an importance
"Expansion, Inclusion and Excellence" has been our credo. They
have remained the abiding theme guiding all our deliberations. I will be
failing in my duty if the Oversight Committee does not acknowledge the source
of inspiration for our deliberations. It is the Prime Minister's speech giving
the overpowering vision of the "need to create the second wave of nation
building" which has inspired us in our thoughts and deliberations. I would
also like to express my gratitude to Hon'ble HRD Minister, Sri Arjun Singhji
for his affection and guidance right through. (Page-xi) Treatment of the creamy
Layer (Chapter IV- Report of Oversight Committee Vol.-I)
4.2 (b) The true benefit of reservations will be realized only when the high
school enrolment of OBCs, especially in rural areas, increases significantly.
Attention will need to be paid to this issue in the coming years.
Chapter VI- Estimate of Resources required for the expansion
6.1 In overall terms, the total estimated expenditure on the expansion has
now been assessed by the five Sub-Groups in their final reports at Rs.18,197.83
crore, as compared to the amount of Rs.16,563.34 crore, that was included by
the Oversight Committee in its interim report. The summary statement of
additional student strength, faculty required and estimates of recurring and
non-recurring expenditure that have been projected by the Groups are as at
Table 6.1 and the year-wise break up is at table 6.2.
6.3 The Committee in its discussions with the individual Groups, had
stressed the need to estimate the additional infrastructure and manpower that
would be required after taking into account the slack, if any, in the existing
facilities as also the scope for using IT as a resource multiplier.
While the Groups seems to have accepted this in principle, their expenditure
projections, and the norms on which they are based seems to have just
extrapolated past trends. The Committee has had some input regarding global
trends and the best practices being followed in the world's leading
institutions. Based on this, and in consultation with experts, the Committee
has developed a plan for a "Gyan Vahini" project, as has been
explained in an earlier Chapter in this report. The total expenditure on this
component of the expansion and upgradation project would be Rs.1752 crore in 5
years. Apart from significantly enhancing the quality of instruction and
learning, and brining it close to the best levels in the world, this investment
will certainly contribute to efficiency and to reducing the conventional costs
of the higher education system.
Summary Statement of Expenditure Requirements (As given in the Final Reports
of the Groups) Sector No. of Instns.
Existing Student Intake Annual Addl.
Student Intake Addl.
Facility Required Non Recurring Ex.
Recur ring Exp.
(5Yrs) Total Exp.
In 5 Yrs.
Agricu lture 5 825 454 187 102.75 92.71 195.46 Central Univers ities 17
92011 49689 6609 2702.11 2455.
03 Manag ement 7 1791 966 139 511.32 177.
80 Medic al 11 993 565 N.A.
67 Engin eering 38 29671 16440 4919 5503.83 3840.
87 Grand Total 125291 68114 11854 10603.99 7593.
83 Chapter VII- The Way Forward
7.1 As indicated earlier in this report, this opportunity for expansion,
inclusion and excellence should only be the beginning of a larger process,
which is to build a knowledge society in India and allow the country to take
its rightful place in the comity of nations. Our recent economic growth and the
values of knowledge and education carried forward by a billion diverse people,
point to India's potential future as a knowledge society. Other countries that
visualize a similar future have planned massive investments in order to enhance
both the quality and quantity of higher education and research. China, for
example, has made substantial increase in its allocation of resources of higher
education. In the first phase, China has provided a grant of US $ 125 million
to each of the 10 leading universities and US $ 225 million to Beijing and
Tsinghua Universities. In the second phase, China proposes to provide
additional grants to 30 universities, with the objective of having 100 high
quality universities in China in the 21st century and with 15% of the citizens
in the age group 18-22 receiving tertiary education.
7.2 India has suffered in the past because of severe under investment in
higher education. This has been caused partly by the thinking that looks at
primary and higher education in an either or manner. It is very clear however
that large public investment is needed in both sectors. As Prime Minister Dr.
Manmohan Singh said, while launching the Knowledge Commission, "At the
bottom of the knowledge pyramid, the challenge is one of improving access to
primary education. At the top of the pyramid there is need to make our
institutions of higher education and research world class. The time has come
for India to embark on a second wave of nation building. Denied this
investment, the youth will become a social and economic liability.
49. It was emphasized by learned counsel for the petitioners that the
massive financial burden question finds no place in the parliamentary debate.
In response, Mr. Vahanvati has submitted that before the Parliamentary Standing
Committee, the report of the Oversight Committee was available. When the
Oversight Committee's report was discussed in detail, needless to say the
financial aspect was also considered.
50. It has been highlighted by Mr. P.P. Rao that unmindful of the duty to
focus on primary and elementary education, large sums of money are intended to
be used for implementation of Statute. Various figures and datas have been
highlighted to show that there is really no concern for the primary and
elementary education. Repelling these contentions Mr.
Vahanvati has highlighted that there is no laxity so far as primary and
elementary education is concerned. He has referred to voluminous details
relating to Sarva Shiksha Abhiyan. It is contended that uniform policy of
elementary education and the progress made upto 31.3.2007 shows the concern of
the Government to translate into reality the constitutional objective of providing
adequate education to all citizens. It is true that there has been considerable
effort in this regard. But one question still remains to be answered.
There has to be balancing of priorities. Mr. Vahanvati has said that this
balancing is prerogative of the Government. It is true that Government has a
large area of discretion in choosing its priorities. But one factor cannot be
lost sight of. The fundamental stress has to be on elementary education. If
that is done, as a consequence there would be reduction in the need for
spending more money on higher education. Stress on primary and elementary
education would be a leap forward towards higher education. There has been
considerable number of drop outs in the higher classes. This is a reality in
spite of all steps which the Government claims to have adopted to ensure that
every child of a particular age group has education as warranted by the
Constitution as a fundamental right.
51. Unni Krishnan, J.P. and Ors. v. State of A.P. and Ors.
(1993 (1) SCC 645) emphasized on the importance of education in the
"166. In Bandhua Mukti Morcha this Court held that the right to life
guaranteed by Article 21 does take in "educational facilities". (The
relevant portion has been quoted herein before). Having regard to the
fundamental significance of education to the life of, an individual and the
nation, and adopting the reasoning and logic adopted in the earlier decisions
of this Court referred to herein before, we hold, agreeing with the statement in
Bandhua Mukti Morcha, that right to education is implicit in and flows from the
right to life guaranteed by Article 21. That the right to education has been
treated as one of transcendental importance in the life of an individual has
been recognised not only in this country since thousands of years, but all over
the world. In Mohini Jain, the impatience of education has been duly and
The relevant observations have already been set out in para 7 herein before.
In particular, we agree with the observation that without education being
provided to the citizens of this country, the objectives set forth in the
Preamble to the Constitution cannot be achieved. The Constitution would fail.
We do not think that the importance of education could have been better
emphasised than in the above words. The importance of education was emphasised
in the "Neethishatakam' by Bhartruhari (First Century B.C. in the
Education is the special manifestation of man; Education is the treasure
which can be preserved without the fear of loss;
Education secures material pleasure, happiness and fame;
Education is the teacher of the teacher;
Education is God incarnate;
Education secures honour at the hands of the State, not money.
A man without education is equal to animal.
168. In Brown v. Board of Education (347 US 483 (1954) Earl Warren, C.J.,
speaking for the U.S. Supreme Court emphasized the right to education in the
"Today, education is perhaps the most important function of State and
local governmentsIt is required in the performance of our most basic
responsibilities, even service in the armed forces. It is the very foundation
of good citizenship.
Today it is the principal instrument in awakening the child to cultural values,
in preparing him for later professional training, and in helping him to adjust
normally to his environment. In these days, it is doubtful any child may
reasonably be expected to succeed in life if he is denied the opportunity of an
52. Observations of this Court in AIIMS Students' Union case (supra)
highlight the importance of higher education and the modalities to be adopted
for ensuring excellence are in the following words:
"58. The Preamble to the Constitution of India secures, as one of its
objects, fraternity assuring the dignity of the individual and the unity and
integrity of the nation to 'we he people of India'. Reservation unless
protected by the constitution itself, as given to us by the founding fathers
and as adopted by the people of India, is sub-version of fraternity, unity and
integrity and dignity of the individual. While dealing with Directive
Principles of State Policy, Article 46 is taken note of often by overlooking
Articles 41 and 47. Article 41 obliges the State inter alia to make effective
provision for securing the right to work and right to education. Any
reservation in favour of one, to the extent of reservation, is an inroad on the
right of others to work and to learn.
Article 47 recognises the improvement of public health as one of the primary
duties of the State. Public health can be improved by having the best of
doctors, specialists and super specialists. Under-graduate level is a primary
or basic level of education in medical sciences wherein reservation can be
understood as the fulfilment of societal obligation of the State towards the
weaker segments of the society. Beyond this, a reservation is a reversion or
diversion from the performance of primary duty of the State.
Permissible reservation at the lowest or primary rung is a step in the
direction of assimilating the lesser fortunates in mainstream of society by
bringing them to the level of others which they cannot achieve unless
protectively pushed. Once that is done the protection needs to be withdrawn in the
own interest of protectees so that they develop strength and feel confident of
stepping on higher rungs on their own legs shedding the crutches. Pushing the
protection of reservation beyond the primary level betrays bigwigs' desire to
keep the crippled crippled for ever.
Rabindra Nath Tagore's vision of a free India cannot be complete unless
"knowledge is free"
and "tireless striving stretches its arms towards perfection".
Almost a quarter century after the people of India have given the Constitution
unto themselves, a chapter on fundamental duties came to be incorporated in the
Constitution. Fundamental duties, as defined in Article 51A, are not made
enforceable by a writ of court just as the fundamental rights are, but it
cannot be lost sight of that 'duties' in Part IVA - Article 51A are prefixed by
the same word 'fundamental' which was prefixed by the founding fathers of the
Constitution to 'rights' in Part III. Every citizen of India is fundamentally
obliged to develop the scientific temper and humanism.
He is fundamentally duty bound to strive towards excellence in all spheres
of individual and collective activity so that the nation constantly rises to
higher levels of endeavour and achievements. State is, all the citizens placed
together and hence though Article 51A does not expressly cast any fundamental
duty on the State, the fact remains that the duty of every citizen of India is
the collective duty of the Sate. Any reservation, apart from being sustainable
on the constitutional anvil, must also be reasonable to be permissible. In
assessing the reasonability one of the factors to be taken into consideration
would be -- whether the character and quantum of reservation would stall or
accelerate achieving the ultimate goal of excellence enabling the nation
constantly rising to higher levels. In the era of globalisation, where the
nation as a whole has to compete with other nations of the world so as to
survive, excellence cannot be given an unreasonable go by and certainly not
compromised in its entirety. Fundamental duties, though not enforceable by a
writ of the court, yet provide a valuable guide and aid to interpretation of
constitutional and legal issues. In case of doubt or choice, people's wish as
manifested through Article 51A, can serve as a guide not only for resolving the
issue but also for constructing or moulding the relief to be given by the
courts. Constitutional enactment of fundamental duties, if it has to have any
meaning, must be used by courts as a tool to tab, even a taboo, on State action
drifting away from constitutional values".
53. Respondents have vehemently contended that the concept of creamy layer
may have relevance for the purpose of Article 16(4), but is really
inconsequential so far as Articles 15(4) and 15(5) are concerned. It is
submitted that Article 16(4) is relatable to inadequate representation in
Government services and in that context the well to do in the socially and
educationally backward classes have to be excluded in view of the decisions of
this Court. But that logic cannot apply to the present dispute which relates to
admissions to educational institutions. Before considering the question as to
the desirability of excluding 'creamy layer' the concept of creamy layer needs
to be focused upon. Observations of this Court in various cases on this concept
need to be noted.
54. In N.M. Thomas's case (supra) at page 363, it was inter alia observed as
"124. A word of sociological caution. In the light of experience, here
and elsewhere, the danger of "reservation", it seems to me, is
threefold. Its benefits, by and large, are snatched away by the top creamy
layer of the "backward" caste or class, thus keeping the weakest
among the weak always weak and leaving the fortunate layers to consume the whole
cake. Secondly, this claim is overplayed extravagantly in democracy by large
and vocal groups whose burden of backwardness has been substantially lightened
by the march of time and measures of better education and more opportunities of
employment, but wish to wear the "weaker section" label as a means to
score over their near-equals formally categorised as the upper brackets.
Lastly, a lasting solution to the problem comes only from improvement of social
environment, added educational facilities and cross- fertilisation of castes by
inter-caste and inter- class marriages sponsored as a massive State programme,
and this solution is calculatedly hidden from view by the higher
groups with a vested interest in the plums of backwardism. But social
science research, not judicial impressionism, will alone tell the whole truth
and a constant process of objective re-evaluation of progress registered by the
"underdog" categories is essential lest a once deserving
"reservation" should be degraded into "reverse discrimination".
Innovations in administrative strategy to help the really untouched, most
backward classes also emerge from such socio-legal studies and audit exercises,
if dispassionately made. In fact, research conducted by the A.N. Sinha
Institute of Social Studies, Patna, has revealed a dual society among harijans,
a tiny elite gobbling up the benefits and the darker layers sleeping distances
away from the special concessions.
For them, Articles 46 and 335 remain a "noble romance", the
bonanza going to the "higher"
harijans. I mention this in the present case because lower division clerks
are likely to be drawn from the lowest levels of harijan humanity and promotion
prospects being accelerated by withdrawing, for a time, "test"
qualifications for this category may perhaps delve deeper. An equalitarian
breakthrough in a hierarchical structure has to use many weapons and Rule 13/AA
perhaps is one.
Xx xx xx 139. It is platitudinous constitutional law that Articles 14 to 16
are a common code of guaranteed equality, the first laying down the broad
doctrine, the other two applying it to sensitive areas historically important
and politically polemical in a climate of communalism and jobbery.
55. In Vasant Kumar's case (supra) at page 732 the view was re-iterated in
the following words :
"24. In order to appreciate the view point advanced by Mr Desai which
appeals to me both for its indepth study of the problem, and a fresh outlook on
this vexed problem, at the outset let me take a look at the futuristic view of
the Indian Society as envisaged in the Constitution. No one is left in any
doubt that the future Indian Society was to be casteless and classless. Pandit
Jawaharlal Nehru the first Prime Minister of India said that Mahatma Gandhi has
shaken the foundations of caste and the masses have been powerfully affected.
But an even greater power than Gandhi is at work, the conditions of modern life
and it seems at last this hoary and tenacious ralic of past times must die.
Mahatma Gandhi, the Father of the Nation said, "The caste system as we
know is an anachronism. It must go if both Hinduism and India are to live and
grow from day to day". In its onward march towards realising the
constitutional goal, every attempt has to be made to destroy caste
stratification. Article 38(2) enjoins the State to strive to minimise the
inequality in income and endeavour to eliminate inequalities in status,
facilities and opportunities, not only amongst individuals but also amongst
groups of people residing in different areas or engaged in different vocations.
Article 46 enjoins duty to promote with special care the educational and
economic interests of the weaker sections of the people, and in particular of
the Scheduled Castes and Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation.
Continued retention of the division of the society into various castes
simultaneously introduces inequality of status. And this inequality in status
is largely responsible for retaining inequality in facilities and opportunities,
ultimately resulting in bringing into existence an economically depressed class
for transcending caste structure and caste barrier. The society therefore was
to be classless casteless society. In order to set up such a society, steps
have to be taken to weaken and progressively eliminate caste structure.
Unfortunately, the movement is in the reverse gear. Caste stratification has
become more rigid to some extent, and where concessions and preferred treatment
schemes are introduced for economically disadvantaged classes, identifiable by
caste label, the caste structure unfortunately received a fresh lease of life.
In fact there is a mad rush for being recognized as belonging to a caste which
by its nomenclature would be included in the list of socially and educationally
backward classes. To illustrate:
Bakshi Commission in Gujarat recognized as many as 82 castes as being
socially and educationally backward. On the publication of its report,
Government of Gujarat received representations by members of those castes who
had not made any representation to the Bakshi Commission for treating them as
socially and educationally backward. This phenomenon was noticed by Mandal
Commission when it observed: "Whereas the Commission has tried to make the
State-wise lists of OBCs as comprehensive as possible, it is quite likely that
several synonymy of the castes listed as backward have been left out. Certain
castes are known by a number of synonymy which vary from one region to the
other and their complete coverage is almost impossible". Mandal Commission
found a way out by recommending that if a particular caste has been listed as
backward then all its synonyms whether mentioned in the State lists or not
should also be treated as backward.
Gujarat Government was forced to appoint a second commission known as Rane
Commission. Rane Commission took note of the fact that there was an organised
effort for being considered socially and educationally backward castes. Rane
Commission recalled the observations in Balaji case that "Social
backwardness is on the ultimate analysis the result of poverty to a very large
extent". The Commission noticed that some of the castes just for the sake
of being considered as socially and educationally backward, have degraded
themselves to such an extent that, they had no hesitation in attributing
different types of vices to and associating other factors indicative of
backwardness, with their castes. The Commission noted that the malaise requires
to be remedied. The Commission therefore, devised a method for determining
socially and educationally backward classes without reference to caste,
beneficial to all sections of people irrespective of the caste to which they
belong. The Commission came to an irrefutable conclusion that amongst certain castes
and communities or class of people, only lower income groups amongst them are
socially and educationally backward. We may recall here a trite observation in
case of N.M. Thomas which reads as under (SCC pg.363 para 124):
"A word of sociological caution. In the light of experience, here and
elsewhere, the danger of 'reservation', it seems to me, is threefold. Its
benefits, by and large, are snatched away by the top creamy layer of the
'backward' caste or class, thus keeping the weakest among the weak always weak
and leaving the fortunate layers to consume the whole cake. Secondly, this
claim is overplayed extravagantly in democracy by large and vocal groups whose
burden of backwardness has been substantially lightened by the march of time
and measures of better education and more opportunities of employment, but wish
to wear the 'weaker section' label as a means to score over their near-equals
formally categorised as the upper brackets."
25. A few other aspects for rejecting caste as the basis for identifying
social and educational backwardness may be briefly noted. If State patronage
for preferred treatment accepts caste as the only insignia for determining
social and educational backwardness, the danger looms large that this approach
alone would legitimise and perpetuate caste system. It does not go well with
our proclaimed secular character as enshrined in the Preamble to the
Constitution. The assumption that all members of same caste a re equally
socially and educationally backward is not well-founded. Such an approach
provides an over-simplification of a complex problem of identifying the social
and educational backwardness. The Chairman of the Backward Classes Commission,
set up in 1953, after having finalised the report, concluded that "it
would have been better if we could determine the criteria of backwardness on
principles other than caste". Lastly it is recognised without dissent that
the caste based reservation has been usurped by the economically well-placed
section in the same caste. To illustrate, it may be pointed that some years
ago, I came across a petition for special leave against the decision of the
Punjab and Haryana High Court in which the reservation of 2= per cent for
admission to medical and engineering colleges in favour of Majhabi Sikhs was
challenged by none other than the upper crust of the members of the Scheduled
castes amongst Sikhs in Punjab, proving that the labeled weak exploits the
really weaker. Add to this, the findings of the Research Planning Scheme of
sociologists assisting the Mandal Commission when it observed: "while
determining the criteria of socially and educationally backward classes, social
backwardness should be considered to be the critical element and educational
backwardness to be the linked element though not necessarily derived from the
former". The team ultimately concluded that "social backwardness
refers to ascribed status, and it considered social backwardness as the
critical element and educational backwardness to be the linked though not derived
element". The attempt is to identify socially and educationally backward
classes of citizens. The caste, as is understood in Hindu Society, is unknown
to Muslims, Christians, Parsis, Jews etc. Caste criterion would not furnish a
reliable yardstick to identify socially and educationally backward group in the
aforementioned communities though economic backwardness would.
28. Reservation in one or other form has been there for decades. If a survey
is made with reference to families in various castes considered to be socially
and educationally backward, about the benefits of preferred treatment, it would
unmistakably show that the benefits of reservations are snatched away by the
top creamy layer of the backward castes.
This has to be avoided at any cost.
56. Significantly in Indra Sawhney No.1 it was emphatically noted as
"520. Society does not remain static. The industrialisation and the
urbanisation which necessarily followed in its wake, the advance on political,
social and economic fronts made particularly after the commencement of the
Constitution, the social reform movements of the last several decades, the
spread of education and the advantages of the special provisions including
reservations secured so far, have all undoubtedly seen at least some individuals
and families in the backward classes, however small in number, gaining
sufficient means to develop their capacities to compete with others in every
field. That is an undeniable fact. Legally, therefore, they are not entitled to
be any longer called as part of the backward classes whatever their original
birthmark. It can further hardly be argued that once a backward class, always a
backward class. That would defeat the very purpose of the special provisions
made in the Constitution for the advancement of the backward classes, and for
enabling them to come to the level of and to compete with the forward classes,
as equal citizens. On the other hand, to continue to confer upon such advanced
sections from the backward classes the special benefits, would amount to
treating equals unequally violating the equality provisions of the
Constitution. Secondly, to rank them with the rest of the backward classes
would equally violate the right to equality of the rest in those classes, since
it would amount to treating the unequals equally. What is more, it will lead to
perverting the objectives of the special constitutional provisions since the
forwards among the backward classes will thereby be enabled to lap up all the
special benefits to the exclusion and at the cost of the rest in those classes,
thus keeping the rest in perpetual backwardness. The object of the special
constitutional provisions is not to uplift a few individuals and families in
the backward classes but to ensure the advancement of the backward classes as a
whole. Hence, taking out the forwards from among the backward classes is not
only permissible but obligatory under the Constitution. However, it is
necessary to add that just as the backwardness of the backward groups cannot be
measured in terms of the forwardness of the forward groups, so also the
forwardness of the forwards among the backward classes cannot be measured in
terms of the backwardness of the backward sections of the said classes. It has
to be judged on the basis of the social capacities gained by them to compete
with the forward classes. So long as the individuals belonging to the backward
classes do not develop sufficient capacities of their own to compete with
others, they can hardly be classified as forward.
xx xx xx 629. More backward and backward is an illusion. No constitutional
exercise is called for it. What is required is practical approach to the
problem. The collectivity or the group may be backward class but the
individuals from that class may have achieved the social status or economic
affluence. Disentitle them from claiming reservation. Therefore, while
reserving posts for backward classes, the departments should make a condition
precedent that every candidate must disclose the annual income of the parents
beyond which one could not be considered to be backward. What should be that
limit can be determined by the appropriate State. Income apart, provision
should be made that wards of those backward classes of persons who have
achieved a particular status in society either political or social or economic
or if their parents are in higher services then such individuals should be
precluded to avoid monopolisation of the services reserved for backward classes
by a few. Creamy layer, thus, shall stand eliminated. And once a group or
collectivity itself is found to have achieved the constitutional objective then
it should be excluded from the list of backward class.
Therefore, (1) No reservation can be made on economic criteria.
(2) It may be under Article 16(4) if such class satisfies the test of
(3) Exclusion of creamy layer is a social purpose. Any legislative or
executive action to remove such persons individually or collectively cannot be
Xx xx xx 790. 'Means-test' in this discussion signifies imposition of an
income limit, for the purpose of excluding persons (from the backward class)
whose income is above the said limit. This submission is very often referred to
as the "creamy layer" argument. Petitioners submit that some members
of the designated backward classes are highly advanced socially as well as
economically and educationally. It is submitted that they constitute the
forward section of that particular backward class as forward as any other
forward class member and that they are lapping up all the benefits of
reservations meant for that class, without allowing the benefits to reach the
truly backward members of that class. These persons are by no means backward
and with them a class cannot be treated as backward. It is pointed out that
since Jayasree almost every decision has accepted the validity of this
791. On the other hand, the learned counsel for the States of Bihar, Tamil
Nadu, Kerala and other counsel for respondents strongly oppose any such distinction.
It is submitted that once a class is identified as a backward class after
applying the relevant criteria including the economic one, it is not
permissible to apply the economic criteria once again and sub-divide a backward
class into two sub-categories.
Counsel for the State of Tamil Nadu submitted further that at one stage (in
July 1979) the State o f Tamil Nadu did indeed prescribe such an income limit
but had to delete it in view of the practical difficulties encountered and also
in view of the representations received. In this behalf, the learned counsel
invited our attention to Chapter 7-H (pages 60 to 62) of the Ambashankar
Commission (Tamil Nadu Second Backward Classes Commission) Report. According to
the respondents the argument of 'creamy layer' is but a mere ruse, a trick, to
deprive the backward classes of the benefit of reservations. It is submitted
that no member of backward class has come forward with this plea and that it
ill becomes the members of forward classes to raise this point.
Strong reliance is placed upon the observations of Chinnappa Reddy, J in
Vasanth kumar to the following effect (SCC p.763, para 72) " .. .. One
must, however, enter a caveat to the criticism that the benefits of reservation
are often snatched away by the top creamy layer of backward class or caste.
That a few of the seats and posts reserved for backward classes are snatched
away by the more fortunate among them is not to say that reservation is not
necessary. This is bound to happen in a competitive society such as ours. Are
not the unreserved seats and posts snatched away, in the same way, by the top
creamy layer of society itself? Seats reserved for the backward classes are
taken away by the top layers amongst them on the same principle of merit on
which the unreserved seats are taken away by the top layers of society. How can
it be bad if reserved seats and posts are snatched away by the creamy layer of
backward classes, if such snatching away of unreserved posts by the top creamy
layer of society itself is not bad?"
792. In our opinion, it is not a question of permissibility or desirability
of such test but one of proper and more appropriate identification of a class a
The very concept of a class denotes a number of persons having certain
common traits which distinguish them from the others. In a backward class under
clause (4) of Article 16, if the connecting link is the social backwardness, it
should broadly be the same in a given class. If some of the members are far too
advanced socially (which in the context, necessarily means economically and,
may also mean educationally) the connecting thread between them and the
remaining class snaps.
They would be misfits in the class. After excluding them alone, would the
class be a compact class. In fact, such exclusion benefits the truly backward.
Difficulty, however, really lies in drawing the line how and where to draw the
line? For, while drawing the line, it should be ensured that it does not result
in taking away with one hand what is given by the other. The basis of exclusion
should not merely be economic, unless, of course, the economic advancement is
so high that it necessarily means social advancement. Let us illustrate the
point. A member of backward class, say a member of carpenter caste, goes to
Middle East and works there as a carpenter. If you take his annual income in
rupees, it would be fairly high from the Indian standard. Is he to be excluded
from the Backward Class? Are his children in India to be deprived of the
benefit of Article 16(4)? Situation may, however, be different, if he rises so
high economically as to become say a factory owner himself. In such a
situation, his social status also rises. He himself would be in a position to
provide employment to others. In such a case, his income is merely a measure of
his social status. Even otherwise there are several practical difficulties too
in imposing an income ceiling. For example, annual income of Rs.36,000 may not
count for much in a city like Bombay, Delhi or Calcutta whereas it may be a
handsome income in rural India anywhere. The line to be drawn must be a
realistic one. Another question would be, should such a line be uniform for the
entire country or a given State or should it differ from rural to urban areas
and so on. Further, income from agriculture may be difficult to assess and,
therefore, in the case of agriculturists, the line may have to be drawn with
reference to the extent of holding. While the income of a person can be taken
as a measure of his social advancement, the limit to be prescribed should not
be such as to result in taking away with one hand what is given with the other.
The income limit must be such as to mean and signify social advancement. At the
same time, it must be recognised that there are certain positions, the
occupants of which can be treated as socially advanced without any further
enquiry. For example, if a member of a designated backward class becomes a
member of IAS or IPS or any other All India Service, his status is society
(social status) rises; he is no longer socially disadvantaged. His children get
full opportunity to realize their potential. They are in no way handicapped in
the race of life.
793. Keeping in mind all these considerations, we direct the Government of
India to specify the basis of exclusion whether on the basis of income, extent
of holding or otherwise of 'creamy layer'. This shall be done as early as
possible, but not exceeding four months. On such specification persons falling
within the net of exclusionary rule shall cease to be the members of the Other
Backward Classes (covered by the expression 'backward class of citizens') for
the purpose of Article 16(4). The impugned Office Memorandums dated August 13,
1990 and September 25, 1991 shall be implemented subject only to such
specification and exclusion of socially advanced persons from the backward
classes contemplated by the said O.M. In other words, after the expiry of four
months from today, the implementation of the said O.M. shall be subject to the
exclusion of the 'creamy layer' in accordance with the criteria to be specified
by the Government of India and not otherwise".
57. In Indra Sawhney v. Union of India (1996) 6 SCC 506) at page 508) it was
noted as follows :
"3. Thereafter the matter again came up before the Court on 20-3-1995.
Finding that the State of Kerala has not taken any steps, this Court issued
notice to show cause why action should not be taken for non-compliance of this
Court's order. Again the matter came up on 10-7- 1995. Even on that date no
report of compliance was submitted to the Court;
instead an affidavit sworn to by the Chief Secretary to the State was handed
over explaining the circumstances why the implementation of the judgment was
xx xx xx
5. In the circumstances, out of sheer exhaustion and having regard to the
fact that the constitutionality of the Kerala Act 16 of 1995 is pending
disposal before this Court, we have decided to get the information ourselves
regarding "creamy layer" issue through a High Level Committee.
6. Accordingly, we request the learned Chief Justice of the Kerala High
Court to appoint a retired Judge of the High Court to be the Chairman of the
High Level Committee who will induct not more than 4 members from various walks
of life to identify the "creamy layer" among "the designated
other backward classes" in Kerala State in the light of the ruling of this
Court in Mandal case and forward the report to this Court within 3 months from
the date of receipt of this order."
58. In Indra Sawhney No. 2 it was observed as follows:
"7. Our Constitution is wedded to the concept of equality and equality
is a basic feature.
Under Article 15(2), there is a prohibition that the State shall not
discriminate against any citizen on the grounds only of religion, race, caste,
sex and place of birth or any of them. It is equally true that ours is a
caste-ridden society. Still, it is a constitutional mandate not to discriminate
on the basis of caste alone.
Provisions can be made for the upliftment of socially and educationally
backward classes, Scheduled Castes or Scheduled Tribes or for women and
children. Article 16(4) empowers the States for making any provision for
reservation in appointments or posts in favour of any backward class of
citizens which, in the opinion of the State, is not adequately represented in
the services under the State.
Reservation is permissible ( i ) in favour of any backward class of
citizens; and ( ii ) if it is not adequately represented in services under the
8. Caste only cannot be the basis for reservation. Reservation can be for a
backward class citizen of a particular caste. Therefore, from that caste, the
creamy layer and the non- backward class of citizens are to be excluded.
If the caste is to be taken into consideration then for finding out the
socially and economically backward class, the creamy layer of the caste is to
be eliminated for granting benefit of reservation, because that creamy layer
cannot be termed as socially and economically backward. These questions are
exhaustively dealt with by a nine-Judge Bench of this Court in Indra Sawhney v.
Union of India and it has been specially held that "only caste"
cannot be the basis for reservation.
9. Inclusion of castes in the list of backward classes cannot be mechanical
and cannot be done without adequate relevant data. Nor can it be done for
extraneous reasons Likewise, periodic examination of a backward class could
lead to its exclusion if it ceases to be socially backward or if it is
adequately represented in the services. Once backward, always backward is not
acceptable. In any case, the "creamy layer" has no place in the
10. If forward classes are mechanically included in the list of backward
classes or if the creamy layer among backward classes is not excluded, then the
benefits of reservation will not reach the really backward among the backward
classes. Most of the benefits will then be knocked away by the forward castes
and the creamy layer. That will leave the truly backward, backward forever.
xx xx xx
13. In Indra Sawhney on the question of exclusion of the "creamy
layer" from the backward classes, there was agreement among eight out of
the nine learned Judges of this Court. There were five separate judgments in
this behalf which required the "creamy layer"
to be identified and excluded.
xx xx xx
22. As appears from the judgments of six out of the eight Judges, viz.
Jeevan Reddy (for himself and three others), Sawant and Sahai, JJ. (i.e. six
learned Judges out of nine), they specifically refer to those in higher
services like IAS, IPS and All India Services or near about as persons who have
reached a higher level of social advancement and economic status and therefore
as a matter of law, such persons are declared not entitled to be treated as backward.
They are to be treated as creamy layer "without further inquiry".
Likewise, persons living in sufficient affluence who are able to provide
employment to others are to be treated as having reached a higher social status
on account of their affluence, and therefore outside the backward class. Those
holding higher levels of agricultural landholdings or getting income from
property, beyond a limit, have to be excluded from the backward classes. This,
in our opinion, is a judicial " declaration " made by this Court.
Xx xx xx
27. As the "creamy layer" in the backward class is to be treated
"on a par" with the forward classes and is not entitled to benefits
of reservation, it is obvious that if the "creamy layer" is not
excluded, there will be discrimination and violation of Articles 14 and 16(1)
inasmuch as equals (forwards and creamy layer of backward classes) cannot be
treated unequally . Again, non-exclusion of creamy layer will also be violative
of Articles 14, 16(1) and 16(4) of the Constitution of India since unequals
(the creamy layer) cannot be treated as equals , that is to say, equal to the
rest of the backward class. These twin aspects of discrimination are
specifically elucidated in the judgment of Sawant, J. where the learned Judge
stated as follows: (SCC p. 553, para 520) "To continue to confer upon such
advanced sections special benefits, would amount to treating equals unequally.
Secondly, to rank them with the rest of the backward classes would amount to
treating the unequals equally."
Thus, any executive or legislative action refusing to exclude the creamy
layer from the benefits of reservation will be violative of Articles 14 and
16(1) and also of Article 16(4).
We shall examine the validity of Sections 3, 4 and 6 in the light of the
Xx xx xx
64. The Preamble to the Constitution of India emphasises the principle of
equality as basic to our Constitution. In Kesavananda Bharati v.
State of Kerala it was ruled that even constitutional amendments which
offended the basic structure of the Constitution would be ultra vires the basic
structure. Sikri, C.J. laid stress on the basic features enumerated in the
Preamble to the Constitution and said that there were other basic features too
which could be gathered from the constitutional scheme (para 506-A of SCC).
Equality was one of the basic features referred to in the Preamble to our
Constitution. Shelat and Grover, JJ. also referred to the basic rights referred
to in the Preamble. They specifically referred to equality (paras 520 and 535-A
of SCC). Hegde and Shelat, JJ. also referred to the Preamble (paras 648, 652).
Ray, J. (as he then was) also did so (para 886). Jaganmohan Reddy, J. too
referred to the Preamble and the equality doctrine (para 1159). Khanna, J.
accepted this position (para 1471). Mathew, J.
referred to equality as a basic feature (para 1621). Dwivedi, J. (paras
1882, 1883) and Chandrachud, J. (as he then was) (see para 2086) accepted this
65. What we mean to say is that Parliament and the legislature in this country
cannot transgress the basic feature of the Constitution, namely, the principle
of equality enshrined in Article 14 of which Article 16(1) is a facet. Whether
the creamy layer is not excluded or whether forward castes get included in the
list of backward classes , the position will be the same, namely, that there
will be a breach not only of Article 14 but of the basic structure of the
Constitution. The non-exclusion of the creamy layer or the inclusion of forward
castes in the list of backward classes will, therefore, be totally illegal.
Such an illegality offending the root of the Constitution of India cannot be
allowed to be perpetuated even by constitutional amendment. The Kerala
Legislature is, therefore, least competent to perpetuate such an illegal
discrimination. What even Parliament cannot do, the Kerala Legislature cannot
59. Though in M. Nagaraj's case (supra) some observations of general nature
have been made so far as the applicability of the principles to Scheduled
Castes and Scheduled Tribes are concerned, really that case did not concern
with Scheduled Castes and Scheduled Tribes. Similar is the position here. The
focus on the identity test in M. Nagaraj's case (supra) is unexceptionable. At
paras 80 and 110, it was noted as follows:
"80. Before concluding, we may refer to the judgment of this Court in
Badappanavar. In that case the facts were as follows. Appellants were
They contended that when they and the reserved candidates were appointed at
Level-1 and junior reserved candidates got promoted earlier on the basis of
roster- points to Level-2 and again by way of roster-points to Level-3, and
when the senior general candidate got promoted to Level-3, then the general
candidate would become senior to the reserved candidate at Level-3. At Level-3,
the reserved candidate should have been considered along with the senior
general candidate for promotion to Level-4. In support of their contention,
appellants relied upon the judgment of the Constitution Bench in Ajit Singh
(II). The above contentions raised by the appellants were rejected by the
Therefore, the general candidates came to this Court in appeal. This Court
found on facts that the Service Rule concerned did not contemplate computation
of seniority in respect of roster promotions. Placing reliance on the judgment
of this Court in Ajit Singh (I) and in Virpal Singh, this Court held that
roster promotions were meant only for the limited purpose of due representation
of backward classes at various levels of service and, therefore, such roster
promotions did not confer consequential seniority to the roster- point
promotee. In Ajit Singh (II) , the circular which gave seniority to the
roster-point promotees was held to be violative of Articles 14 and 16. It was
further held in M.G.
Badappanavar that equality is the basic feature of the Constitution and any
treatment of equals as unequals or any treatment of unequals as equals violated
the basic structure of the Constitution. For this proposition, this Court
placed reliance on the judgment in Indra Sawhney while holding that if creamy
layer among backward classes were given some benefits as backward classes, it
will amount to equals being treated unequals. Applying the creamy layer test,
this Court held that if roster-point promotees are given consequential
seniority, it will violate the equality principle which is part of the basic
structure of the Constitution and in which event, even Article 16(4A) cannot be
of any help to the reserved category candidates. This is the only judgment of
this Court delivered by three-Judge bench saying that if roster-point promotees
are given the benefit of consequential seniority, it will result in violation
of equality principle which is part of the basic structure of the Constitution.
Accordingly, the judgment of the tribunal was set aside.
xx xx xx 110. As stated above, the boundaries of the width of the power,
namely, the ceiling-limit of 50% (the numerical benchmark), the principle of
creamy layer, the compelling reasons, namely, backwardness, inadequacy of
representation and the overall administrative efficiency are not obliterated by
the impugned amendments. At the appropriate time, we have to consider the law
as enacted by various States providing for reservation if challenged.
At that time we have to see whether limitations on the exercise of power are
violated. The State is free to exercise its discretion of providing for
reservation subject to limitation, namely, that there must exist compelling
reasons of backwardness, inadequacy of representation in a class of post(s)
keeping in mind the overall administrative efficiency. It is made clear that
even if the State has reasons to make reservation, as stated above, if the
impugned law violates any of the above substantive limits on the width of the
power the same would be liable to be set aside."
60. There is an interesting article by an author dealing with Affirmative
Action which reads as follows:
"In his much referred to speech on 26 November 1949, Dr. Ambedkar said
that India was wanting in its recognition of the principle of fraternity. What
does fraternity mean? Fraternity means a sense of common brotherhood of all
Indians - of India being one people. The virtues of liberty by themselves do
not create fraternity. This is why several liberal theorists are unsure about
whether or not state interventions should be allowed for when the issue of
overcoming disprivileges are concerned. The central concern then is how to
inculcate a sense of `common brotherhood' among people with divergent histories
and who occupy vastly different positions in the economic and social structure
of a society.
Before we go further on discussing the specifics of caste and reservations
in India it is worth recording that liberty and equality can sometimes be
contradictorily positioned. This is why it is important for democracy to
redress these community-based grievances within a framework that does not
violate liberal principles. While the individual needs to be protected, there
are individuals in certain groups and communities that need safeguards and
support as well. After all it must be remembered that communities do not create
citizens, but that there are citizens within communities. Also, while it is
rather risky to say that communities have rights, there is no doubt at all that
within liberal democracies, individuals have rights. Indeed, these rights were
secured historically so that individuals did not have to be burdened by
community and ascriptive pressures on them.
The rationale behind affirmative action is that it releases suppressed
talents and expands the pool of social assets in society for the general good.
If today we are looking for a justification for affirmative action in this
fashion, several decades ago it was precisely this enlarging of the social pool
of talents that recommended equal treatment for women. As L.T. Hobhouse argued
then that when women are repressed then there is a loss of all the elements in
the common stock which the free play of the woman's mind would contribute. By
increasing the sum of realized talents in society individuals can actually gain
greater inter-subjectivity in their everyday lives. As the set of resemblances
between them is now so much larger, they can practice, pace Rawls, the moral
precept of participating in one another's fate. In this process, fraternal
values of citizenship gain materiality and fulfilment. It should be recognized
that fraternity can only come about through a basic set of resemblances between
citizens. This conception of resemblances is about citizens being equally able
to avail of institutional facilities that ensure their acquisition of those
skills that are considered to be socially valuable. In other words, social
opportunities exist for individual self-expansion, and it is only individuals
now who can exclude themselves. If grinding poverty comes in the way of
acquiring such socially valuable skills, then those blocks should be met by
developmental interventions such as the anti- poverty programmes. But on no
account should the removal of poverty be made synonymous with reservations.
Reservations are only meant to create a measure of confidence and dignity among
those who didn't dare dream of an alternative life. But that alone cannot
create structural conditions that address the root causes of poverty.
If quality education and the imparting of socially valuable skills are
provided across the board through reservations, then that would take care of
the complaint that affirmative action is largely about the equality of results.
Rawls' principle of justice as fairness only says that offices should be
open to all. But what if people do not qualify for these offices because their
potentialities have remained unrealized on account of inadequate qualifications
arising from a history of discrimination compounded by poverty, or, indeed,
because of sub- standard education? Does it mean that, through positive
discrimination and reservations, they should be given these jobs anyway
regardless of the welfare of institutions? In this connection, Andre Beteille's
warning that affirmative action should be sensitive to institutional well-being
as well needs to be recalled. Beteille sifted between the various imperatives
that different organizations are subsumed under and accordingly advised a careful
calibration of reservations such that these provisions of performance do not
undermine efficiency of performance. The resemblances that are being advocated
in the context of affirmative action should not be interpreted in terms of
homogeneous `sameness'. Sameness is what medieval religious fundamentalists aim
for. On the other hand, the set of resemblances in a constitutional democracy
enhances equality and not sameness by providing identical opportunities to all
for self-expression and development. Citizenship is not about the sameness of
lifestyles or of income. Marshall's notion of citizenship as a status that
tends towards equality should be interpreted in this light. According to
Marshall, the equality that citizenship guarantees should be the foundation on
which other kinds of differences can develop.
It will no doubt be the case that differences will exist even after a
minimum set of resemblances is established. But these will no longer be
outcomes of the accidents of birth. When diversity exists outside of choice
then that is not a state of affairs that a democratic society can rejoice in.
Affirmative action is instrumental in enlarging the scope of difference and
diversity, but it succeeds in doing so by first ensuring that citizens resemble
one another at a very critical level namely in their ability to acquire
socially valuable skills.
Affirmative action gets somewhat complicated in India on account of caste
Undeniably, India is the most stratified society in the world. Over and above
caste differentiations there are huge income disparities, religious and
community differences that are deeply engraved into everyday social relations.
No doubt, the nature of caste and community interactions has changed over time,
but considerations along ascriptive lines still remain important markers, both
at the public and private domains.
Not only are we now confronted by identity assertions of earthy peasant
castes, that were earlier ranked as lowly shudras (or menials), but also, of
those who, till recently, were called 'untouchables'. Now we also know that
none of these castes had ever ideologically accepted their degraded status. Yet
they lived out their humble lives quietly for generations for fear of offending
the privileged strata.
We now know more of their origin tales that boast of the elevated positions
they once held before an unsuspected chicanery, a lost war, or a mercurial god,
demoted them to lowly rungs in popular perceptions. Today these tales are an
important source of symbolic energy for caste mobilizations and identity
assertions. Now that the Mandal recommendations are in place, reservations are
not just for the Scheduled Castes and Tribes, but for the so-called other
Backward Castes as well. While there are a large number of castes listed as
Backward, the demand for reservations for this category has been spearheaded by
the class of owner-cultivators, or peasant proprietors. Before we assess Mandal
reforms it would be useful to know how these peasant castes emerged.
After the zamindari abolition came into effect, adult franchise and
land-to-the-tiller programme together forced the earlier landed castes slowly
to cede ground in the villages.
Soon, however, traditional peasant castes such as the Ahirs, Kurmis, Koeris,
Lodhs, Rajputs and Jats began to dominate the political scape of northern
India. In the southern State of Tamil Nadu, the Vanniyars and Thevars have
become assertive, and in Karnataka control was wrested in the mid-1950s from
the traditional rural elite within the Congress Party by the Vokkaligas and
xx xx xx In pursuance of Article 340 of the Constitution, the Kalelkar
Commission was set up in 1955 but it could not come to any satisfactory
conclusion about who should be legitimately considered as OBCs. The Mandal
Commission came into existence in 1980 and it promptly came up with a long list
of 3,743 backward castes on the basis of social, economic and educational
backwardness. The Mandal Commission's recommendations were implemented in 1990
by the then Prime Minister VP Singh. This meant that a further 29 per cent of
seats in educational institutions and government jobs would now be reserved for
The implementation of reservations for OBCs set off a furore of protests,
including a few suicides, all over the country by those who are considered to
be members of forward castes. Many felt that reservations for OBCs were not
warranted for two reasons. First, this would make India a caste society by law;
and, second, because many of those who are considered as OBCs are really quite
powerful and dominant in rural India. The obvious reference was to Jats and
Yadavs. A majority of social anthropologists wrote against reservations for
OBCs primarily on these grounds. Andre Beteille's criticism of the Mandal
Commission recommendations was widely commented upon. He distinguishes between
reservations for OBCs following Mandal recommendations and the reservations
that were already granted in the Constitution for Scheduled Castes and Tribes.
While provisions for Scheduled Castes and Tribes were with the intention of
reaching towards greater equality, reservations for OBCs were really to bring
about a balance of power on the calculus of caste. The kind of deprivations
that ex-untouchables (Scheduled Castes) and Adivasis (Scheduled Tribes)
encountered for centuries can in no way be compared to the traditional
condition of the OBCs. Besides, many OBCs are quite powerful in rural India,
both economically and politically. In fact, the Mandal Commission
recommendations were actually giving in to a powerful rural lobby that did not
really care for equality of opportunities as much as it did for equality of
xx xx xx There are two considerations that escape many uncritical
applications of affirmative action. First, affirmative action must resist any
tendency whereby its beneficiaries become vested interests. And secondly, it
must eventually seek its own dissolution. While the second may be far away, it
is by paying attention to the first issue that it is possible for affirmative action
to eventually annihilate itself. Paradoxical as it may appear, but when this
happens it is then that positive discrimination has finally triumphed.
Affirmative action fails to reach this final destination when it is
inconsistently applied, or when its beneficiaries form vested interest bloc
within a democratic electoral system on the basis of ascriptive identity alone.
The latter poses a stronger practical and intellectual challenge to the policy
of affirmative action. As long as historical disprivileges and economic
backwardness go together and the relationship between them is statistically
very strong, colour or caste membership can act as ready reckoners for
targeting beneficiaries of affirmative action. This, however, does not mean
that membership in these communities should advantage individuals in perpetuity
once they are able to develop the minimum set of resemblances. Therefore, as
and when those who belong to targeted categories for affirmative action acquire
socially useful talents and attributes, they should contribute them to the
society as a whole, and not employ them only for sectional advantages.
Consequently, those who benefit from this policy owe it to society to put
their newly acquired social talents back into the collective social pool. This
would mean that they would automatically fall outside the scope of affirmative
action programme in the future.
The net would no longer cover them as they already have socially useful
assets. Indeed the society will be richer and better endowed on account of it
as the beneficiaries of affirmative action will now begin to contribute to the
social pool of talents. This would both release and add to social and material
resources required for continuing with the policy aimed at the enhancement of
resemblances. As a result, society will progressively acquire a higher strike
rate with the policy of affirmative action by reaching out to those who have
thus far fallen outside its ambit. By increasing the number of those who
possess the minimum set of resemblances, the society has now a larger wealth of
talents in a variety of fields and specialities than it had before. This is how
affirmative action, which is aimed at the historically most disadvantaged
sections, ultimately improves the lot of everybody in society. If, on the other
hand, either colour or race, which are only ready reckoners, become permanent
considerations, without taking into account biographical profiles of actual and
potential beneficiaries, then that would inhibit fraternity and sow seeds of
permanent divisions in society.
Affirmative action begins by placing the assets of the better off in a
collective pool, not for redistribution, but to create the infrastructure that
is needed to enhance the minimum set of resemblances necessary for substantive
citizenship. With the help of this capital, socially valuable assets are now
created in sites where there were none. This measure has a strong practical
dimension for out of this collective pooling new assets are being created. The
creation of such new assets is possible because the initial pooling of assets
of the privileged section allows the society to underwrite the expenses
incurred for the establishment of certain baseline similarities in society as a
whole. As the most important feature in this case is not one's ascriptive
badge, but the creation of socially valuable assets, it is expected that those
who have been the beneficiaries of the scheme will gradually slip out of the
net. They will cease to receive from the collective pool and instead will begin
to contribute to it. As far as public policy is concerned they are no long
members of certain designated castes or communities. They are now simply
In passing it is worth putting in perspective that the difference between
reservations in India and affirmative action in America is that the former
talks about extirpating caste whereas the latter is interested primarily in
representing races. If the accent is on representation then the ascriptive
factor becomes a permanent badge that can never be overcome. Again, Americans
believe in race representation, not in quotas, and in not sacrificing standards
for social justice. But the great similarity between the two forms of
preferential policy is that in both cases it is the public sector where
positive discrimination is effectively realized. In America, the State
encourages private sector units to employ people of diverse backgrounds without
specifying quotas for different races. If these enterprises can show a fair
racial mix then they can get preferential contracts from the government. The
State cannot force any private sector unit to implement affirmative action. It
is a combination of goodwill and rewards that takes affirmative action forward
in the private sector of America. For example, Bob Jones University does not
receive any public money and, therefore, it refuses to accept affirmative
action, even of the most muted kind. It is only when organizations depend on
state funding, or when they want to be rewarded by the State, that policy of
affirmative action comes to life."
61. It has been rightly observed in Indra Sawhney No. 2 (supra) whether
creamy layer is not excluded or whether forward classes can be excluded in the
list of backward classes, the position would be the same and there will be
breach not only of Article 14 but of the basic structure of the Constitution.
As was rightly observed in the said case, non exclusion of the creamy layer or
inclusion of forward castes in the lists of backward classes will be totally
illegal. The illegality offends the roots and foundation of the Constitution
and cannot be allowed to be perpetuated.
62. In Nair Service Society's case (supra) this Court observed as follows:
"54. This Court, thus, has categorically laid down the law that
determination of creamy layer is a part of the constitutional scheme."
63. In our view, even non exclusion of the creamy layer for the purpose of
admission to the educational institutions cannot be countenanced. It is
inconceivable that a person who belongs to the creamy layer is socially and
educationally backward. The backward status vanishes when somebody becomes part
of the creamy layer.
64. In Vasant Kumar's case (supra) it was aptly described that the benefits
of reservation are snatched away by the top creamy layer of the backward
classes and this has to be avoided at any cost. By inclusion of the creamy
layer or in other words non inclusion thereof a fresh lease of life to those
who should have been left out is given. Their continuance would mean keeping
weakest amongst the weak always weak and leaving the fortunate ones to enjoy
the benefits. If the ultimate aim is a casteless and classless society in line
with the dream of the Constitution framers that has to be chewed out. As Father
of the Nation had once said if the caste system as we know is an anchronism,
then it must go. There is a feeling and it cannot be said without reason that
reservation hits at the root of this belief and instead of its obliteration
there is perceivable perpetuation. It is true that obliteration cannot be done
immediately or within a short span of time but that is no answer to the lack of
seriousness in seeking obliteration.
65. In Indra Sawhney No.1 (supra) the following observations on the question
of giving priority over reservation are of significance. It was held:
"293. Preference without reservation may be adopted in favour of the
chosen classes of citizens by prescribing for them a longer period for passing
a test or by awarding additional marks or granting other advantages like relaxation
of age or other minimum requirements. (See the preferential treatment in State
of Kerala and Anr. v. N.M. Thomas and Ors. (1976) 1 SCR 906). Furthermore, it
would be within the discretion of the State to provide financial assistance to
such persons by way of grant, scholarships, fee concessions etc.
Such preferences or advantages are like temporary crutches for additional
support to enable the members of the backward and other disadvantaged classes
to march forward and compete with the rest of the people. These preferences are
extended to them because of their inability otherwise to compete effectively in
open selections on the basis of merits for appointment to posts in public
services and the like or for selection to academic courses.
Such preferences can be extended to all disadvantaged classes of citizens,
whether or not they are victims of prior discrimination.
What qualifies persons for preference is backwardness or disadvantage of any
kind which the State has a responsibility to ameliorate. The blind and the
deaf, the dumb and the maimed, and other handicapped persons qualify for
preference. So do all other classes of citizens who are at a comparative
disadvantage for whatever reason, and whether or not they are victims of prior
discrimination. All these persons may be beneficiaries of preferences short of
reservation. Any such preference, although discriminatory on its face, may be
justified as a benign classification for affirmative action warranted by a
compelling state interest.
294. In addition to such preferences, quotas may be provided exclusively
reserving posts in public services or seats in academic institutions for
backward people entitled to such protection. Reservation is intended to redress
backwardness of a higher degree.
Reservation prima facie is the very antithesis of a free and open selection.
It is a discriminatory exclusion of the disfavoured classes of meritorious
candidates: M.R. Balaji (supra). It is not a case of merely providing an
advantage or a concession or preference in favour of the backward classes and
other disadvantaged groups. It is not even a handicap to disadvantage the
forward classes so as to attain a measure of qualitative or relative equality
between the two groups.
Reservation which excludes from consideration all those persons falling
outside the specially favoured groups, irrespective of merits and
qualifications, is much more positive and drastic a discrimination - albeit to
achieve the same end of qualitative equality - but unless strictly and narrowly
tailored to a compelling constitutional mandate, it is unlikely to qualify as a
benign discrimination. Unlike in the case of other affirmative action
programmes, backwardness by itself is not sufficient to warrant reservation.
What qualifies for reservation is backwardness which is the result of
identified past discrimination and which is comparable to that of the Scheduled
Castes and the Scheduled Tribes. Reservation is a remedial action specially
addressed to the ill effects stemming from historical discrimination. To ignore
this vital distinction between affirmative action short of reservation and
reservation by a predetermined quota as a remedy for past inequities is to
ignore the special characteristic of the constitutional grant of power
specially addressed to the constitutionally recognised backwardness.
xx xx xx 319. Reservation should be avoided except in extreme cases of acute
backwardness resulting from prior discrimination as in the case of the
Scheduled Castes and the Scheduled Tribes and other classes of persons in
comparable positions. In all other cases, preferential treatment short of
reservation can be adopted.
Any such action, though in some respects discriminatory, is permissible on
the basis of a legitimate classification rationally related to the attainment
of equality in all its aspects.
Xx xx xx 323 (16). In the final analysis, poverty which is the ultimate
result of inequities and which is the immediate cause and effect of
backwardness has to be eradicated not merely by reservation as aforesaid, but
by free medical aid, free elementary education, scholarships for higher
education and other financial support, free housing, self- employment and
settlement schemes, effective implementation of land reforms, strict and
impartial operation of the law-enforcing machinery, industrialization,
construction of roads, bridges, culverts, canals, markets, introduction of
transport, free supply of water, electricity and other ameliorative measures
particularly in areas densely populated by backward classes of citizens.
(underlined for emphasis)
66. Following observations in M.R. Balaji v. State of Mysore (AIR 1963 SC
649) are also relevant:
"In this connection, it is necessary to remember that the reservation
made by the impugned order is in regard to admission in the seats of higher
education in the State. It is well-known that as a result of the awakening
caused by political freedom, all classes of citizens are showing a growing
desire to give their children higher university education and so, the Universities
are called upon to face the challenge of this growing demand. While it is
necessary that the demand for higher education which is thus increasing from
year to year must be adequately met and properly channelised, we cannot
overlook the fact that in meeting that demand standards of higher education in
Universities must not be lowered.
The large demand for education may be met by starting larger number of
educational institutions vocational schools and polytechnics. But it would be
against the national interest to exclude from the portals of our Universities
qualified and competent students on the ground that all the seats in the
Universities are reserved for weaker elements in society. As has been observed
by the University Education Commission, "he indeed must be blind who does
not see that mighty as are the political changes, far deeper are the
fundamental questions which will be decided by what happens in the
(p. 32). Therefore, in considering the question about the propriety of the
reservation made by the impugned order, we cannot lose sight of the fact that
the reservation is made in respect of higher university education. The demand
for technicians, scientists, doctors, economists, engineers and experts for the
further economic advancement of the country is so great that it would cause
grave prejudice to national interests if considerations of merit are completely
excluded by whole-sale reservation of seats in all Technical, Medical or
Engineering colleges or institutions of that kind. Therefore, considerations of
national interest and the interests of the community or society as a whole
cannot be ignored in determining the question as to whether the special
provision contemplated by Art. 15(4) can be special provision which excludes the
rest of the society altogether. In this connection, it would be relevant to
mention that the University Education Commission which considered the problem
of the assistance to backward communities, had observed that the percentage of
reservation shall not exceed a third of the total number of seats, and it has
added that the principle of reservation may be adopted for a period of ten
years. (p. 53).
We have already noticed that the Central Government in its communication to
the State has suggested that reservation for backward classes, Scheduled Castes
and Scheduled Tribes may be up to 25% with marginal adjustments not exceeding
10% in exceptional cases.
The learned Advocate-General has suggested that reservation of a large
number of seats for the weaker sections of the society would not affect either
the depth or efficiency of scholarship at all, and in support of this argument,
he has relied on the observations made by the Backward Classes Commission that
it found no complaint in the States of Madras, Andhra, Travancore-Cochin and
Mysore where the system of recruiting candidates from other Backward Classes to
the reserve quota has been in vogue for several decades. The Committee further
observed that the representatives of the upper classes did not complain about
any lack of efficiency in the offices recruited by reservation (p. 135).
This opinion, however, is plainly inconsistent with what is bound to be the
inevitable consequence of reservation in higher university education. If
admission to professional and technical colleges is unduly liberalised it would
be idle to contend that the quality of our graduates will not suffer. That is
not to say that reservation should not be adopted;
reservation should and must be adopted to advance the prospects of the weaker
sections of society, but in providing for special measures in that behalf care
should be taken not to exclude admission to higher educational centres to
deserving and qualified candidates of other communities. A special provision
contemplated by Art. 15(4) like reservation of posts and appointments
contemplated by Art.
16(4) must be within reasonable limits. The interests of weaker sections of
society which are a first charge on the states and the Centres have to be
adjusted with the interests of the community as a whole. The adjustment of
these competing claims is undoubtedly a difficult matter, but if under the
guise of making a special provision, a State reserves practically all the seats
available in all the colleges, that clearly would be subverting the object of
Art. 15(4). In this matter again, we are reluctant to say definitely what would
be a proper provision to make. Speaking generally and in a broad way, a special
provision should be less than 50%; how much less than 50% would depend upon the
relevant prevailing circumstances in each case. In this particular case it is
remarkable that when the State issued its order on July 10, 1961, it
emphatically expressed its opinion that the reservation of 68% recommended by
the Nagan Gowda Committee would not be in the larger interests of the State.
What happened between July 10, 1961, and July 31, 1962, does not appear on the
record. But the State changed its mind and adopted the recommendation of the
Committee ignoring its earlier decision that the said recommendation was
contrary to the larger interests of the State. In our opinion, when the State
makes a special provision for the advancement of the weaker sections of society
specified in Art. 15(4) it has to approach its task objectively and in a rational
manner. Undoubtedly, it has to take reasonable and even generous steps to help
the advancement of weaker elements; the extent of the problem must be weighted,
the requirements of the community at large must be borne in mind and a formula
must be evolved which would strike a reasonable balance between the several
relevant considerations. Therefore, we are satisfied that the reservation of
68% directed by the impugned order is plainly inconsistent with Art. 15(4).
The petitioners contend that having regard to the infirmities in the
impugned order, action of the State in issuing the said order amounts to a
fraud on the Constitutional power conferred on the State by Art. 15(4).
This argument is well-founded, and must be upheld. When it is said about an
executive action that it is a fraud on the Constitution, it does not
necessarily mean that the action is actuated by mala fides. An executive action
which is patently and plainly outside the limits of the constitutional
authority conferred on the State in that behalf is struck down as being ultra
vires the State's authority. If, on the other hand, the executive action does
not patently or overtly transgress the authority conferred on it by the
Constitution, but the transgression is covert or latent, the said action is
struck down as being a fraud on the relevant constitutional power. It is in
this connection that courts often consider the substance of the matter and not
its form and in ascertaining the substance of the matter, the appearance or the
cloak, or the veil of the executive action is carefully scrutinized and if it
appears that notwithstanding the appearance, the cloak or the veil of the
executive action, in substance and in truth the constitutional power has been
transgressed, the impugned action is struck down as a fraud on the
Constitution. We have already noticed that the impugned order in the present
case has categorised the Backward Classes on the sole basis of caste which, in
our opinion, is not permitted by Art. 15(4); and we have also held that the
reservation of 68% made by the impugned order is plainly inconsistent with the
concept of the special provision authorised by Art. 15(4). Therefore, it
follows that the impugned order is a fraud on the Constitutional power
conferred on the State by Art. 15(4). The learned Advocate-General has made an
earnest and strong plea before us that we should not strike down the order, but
should strike down only such portions of the order which appear to us to be
unconstitutional on the doctrine of severability. He has urged that since 1958,
the State has had to make five orders to deal with the problem of advancing the
lot of the Backward Classes and the State is anxious that the implementation of
the impugned order should not be completely prohibited or stopped. We do not
see how it would be possible to sever the invalid provisions of the impugned
order. If the categorisation of the Backward Classes is invalid, this Court
cannot and would not attempt the task of enumerating the said categories; and
if the percentage of reservation is improper and outside Art. 15(4), this Court
would not attempt to lay down definitely and in an inflexible manner as to what
would be the proper percentage to reserve. In this connection, it may be
relevant to refer to one fact on which the petitioners have strongly relied. It
is urged for them that the method adopted by the Government of Maharashtra in
exercising its power under Art. 15(4) is a proper method to adopt. It appears
that the Maharashtra Government has decided to afford financial assistance, and
make monetary grants to students seeking higher education where it is shown
that the annual income of their families is below a prescribed minimum. The
said scheme is not before us and we are not called upon to express any opinion
on it. However, we may observe that if any State adopts such a measure, it may
afford relief to and assist the advancement of the Backward Classes in the
State, because backwardness, social and educational, is ultimately and
primarily due to poverty. An attempt can also be made to start newer and more
educational institutions, polytechnics, vocational institutions and even rural
Universities and thereby create more opportunities for higher education. This
dual attack on the problem posed by the weakness of backward communities can
claim to proceed on a rational, broad and scientific approach which is
consistent with, and true to, the noble ideal of a secular welfare democratic
State set up by the Constitution of this country. Such an approach can be
supplemented, if necessary by providing special provision by way of reservation
to aid the Backward classes and Scheduled castes and Tribes. It may well be
that there may be other ways and means of achieving the same result. In our
country where social and economic conditions differ from State to State, it
would be idle to expect absolute uniformity of approach; but in taking
executive action to implement the policy of Art.
15(4), it is necessary for the States to remember that the policy which is
intended to be implemented is the policy which has been declared by Art. 46 and
the preamble of the Constitution. It is for the attainment of social and
economic justice Art. 15(4) authorises the making of special provisions for the
advancement of the communities there contemplated even if such provisions may
be inconsistent with the fundamental rights guaranteed under Art. 15 or 29(2).
The context, therefore, requires that the executive action taken by the State
must be based on an objective approach, free from all extraneous pressures. The
said action is intended to do social and economic justice and must be taken in
a manner that justice is and should be done.
Whilst we are dealing with this question, it would be relevant to add to
that the provisions of Art. 15(4) are similar to those of Art. 16(4) which fell
to be considered in the case of The General Manager, Southern Railway v.
Rangachari (1962 (2) SCR 586). In that case, the majority decision of this
Court held that the power of reservation which is conferred on the State under
Art. 16(4) can be exercised by the State in a proper case not only by providing
for reservation of appointments, but also by providing for reservation of
selection posts. This conclusion was reached on the basis that it served to
give effect to the intention of the Constitution makers to make adequate
safeguards for the advancement of Backward Classes and to secure their adequate
representation in the Services. The judgment shows that the only point which
was raised for the decision of this Court in that case was whether the
reservation made was outside Art. 16(4) and that posed the bare question about
the construction of Art. 16(4). The propriety, the reasonableness or the wisdom
of the impugned order was not questioned because it was not the respondent's
case that if the order was justified under Art. 16(4), it was a fraud on the
Constitution. Even so, it was pointed out in the judgment that the efficiency
of administration is of such a paramount importance that it would be unwise and
impermissible to make any reservation at the cost of efficiency of
administration; that, it was stated, was undoubtedly the effect of Art. 335.
Therefore, what is true in regard to Art. 15(4) is equally true in regard to
Art. 16(4). There can be no doubt that the Constitution-makers assumed, as they
were entitled to, that while making adequate reservation under Art. 16(4), care
would be taken not to provide for unreasonable, excessive or extravagant
reservation, for that would, by eliminating general competition in a large
field and by creating wide-spread dissatisfaction amongst the employees,
materially affect efficiency.
Therefore, like the special provision improperly made under Art. 15(4),
reservation made under Art. 16(4) beyond the permissible and legitimate limits
would be liable to be challenged as a fraud on the Constitution. In this
connection it is necessary to emphasize that Art. 15(4) is an enabling
provision; it does not impose an obligation, but merely leaves it to the
discretion of the appropriate government to take suitable action, if
67. To similar effect is the view expressed in K.C. Vasanth Kumar's case
(supra) at para 150:
"At this stage it should be made clear that if on a fresh determination
some castes or communities have to go out of the list of backward classes
prepared for Article 15(4) and Article 16(4) the Government may still pursue
the policy of amelioration of weaker sections of the population amongst them in
accordance with the directive principle contained in article 46 of the Constitution.
There are in all castes and communities poor people who if they are given
adequate opportunity and training may be able to compete successfully with
persons belonging to richer classes. The Government may provide for them
liberal grants of scholarships, free studentship, free boarding and lodging
facilities, free uniforms, free mid day meals etc.
to make the life of poor students comfortable.
The Government may also provide extra tutorial facilities, stationery and
books free of costs and library facilities. These and other steps should be
taken in the lower classes so that by the time a student appears for the
qualifying examination he may be able to attain a high degree of proficiency in
It has also been noted as follows:
"I wish to add that the doctrine of protective discrimination embodied
in Article 15(4) and 16(4) and the mandate of Article 29(2) cannot be stretched
beyond a particular limit. The State exists to serve its people. There are some
services where expertise and skill are of the essence. For example, a hospital
run by the State serves the ailing members of the public who need medical aid.
Medical services directly affect and deal with the health and life of the
populace. Profession expertise, born of knowledge and experience, of a high
degree of technical knowledge and operation skill is required of pilots and
aviation engineers. The lives of citizens depend on such persons.
There are other similar fields of governmental activity where professional,
technological, scientific or other special skill is called for. In such
services or posts under the Union or State, we think where can be no room for
reservation of posts; merit alone must be the sole and decisive consideration
(underlined for emphasis)
68. Lengthy arguments have been advanced as to the seriousness in
identifying the backward classes. On the basis of Indra Sawhney No.1's
judgment, the Government of India issued orders in respect of reservations of
appointments or on posts under the Government of India in favour of backward
classes of citizens. It was the subject matter of challenge in Indra Sawhney
No.1. In its judgment dated 16.11.1992 this Court directed the Government to
constitute a permanent body by 15.3.1993 for entertaining and examining and
recommending upon requests made for inclusion or complaints of over inclusion
and under inclusion in the lists of backward classes of citizens.
69. Constituent Assembly Debates 1951 have also relevance for adjudicating
the controversy. The following portion needs to be extracted:
70. Parliamentary Standing Committee Report at paras 36, 37 and 46 read as
"36. The committee notes that there is a major limitation on data about
the social economic and educational profile of our population in general and
about OBCs in particular. The last caste-based census in India was done in
1931. Accordingly there are no periodic data available on the demographic
spread of OBCs and their access to amenities. Even the Mandal Commission had
used the 1931 Census data. Whatever limited data are available, pertain to
surveys conducted by NSSO from 1998-99 onwards, which are only 'sample
37. The Committee found that there exists no accepted mechanism/criteria to
group the people into different categories. As a result, existing list of
backward castes/communities are termed in some cases, as inaccurate.
Besides, any regular process of review is also not in place. Such a review
implies both 'inclusion' and 'exclusion'. The Committee, therefore, emphasizes
the need for taking urgent measures/steps for identifying and removing all such
lacunae and removing all such lacunae and problems by putting in place
scientific and objective mechanism/benchmarks for this purpose.
xx xx xx
46. There have been suggestions/counter- suggestions on the issue of
exclusion of the 'creamy layer amongst OBCs in the proposed legislation. On the
one hand, it was argued that the concept of creamy layer did not apply in the
case of reservation in admission. It was pointed out that the debate on the
exclusion of the creamy layer was misplaced as the Supreme Court's observation
regarding the exclusion of the creamy layer within the SCs and STs from the
purview of reservation was only for public employment and promotion.
The other view in this regard was that the inclusion of the creamy layer in
reservation would defeat the very purpose of providing reservation to the
backward classes. It was also stated that the exclusion of the creamy layer
would ensure that the intended benefits of the reservation reach to the really
deserving among the backward classes. It was further stated that this in itself
would not suffice and should be supplemented by categorization of the backward
classes in various groups depending upon their degree of backwardness and
apportioning of appropriate percentage of reservation to each group. It was
also brought to the committee that similar experiments in States of Andhra
Pradesh, Kerala, Karnataka, Tamil Nadu, Maharashtra etc. have, in fact, stood
the test of time and yielded the desired results."
71. One of the petitioners "Youth for Equality" had filed a
representation before the Parliamentary Committee giving certain important
data. Relevant portions read as follows:
"TOP WITHOUT BASE
The condition of infrastructure and staff at the primary and secondary level is
of some concern and the government - especially the Ministry for Human Resource
and Development which has proposed increased reservations, should work towards
improvement in this area for "Real" affirmative action. According to
the National Institute of Educational Planning and Administration (in 2003) the
state of affairs at the primary level was as under:- (i) In 62 996 schools in
country do not have school building and are operating in tents or under the trees.
(ii) In 70,739 Primary Schools - No class room.
(iii) In 95,003 primary Schools - Single Class room.
(iv) In 8,269 Primary Schools No teacher (v) In 1,15,267 Primary schools
-Single teacher (vi) In more than 60,000 schools the pupil :
Teacher ratio is greater than 100 :1 while the acceptable ratio is less than
(vii) In 84,848 schools No black board (viii) In More than 1 00 000 Schools
- No electricity.
Apart from the above, according to the NCERT (In 1998), Only 34.6% of Govt.
Schools had safe Drinking water, 13.2% had urinal and 4.9% had urinals for
girls and only 6.0% had a lavatory. While the government promises a spending of
about 6% of GDP for the development of education, the reality has been to the
contrary. The Government spending in the years was as under:
2000-2001 4.1% 2001-2002 4.3% 2002-2004 3.8% 2004-2005 3.5%
72. The National Commission for Backward Classes Act, 1993 (in short
'Backward Classes Act') was accordingly enacted. Few provisions of this Act
need to be noted.
73. Section 2 (c) defines lists as follows:
"Lists means lists prepared by the Government of India from time to
time for purposes of making provisions for the reservation of appointments or
posts in favour of backward classes of citizens which, in the opinion of that
Government, are not adequately represented in the services under the Government
of India and any local or other authority within the territory of India or
under the control of the Government of India".
74. Important provisions are Sections 9 and 10 which read as follows:
"9. Functions of the Commission (1) The Commission shall examine
requests for inclusion of any class of citizens as a backward class in such
lists and hear complaints of over-inclusion or under inclusion of any backward
class in such lists and tender such advice to the Central Government as it
(2) The advice of the Commission shall ordinarily be binding upon the
10. Powers of the Commission- The Commission shall, while performing its
functions under sub-section (1) of Section 9, have all the powers of a civil
court trying a suit and in particular, in respect of the following matters,
namely:- (a) summoning and enforcing the attendance of any person from any part
of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court of
(e) issuing commissions for the examination of witnesses and documents;
and (f) any other matter which may be prescribed."
75. A periodic revision of the lists by the Central Government is a
statutory mandate. Petitioners have highlighted that there is no exclusion and
on the other hand there has been inclusion. On the question of castes
enumeration it is emphasized that 1931 Census was not the basis for
identification of other backward classes. In fact the central OBC List is not
drawn up on the basis of 1931 Census. Each State has different modalities for
identification. Only for the purpose of quantum the population provides a
76. It needs no emphasis that if ultimately and indisputably the
constitutional goal is the casteless and classless society, there has to be
more effective implementation of the Backward Classes Act. The exercise
required to be undertaken under Section 11 of the said Act is not intended to
be a routine exercise and also not an exercise in futility. It has to be not
only effective but also result oriented. The petitioners have highlighted the
lack of seriousness of the Government in carrying out the exercise. Voluminous
datas have been brought on record in this regard. With reference to the reports
of the Commission, learned counsel for the respondents on the other hand have
stressed on the fact that the Commission has been working with all sincerity
and with the object of effectively implementing the Backward Classes Act. One
thing needs to be noted here. Concrete data about the number of backward
classes in the country does not appear to be available. The survey conducted by
the National Sample Survey reveals that the percentage is not 52% as is
highlighted by the respondents.
77. Section 2(g) of the Act is relevant in this regard. It reads as follows:
"Other Backward Classes" means the class or classes of citizens
who are socially and educationally backward, and are so determined by the
78. At this juncture, it is to be noted that the Backward Classes Act in
order to be wholly functional mandates determination by the Central Government
of the backward classes for whom the Statute is intended. Undisputedly, such
determination has not been done. The plea is that for more than half a century
enough attention has not been given for the benefit of the other backward
classes in the matter of admissions to higher educational institutions. That
cannot be a ground to act with hurry and with un-determined datas. It may be as
rightly contended by learned counsel for the respondents that the percentage
can certainly be not less than 27%. But that is no answer to the important
question as to the identity test. In the background loom the socially and
economically backward class of citizens. Poverty knows no caste. Poor has no
caste. It is an unfortunate class. It is a matter of common knowledge that the
institution of caste is a peculiarity of Indian institution when there is
considerable controversy amongst the scholars as to how the caste system
originated in this country. Originally, there were four main castes known as
Varnas . But gradually castes and sub-castes multiplied as the social fabric
expanded with the absorption of different groups of people who belong to
various cults and professing different religious faiths. The caste system in
its earlier stage was quite elastic but in course of time it gradually hardened
into a rigid framework based upon heredity. The inevitable result was social
inequality. At some point of time occupation was the background for
determination of castes.
May be, at some point of time it depended on the income of the individual.
But it appears to have taken disastrous turn with difference of status of
various castes. But passage of time shows that the occupational label has lost
much of its significance. But at the same time, the poor and down trodden who
belong to the caste of their own were the founders of poor. In Indra Sawhney
No.1 this factor was noticed.
79. It is said that one must take life in ones stride, let today embrace the
past with remembrance and the future with longing.
80. Don't look for the path far away, the path exists under your feet.
81. What is past and what cannot be prevented should not be grieved for.
82. With reference to the Office Memorandum which provides for preference in
favour of "poorer sections" over other members of the backward classes,
the expression was held to be relatable to those who are socially and
economically more backward. The use of the word 'poorer' in the context was
held to be a measure of the social backwardness. It is therefore unmistakenly
recognized that economic backwardness is a factor which can never be lost sight
of. There are only two families in the world; the haves and the have nots said
Miquel De Cervantes Don Qutxote de ta Mancha. Tolstoy has emphatically said
"We will do anything for the poor man anything but get of his back"
(quoted in Huntington Philanthrophy and Morality).
83. William Cobbett had said "to be poor and independent is very nearly
an impossibility. (See His book 'Advise to Young Men'). We cannot turn Nelson's
eye to the poor, those covered by all encompassing expression
"economically backward classes".
84. Should this class of people be kept out of the mainstream of
governmental priorities and policies because they belong to a particular caste?
As noted above, the poor have no caste. A person belonging to a higher caste
should not be made to suffer for what his forefathers had done several
85. Franklin D Roosevelt in a speech in 1940 had said "It is an
unfortunate human failing that a full pocket book often groans more loudly than
an empty stomach". The haves and the have nots have to co-exist. If the
creamy layer has to be excluded the economically backward classes have to be
included. That would be social balancing and that would be giving true meaning
of the objectives of the Constitution.
Social empowerment cannot be and is certainly not a measure for only
socially and educationally backward classes. It also has to be for the socially
and economically backward classes.
Unless this balance, which is very delicate, is maintained the system
inevitably will develop a crack and this crack may after a certain point of
time be difficult to be joined. Instead of lightening the society from castes
or classes it will be over burdened and a point of time may come when we shall
not be able to bear the burden any further. Timely steps in this regard will
save the Indian society and democracy from a catastrophe of collapse because of
something which the Constitution wants to obliterate.
86. On the question of time period for the reservation, it is submitted that
length of the leap to be provided depends upon the gap to be filled. It is
fairly accepted by learned counsel for the respondents that as and when castes
reach a higher level it is to be excluded from the zone of consideration.
It is further submitted that traditional occupation is being pursued by
persons belonging to some castes and the system still subsists and has not
broken down. In the absence of alternative occupation which may not be
lucrative, the persons who used to previously carry on the traditional
occupation find it difficult to take up any other occupation.
87. It has been averred that consequent to several efforts, India has made
enormous progress in terms of increase in institutions, teachers and students
in elementary education.
But despite all the efforts large population of the children in the country
still remain out of school.
88. One of the contentions is that by passage of time prolonged reservation
becomes illicit. In Motor General Traders and Anr. v. State of Andhra Pradesh
and Ors. (1984 (1) SCC 222) following observations were made:
"16. What may be unobjectionable as a transitional or temporary measure
at an initial stage can still become discriminatory and hence violative of
Article 14 of the Constitution if it is persisted in over a long period without
any justification. The trend of decisions of this Court on the above question
may be traced thus. In Bhaiyalal Shukla v. State of Madhya Pradesh  Supp.
2 S.C.R. 257 one of the contentions urged was that the levy of sales tax in the
area which was formerly known as Vindhya Pradesh (a Part 'C' State) on building
materials used in a works contract was discriminatory after the merger of that
area in the new State of Madhya Pradesh which was formed on November 1,1956
under the States
Act, 1956 as the sale of building materials in a works contract was not
subject to any levy of sales tax in another part of the same new State namely
the area which was formerly part of the area known as State of Madhya Pradesh
(the Central Provinces and Berar area). That contention was rejected by this
Court with the following observations at pages 274-275 :
The laws in different portions of the new State of Madhya Pradesh were
enacted by different Legislatures, and under Section 119 of the States
Reorganisation Act all laws
inforce are to continue until repealed or altered by the appropriate
Legislature. We have already held that the sales tax law in Vindhya Pradesh was
validly enacted, and it brought its validity with it under Section 119 of the States
Reorganisation Act, when it became a part of the State of Madhya Pradesh.
Thereafter, the different laws in different parts of Madhya Pradesh can be
sustained on the ground that the differentiation arises from historical
reasons, and a geographical classification based on historical reasons has been
upheld by this Court in M.K. Prithi Rajji v. The State of Rajasthan (Civil Appeal
No. 327 of 1956 decided on November 2, 1960) and again in The State of Madhya
The Gwalior Sugar Co. Ltd. (Civil Appeals Nos. 98 and 99 of 1957 decided on
November 30, 1960). The latter case is important, because the sugarcane cess
levied in the former Gwalior State but not in the rest of Madhya Bharat of
which it formed a part, was challenged on the same ground as here, but was
upheld as not affected by Article14. We, therefore, reject this argument.
89. In N.M. Thomas's case (supra) the parameters of various clauses of
Article 16 were highlighted as follows:
"37. The rule of equality within Articles 14 and 16(1) will not be
violated by a rule which will ensure equality of representation in the services
for unrepresented classes after satisfying the basic needs of efficiency of
administration. Article 16(2) rules out some basis of classification including
race, caste, descent, place of birth etc. Article 16(4) clarifies and explains
that classification on the basis of backwardness does not fall within Article
16(2) and is legitimate for the purposes of Article 16(1). If preference shall
be given to a particular under-represented community other than a backward
class or under- represented State in an All India Service such a rule will
contravene Article 16(2). A similar rule giving preference to an
under-represented backward community is valid and will not contravene Articles
14, 16(1) and 16(2). Article 16(4) removes any doubt in this respect.
xx xx xx
44. Our Constitution aims at equality of status and opportunity for all
citizens including those who are socially, economically and educationally
backward. The claims of members of backward classes require adequate
representation in legislative and executive bodies. If members of Scheduled
Castes and Tribes, who are said by this Court to be backward classes, can
maintain minimum necessary requirement of administrative efficiency, not only
representation but also preference may be given to them to enforce equality and
to eliminate inequality. Articles 15(4) and 16(4) bring out the position of
backward classes to merit equality. Special provisions are made for the
advancement of backward classes and reservations of appointments and posts for
them to secure adequate representation. These provisions will bring out the
content of equality guaranteed by Articles 14, 15(1) and 16(1). The basic
concept of equality is equality of opportunity for appointment. Preferential
treatment for members of backward classes with due regard to administrative
efficiency alone can mean equality of opportunity for all citizens. Equality
under Article 16 could not have a different content from equality under Article
14. Equality of opportunity for unequals can only mean aggravation of
inequality. Equality of opportunity admits discrimination with reason and
prohibits discrimination without reason. Discrimination with reasons means
rational classification for differential treatment having nexus to the
Constitutionally permissible object.
Preferential representation for the backward classes in services with due
regard to administrative efficiency is permissible object and backward classes
are a rational classification recognised by our Constitution.
Therefore, differential treatment in standards of selection is within the
concept of equality.
xx xx xx
56. If we are all to be treated in the same manner, this must carry with it
the important requirement that none of us should be better or worse in
upbringing, education, than any one else which is an unattainable ideal for
human beings of anything like the sort we now see. Some people maintain that
the concept of equality of opportunity is an unsatisfactory concept For, a
complete formulation of it renders it incompatible with any form of human
society. Take for instance, the case of equality of opportunity for education.
This equality cannot start in schools and hence requires uniform treatment in
families which is an evident impossibility. To remedy this, all children might
be brought up in state nurseries, but, to achieve the purpose, the nurseries
would have to be run on vigorously uniform lines. Could we guarantee equality
of opportunity to the young even in those circumstances? The idea is well
expressed by Laski:
'Equality means, in the second place, that adequate opportunities are laid
open to all. By adequate opportunities we cannot imply equal opportunities in a
sense that implies identity of original chance. The native endowments of men
are by no means equal. Children who are brought up in an atmosphere where
things of the mind are accounted highly are bound to start the race of life
with advantages no legislation can secure. Parental character will inevitably
affect profoundly the equality of the children whom it touches.
So long, therefore, as the family endures - and there seems little reason to
anticipate or to desire its disappearance - the varying environments it will
create make the notion of equal opportunities a fantastic one'.
xx xx xx
60. Bernard A.O. Williams, in his article 'The Idea of Equality"
(supra) gives an illustration of the working of the principle of equality of
'Suppose that in a certain society great prestige is attached to membership
of a warrior class, the duties of which require great physical strength. This
class has in the past been recruited from certain wealthy families only, but
egalitarian reformers achieve a change in the rules, by which warriors are
recruited from all sections of the society, on the result of a suitable
competition. The effect of this, however, is that the wealthy families still
provide virtually all the warriors, because the rest of the populace is so
undernourished by reason of poverty that their physical strength is inferior to
that of the wealthy and well nourished. The reformers protest that equality of
opportunity has not really been achieved;
the wealthy reply that in fact it has, and that the poor now have the
opportunity of becoming warriors - it is just bad luck that their
characteristics are such that they do not pass the test- "We are
not", they might say, "excluding anyone for being poor; we exclude
people for being weak, and it is unfortunate that those who are poor are also
xx xx xx
67. Today, the political theory which acknowledges the obligation of
government under Part IV of the Constitution to provide jobs, medical care, old
age pension, etc., extends to human rights and imposes an affirmative
obligation to promote equality and liberty. The force of the idea of a state
with obligation to help the weaker sections of its members seems to have increasing
influence in Constitutional law. The idea finds expression in a number of cases
in America involving social discrimination and also in the decisions requiring
the state to offset the effects of poverty by providing counsel, transcript of
appeal, expert witnesses, etc. Today, the sense that government has affirmative
responsibility for elimination of inequalities, social, economic or otherwise,
is one of the dominant forces in Constitutional law. While special concessions
for the under-privileged have been easily permitted, they have not
traditionally been required. Decisions in the areas of criminal procedure,
voting rights and education in America suggest that the traditional approach
may not be completely adequate. In these areas, the inquiry whether equality
has been achieved no longer ends with numerical equality; rather the equality
clause has been held to require resort to a standard of proportional equality
which requires the state, in framing legislation, to take into account the
private inequalities of wealth, of education and other circumstances.
xx xx xx
89. The ultimate reason for the demand of equality for the members of
backward classes is a moral perspective which affirms the intrinsic value of
all human beings and calls for a society which provides these conditions of
life which men need for development of their varying capacities. It is an
assertion of human equality in the sense that it manifests an equal concern for
the well being of all men. On the one hand it involves a demand for the removal
of those obstacles and impediments which stand in the way of the development of
human capacities, that is, it is a call for the abolition of unjustifiable
inequalities. On the other hand, the demand itself gets its sense and moral
driving force from the recognition that "the poorest he that is in England
hath a life to live, as the greatest he".
90. `Equality' and `excellence' are two conflicting claims difficult to be
reconciled. The Constitution, in order to ensure true equality provides for special
treatment to socially and educationally backward classes of citizens which is
obviously desirable for providing social justice, though at the cost of merit.
However, the Constitution does not provide at all for 'institutional
reservation.' Therefore, it's constitutionality is to be judged on the
touchstone of Article 14. A large number of cases cropped up in this area
concerning the institutional preference for admission into postgraduate medical
education and super specialties. The judiciary came forward and laid down
detailed principles covering the need of such preference and to limit the
extent of such reservation in view of the importance of merit in the context of
national interest and international importance of universal excellence in super
91. It is to be noted that the foundation for fixing 27% appears to be the
view that 52% of the population belong to OBC. There is no supportable data for
this proposition. In fact, different Commissions at different points of time
have different figures. It is the stand of the respondents that no Commission
has fixed the percentage below 52% and, therefore, there is nothing wrong in
fixing the percentage at 27%. This is not the correct approach. It may be that
in no case the percentage of persons belonging to OBC is less than 27% but
supposing in a given case considering the fact that the actual percentage is
40% a figure less than 27% should have been fixed. The Commission set out
pursuant to the directions of this Court seems to have somewhat acted on the
petitions filed by the people claiming exclusion or inclusion. That was not the
real purpose of this Court's decision to direct appointment of Commission. The
very purpose was to identify the classes.
This was the exercise which was to be undertaken apart from considering the
applications for inclusion or exclusion as the case may be. As has been
conceded at the beginning of the case affirmative action is not under
challenge. Affirmative action is nothing but a crucial component of social
justice in the constitutional dispensation but at the same time it has to be
kept in view that the same does not infringe the principles of equality of
which it is a part and/or unreasonably restraint or restrict other fundamental
freedoms and that it does not violate the basic structure of the Constitution.
92. It needs no emphasis that Articles 15(4), 15(5) and 16(4) have to comply
with the requirements of Article 14 and the discipline imposed in several other
provisions like Articles 15(4)(a) and 15(4)(b), though, they form a part of the
equality concept, each of which is so found in our Constitution.
93. It is a well settled principle in law that the Court cannot read
anything into a statutory provision which is plain and unambiguous. A statute
is an edict of the Legislature. The language employed in a statute is the
determinative factor of legislative intent.
94. Words and phrases are symbols that stimulate mental references to
referents. The object of interpreting a statute is to ascertain the intention
of the Legislature enacting it. (See Institute of Chartered Accountants of
India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74). The intention of the
Legislature is primarily to be gathered from the language used, which means
that attention should be paid to what has been said as also to what has not
been said. As a consequence, a construction which requires for its support,
addition or substitution of words or which results in rejection of words as
meaningless has to be avoided. As observed in Crawford v.
Spooner (1846 (6) Moore PC 1 ), Courts, cannot aid the Legislatures'
defective phrasing of an Act, we cannot add or mend, and by construction make
up deficiencies which are left there. (See The State of Gujarat and Ors. v.
Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253). It is contrary to all
rules of construction to read words into an Act unless it is absolutely
necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948
(HL). Rules of interpretation do not permit Courts to do so, unless the
provision as it stands is meaningless or of doubtful meaning. Courts are not
entitled to read words into an Act of Parliament unless clear reason for it is
to be found within the four corners of the Act itself. (Per Lord Loreburn L.C.
in Vickers Sons and Maxim Ltd.
v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v.
Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).
95. The question is not what may be supposed and has been intended but what
has been said. "Statutes should be construed not as theorems of
Euclid". Judge Learned Hand said, "but words must be construed with
some imagination of the purposes which lie behind them". (See Lenigh
Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of
India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).
96. In D.R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and
Ors. etc. (AIR 1977 SC 842), it was observed that Courts must avoid the danger
of a priori determination of the meaning of a provision based on their own
pre-conceived notions of ideological structure or scheme into which the
provision to be interpreted is somewhat fitted.
They are not entitled to usurp legislative function under the disguise of
97. While interpreting a provision the Court only interprets the law and
cannot legislate it. If a provision of law is misused and subjected to the
abuse of process of law, it is for the legislature to amend, modify or repeal
it, if deemed necessary.
(See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain
(2000 (5) SCC 511). The legislative casus omissus cannot be supplied by
judicial interpretative process.
98. Two principles of construction one relating to casus omissus and the
other in regard to reading the statute as a whole appear to be well settled.
Under the first principle a casus omissus cannot be supplied by the Court
except in the case of clear necessity and when reason for it is found in the
four corners of the statute itself but at the same time a casus omissus should
not be readily inferred and for that purpose all the parts of a statute or
section must be construed together and every clause of a section should be
construed with reference to the context and other clauses thereof so that the construction
to be put on a particular provision makes a consistent enactment of the whole
statute. This would be more so if literal construction of a particular clause
leads to manifestly absurd or anomalous results which could not have been
intended by the Legislature. "An intention to produce an unreasonable
result", said Danackwerts, L.J. in Artemiou v.
Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there
is some other construction available". Where to apply words literally
would "defeat the obvious intention of the legislature and produce a
wholly unreasonable result" we must "do some violence to the
words" and so achieve that obvious intention and produce a rational
construction. (Per Lord Reid in Luke v. IRC (1963 AC 557) where at p. 577 he
also observed: "this is not a new problem, though our standard of drafting
is such that it rarely emerges".
99. It is then true that, "when the words of a law extend not to an
inconvenience rarely happening, but due to those which often happen, it is good
reason not to strain the words further than they reach, by saying it is casus
omissus, and that the law intended quae frequentius accidunt."
"But," on the other hand, "it is no reason, when the words of a
law do enough extend to an inconvenience seldom happening, that they should not
extend to it as well as if it happened more frequently, because it happens but
seldom" (See Fenton v.
Hampton (1858) XI Moore, P.C. 347). A casus omissus ought not to be created
by interpretation, save in some case of strong necessity. Where, however, a
casus omissus does really occur, either through the inadvertence of the
legislature, or on the principle quod semel aut bis existit praeterunt
legislatores (legislators says pass over that which happens only once or twice),
the rule is that the particular case, thus left unprovided for, must be
disposed of according to the law as it existed before such statute - Casus
omissus et oblivioni datus dispositioni communis juris relinquitur; "a
observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be
supplied by a court of law, for that would be to make laws."
100. The golden rule for construing wills, statutes, and, in fact, all
written instruments has been thus stated: "The grammatical and ordinary
sense of the words is to be adhered to unless that would lead to some absurdity
or some repugnance or inconsistency with the rest of the instrument, in which
case the grammatical and ordinary sense of the words may be modified, so as to
avoid that absurdity and inconsistency, but no further" (See Grey v.
Pearson (1857 (6) H.L. Cas. 61). The latter part of this "golden
rule" must, however, be applied with much caution. "if,"
remarked Jervis, C.J., "the precise words used are plain and unambiguous
in our judgment, we are bound to construe them in their ordinary sense, even
though it lead, in our view of the case, to an absurdity or manifest injustice.
Words may be modified or varied where their import is doubtful or obscure. But
we assume the functions of legislators when we depart from the ordinary meaning
of the precise words used, merely because we see, or fancy we see, an absurdity
or manifest injustice from an adherence to their literal meaning" (See
Abley v. Dale 11, C.B. 378).
101. Classifications on the basis of castes in the long run has tendency of
inherently becoming pernicious. Therefore, the test of reasonableness has to
apply. When the object is elimination of castes and not perpetuation to achieve
the goal of casteless society and a society free from discrimination of castes
judicial review within the permissible limits is not ruled out. But at the same
time compelling State interest can be considered while assessing backwardness.
The impact of poverty on backwardness cannot be lost sight of. Economic
liberation and freedom are also important. In Nagaraj's case (supra) it was
inter alia observed as follows:
"44. The above three concepts are independent variable concepts. The
application of these concepts in public employment depends upon quantifiable data
in each case.
Equality in law is different from equality in fact. When we construe Article
16(4), it is equality in fact which plays the dominant role.
Backward Classes seek justice. General class in public employment seeks
equity. The difficulty comes in when the third variable comes in, namely,
efficiency in service. In the issue of reservation, we are being asked to find
a stable equilibrium between justice to the backwards, equity for the forwards
and efficiency for the entire system. Equity and justice in the above context
are hard concepts.
However, if you add efficiency to equity and justice, the problem arises in
the context of the reservation. This problem has to be examined, therefore, on
the facts of each case. Therefore, Article 16(4) has to be construed in the
light of Article 335 of the Constitution. Inadequacy in representation and
backwardness of the Scheduled Castes and Scheduled Tribes are circumstances
which enable the State Government to act under Article 16(4) of the
Constitution. However, as held by this Court the limitations on the discretion
of the Government in the matter of reservation under Article 16(4) as well as
Article 16(4-A) come in the form of Article 335 of the Constitution.
xx xx xx
46. The point which we are emphasising is that ultimately the present
controversy is regarding the exercise of the power by the State Government
depending upon the fact situation in each case. Therefore, "vesting of the
power" by an enabling provision may be constitutionally valid and yet
"exercise of the power" by the State in a given case may be
arbitrary, particularly, if the State fails to identify and measure
backwardness and inadequacy keeping in mind the efficiency of service as
required under Article 335.
xx xx xx
48. It is the equality "in fact" which has to be decided looking
at the ground reality.
Balancing comes in where the question concerns the extent of reservation. If
the extent of reservation goes beyond cut-off point then it results in reverse
discrimination. Anti- discrimination legislation has a tendency of pushing
towards de facto reservation.
Therefore, a numerical benchmark is the surest immunity against charges of
49. Reservation is necessary for transcending caste and not for perpetuating
it. Reservation has to be used in a limited sense otherwise it will perpetuate
casteism in the country.
Reservation is underwritten by a special justification. Equality in Article
16(1) is individual-specific whereas reservation in Article 16(4) and Article
16(4-A) is enabling.
The discretion of the State is, however, subject to the existence of
"backwardness" and "inadequacy of representation" in public
employment. Backwardness has to be based on objective factors whereas
inadequacy has to factually exist. This is where judicial review comes in.
However, whether reservation in a given case is desirable or not, as a policy,
is not for us to decide as long as the parameters mentioned in Articles 16(4)
and 16(4-A) are maintained. As stated above, equity, justice and merit (Article
335)/efficiency are variables which can only be identified and measured by the
State. Therefore, in each case, a contextual case has to be made out depending
upon different circumstances which may exist State- wise.
xx xx xx 102. In the matter of application of the principle of basic
structure, twin tests have to be satisfied, namely, the "width test"
and the test of "identity". As stated hereinabove, the concept of the
"catch-up" rule and "consequential seniority" are not
constitutional requirements. They are not implicit in clauses (1) and (4) of
Article 16. They are not constitutional limitations. They are concepts derived
from service jurisprudence. They are not constitutional principles. They are
not axioms like, secularism, federalism, etc.
Obliteration of these concepts or insertion of these concepts does not
change the equality code indicated by Articles 14, 15 and 16 of the
Constitution. Clause (1) of Article 16 cannot prevent the State from taking
cognizance of the compelling interests of Backward Classes in the society.
Clauses (1) and (4) of Article 16 are restatements of the principle of equality
under Article 14. Clause (4) of Article 16 refers to affirmative action by way
Clause (4) of Article 16, however, states that the appropriate Government is
free to provide for reservation in cases where it is satisfied on the basis of
quantifiable data that Backward Class is inadequately represented in the
services. Therefore, in every case where the State decides to provide for reservation
there must exist two circumstances, namely, "backwardness" and
"inadequacy of representation". As stated above, equity, justice and
efficiency are variable factors.
These factors are context-specific. There is no fixed yardstick to identify
and measure these three factors, it will depend on the facts and circumstances
of each case. These are the limitations on the mode of the exercise of power by
the State. None of these limitations have been removed by the impugned
amendments. If the State concerned fails to identify and measure backwardness,
inadequacy and overall administrative efficiency then in that event the
provision for reservation would be invalid. These amendments do not alter the
structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in
Article 16(4) are retained. Clause (4-A) is derived from clause (4) of Article
16. Clause (4-A) is confined to SCs and STs alone. Therefore, the present case
does not change the identity of the Constitution. The word "amendment"
connotes change. The question iswhether the impugned amendments discard the
original Constitution. It was vehemently urged on behalf of the petitioners
that the Statement of Objects and Reasons indicates that the impugned
amendments have been promulgated by Parliament to overrule the decisions of
this Court. We do not find any merit in this argument. Under Article 141 of the
Constitution the pronouncement of this Court is the law of the land. The
judgments of this Court in Virpal Singh, Ajit Singh (I), Ajit Singh (II) and
Indra Sawhney were judgments delivered by this Court which enunciated the law
of the land. It is that law which is sought to be changed by the impugned
constitutional amendments. The impugned constitutional amendments are enabling
in nature. They leave it to the States to provide for reservation.
It is well settled that Parliament while enacting a law does not provide
content to the "right".
The content is provided by the judgments of the Supreme Court. If the
appropriate Government enacts a law providing for reservation without keeping
in mind the parameters in Article 16(4) and Article 335 then this Court will
certainly set aside and strike down such legislation. Applying the "width
test", we do not find obliteration of any of the constitutional limitations.
Applying the test of "identity", we do not find any alteration in the
existing structure of the equality code.
As stated above, none of the axioms like secularism, federalism, etc. which
are overarching principles have been violated by the impugned constitutional
Equality has two facets "formal equality" and "proportional
equality". Proportional equality is equality "in fact" whereas
formal equality is equality "in law". Formal equality exists in the
rule of law. In the case of proportional equality the State is expected to take
affirmative steps in favour of disadvantaged sections of the society within the
framework of liberal democracy. Egalitarian equality is proportional equality.
xx xx xx 107. It is important to bear in mind the nature of constitutional
amendments. They are curative by nature. Article 16(4) provides for reservation
for Backward Classes in cases of inadequate representation in public
employment. Article 16(4) is enacted as a remedy for the past historical discriminations
against a social class. The object in enacting the enabling provisions like
Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify
and recognise the compelling interests. If the State has quantifiable data to
show backwardness and inadequacy then the State can make reservations in
promotions keeping in mind maintenance of efficiency which is held to be a
constitutional limitation on the discretion of the State in making reservation
as indicated by Article 335. As stated above, the concepts of efficiency,
backwardness, inadequacy of representation are required to be identified and
measured. That exercise depends on availability of data. That exercise depends
on numerous factors. It is for this reason that enabling provisions are
required to be made because each competing claim seeks to achieve certain
goals. How best one should optimise these conflicting claims can only be done
by the administration in the context of local prevailing conditions in public
This is amply demonstrated by the various decisions of this Court discussed
Therefore, there is a basic difference between "equality in law"
and "equality in fact" (see Affirmative Action by William Darity). If
Articles 16(4-A) and 16(4-B) flow from Article 16(4) and if Article 16(4) is an
enabling provision then Articles 16(4-A) and 16(4-B) are also enabling
provisions. As long as the boundaries mentioned in Article 16(4), namely,
backwardness, inadequacy and efficiency of administration are retained in Articles
16(4-A) and 16(4-B) as controlling factors, we cannot attribute constitutional
invalidity to these enabling provisions. However, when the State fails to
identify and implement the controlling factors then excessiveness comes in,
which is to be decided on the facts of each case. In a given case, where
excessiveness results in reverse discrimination, this Court has to examine
individual cases and decide the matter in accordance with law. This is the
theory of "guided power". We may once again repeat that equality is
not violated by mere conferment of power but it is breached by arbitrary
exercise of the power conferred".
102. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625) it was
observed as follows:
"57. This is not mere semantics. The edifice of our Constitution is
built upon the concepts crystallised in the preamble. We resolved to constitute
ourselves into a Socialist State which carried with it the obligation to secure
to our people justice social, economic and political. We, therefore, put Part
IV into our Constitution containing directive principles of State policy which
specify the socialistic goal to be achieved. We promised to our people a
democratic polity which carries with it the obligation of securing to the
people liberty of thought, expression, belief, faith and worship;
equality of status and of opportunity and the assurance that the dignity of
the individual will at all costs be preserved. We, therefore, put Part III in
our Constitution conferring those rights on the people. Those rights are not an
end in themselves but are the means to an end. The end is specified in Part IV.
Therefore, the rights conferred by Part III are subject to reasonable
restrictions and the Constitution provides that enforcement of some of them
may, in stated uncommon circumstances, be suspended. But just as the rights
conferred by Part III would be without a radar and a compass if they were not
geared to an ideal, in the same manner the attainment of the ideals set out in
Part IV would become a pretence for tyranny if the price to be paid for
achieving that ideal is human freedoms. One of the faiths of our founding
fathers was the purity of means. Indeed, under our law, even a dacoit who has
committed a murder cannot be put to death in the exercise of right of
self-defence after he has made good his escape. So great is the insistence of
civilised laws on the purity of means. The goals set out in Part IV have,
therefore, to be achieved without the abrogation of the means provided for by
Part III. It is in this sense that Parts III and IV together constitute the
core of our Constitution and, combine to form its conscience. Anything that
destroys the balance between the two parts will ipso facto destroy an essential
element of the basic structure of our Constitution".
103. The view was affirmed in T.M.A. Pai Foundation and Ors.
v. State of Karnataka and Ors. (2002 (8) SCC 481) 104. It has been
highlighted that Articles 15(4) and 15(5) are irreconcilable. It is pointed out
that Article 30 is not intended to pamper any class of people, but is intended
to assure minorities regarding the right to establish. In that sense, Article
19(1)(g) is applicable. The said right is an inalienable and sacrosanct right.
According to Mr. Venugopal, Article 15(5) carved out an area from Article
15(4). Article 29(2) has to be read into Article 15(5) as Articles 15(4) and
15(5) operated side by side. As a result of Article 15(5) by special provision
minorities unaided rights are excluded. Article 30 does not relate to any
special right for protection against majority and it cannot be termed to be any
higher right and, therefore, Article 19(1)(g) restriction is not there. The
object is not to create inequality.
105. It is pointed out that both Articles 15(4) and 15(5) begin with non
obstante provision. Article 15(5) is a later introduction. It is stated that
Article 15(1) has to prevail over Article 15(4) and the right given to certain
class of people in Article 15(4) gets eliminated because of Article 15(5).
106. Provisions of the Constitution have to be read harmoniously and no part
can be treated to be redundant. In our considered view both the provisions
operate in different areas though there may be some amount of overlapping but
that does not in any way lead to the conclusion that Article 15(5) takes away
what is provided in Article 15(4).
107. A construction which reduces the statute to a futility has to be
avoided. A statute or any enacting provision therein must be so construed as to
make it effective and operative on the principle expressed in the maxim ut res
magis valeat quam pereat i.e. a liberal construction should be put upon written
instruments, so as to uphold them, if possible, and carry into effect the
intention of the parties. [See Broom's Legal Maxims (10th Edn.), p. 361, Craies
on Statutes (7th Edn.), p. 95 and Maxwell on Statutes (11th Edn.).
108. A statute is designed to be workable and the interpretation thereof by
a court should be to secure that object unless crucial omission or clear
direction makes that end unattainable. (See Whitney v. IRC (1926 AC 37) at p.
52 referred to in CIT v. S. Teja Singh (AIR 1959 SC 352) and Gursahai Saigal v.
CIT (AIR 1963 SC 1062).
109. The courts will have to reject that construction which will defeat the
plain intention of the legislature even though there may be some inexactitude
in the language used.
(See Salmon v. Duncombe (1886) 11AC 627 at p.634, Curtis v.
Stovin (1889) 22 QBD 513) referred to in S. Teja Singh case .) 110. If the
choice is between two interpretations, the narrower of which would fail to
achieve the manifest purpose of the legislation, we should avoid a construction
which would reduce the legislation to futility, and should rather accept the
bolder construction, based on the view that Parliament would legislate only for
the purpose of bringing about an effective result. (See Nokes v. Doncaster
Amalgamated Collieries (1940 (3) All ER 549) referred to in Pye v. Minister for
Lands for NSW (1954) 3 All ER 514. The principles indicated in the said cases
were reiterated by this Court in Mohan Kumar Singhania v.
Union of India (1992 Supp (1) SCC 594).
111. The statute must be read as a whole and one provision of the Act should
be construed with reference to other provisions in the same Act so as to make a
consistent enactment of the whole statute.
112. The court must ascertain the intention of the legislature by directing
its attention not merely to the clauses to be construed but to the entire
statute; it must compare the clause with other parts of the law and the setting
in which the clause to be interpreted occurs. (See R.S. Raghunath v. State of
Karnataka (1992) 1 SCC 335) Such a construction has the merit of avoiding any
inconsistency or repugnancy either within a section or between two different
sections or provisions of the same statute. It is the duty of the court to
avoid a head- on clash between two sections of the same Act. (See Sultana Begum
v. Prem Chand Jain 1997 (1) SCC 373.) 113. Whenever it is possible to do so, it
must be done to construe the provisions which appear to conflict so that they
harmonise. It should not be lightly assumed that Parliament had given with one
hand what it took away with the other.
114. The provisions of one section of the statute cannot be used to defeat
those of another unless it is impossible to effect reconciliation between them.
Thus a construction that reduces one of the provisions to a "useless
lumber" or "dead letter" is not a harmonized construction. To
harmonise is not to destroy.
115. The Constitution of India is not intended to be static. It is by its
very nature dynamic. It is a living and organic thing. It is an instrument
which has greatest value to be construed. "Ut Res Valeat Potius Quam
Pereat" (the construction should be preferred which makes the machinery
workable). Our Constitution reflects the beliefs and political aspirations of
those who had framed it. It is therefore desirable that while considering the
question as to whether 27% fixed for the other backward classes to be
maintained without definite data the rights of those who belong to the
unfortunate categories of other economic backward classes deserve to be
concerned, else there shall be no definite determination of number of other
backward classes. While fixing the measure for creamy layer it would not be
difficult also to fix the norms for the socially and economically backward
classes rather the latter exercise would be easier to undertake.
116. In Indra Sawhney's No.1 the desirability of excluding some posts from
the zone of reservation was highlighted. It was also emphasized that periodic
review of policy of reservation was imperative. It was inter-alia observed as
"838. While on Article 335, we are of the opinion that there are
certain services and positions where either on account of the nature of duties
attached to them or the level (in the hierarchy) at which they obtain, merit as
explained hereinabove, alone counts. In such situations, it may not be
advisable to provide for reservations. For example technical posts in research
and development organizations/departments/institutions, in specialties and
super-specialties in medicine, Engineering and other such courses in physical
sciences and mathematics in defence services and in the establishment connected
therewith. Similarly, in the case of posts at the higher echelons e.g.
Professors (in Education), Pilots in Indian Airlines and Air India, Scientists
and Technicians in Nuclear and Space application, provision for reservation
would not be advisable.
xx xx xx 840. We may point out that the services/posts enumerated above, on
account of their nature and duties attached, are such as call for highest level
of intelligence, skill and excellence. Some of them are second level and third
level posts in the ascending order.
Hence, they form a category apart.
Reservation therein may not be consistent with "efficiency of
administration" contemplated by Article 335.
xx xx xx 859. "We may summarise our answers to the various questions
dealt with and answered hereinabove;
(1) (a) It is not necessary that the 'provision' under Article 16(4) should
necessarily be made by the Parliament/Legislature. Such a provision can be made
by the Executive also. Local bodies, statutory Corporations and other
instrumentalities of the State falling under Article 12 of the Constitution are
themselves competent to make such a provision, if so advised.
(b) An executive order making a provision under Article 16(4) is enforceable
the moment it is made and issued.
(2) (a) Clause (4) of Article 16 is not an exception to clause (1). It is an
instance and an illustration of the classification inherent in clause (1).
(b) Article 16(4) is exhaustive of the subject of reservation in favour of
backward class of citizens, as explained in this judgment.
(c) Reservations can also be provided under clause (1) of Article
16. It is not confined to extending of preferences, concessions or
exemptions alone. These reservations, if any, made under clause (1) have to be
so adjusted and implemented as not to exceed the level of representation
prescribed for 'backward class of citizens' as explained in this judgment.
3. (a) A caste can be and quite often is a social class in India. If it is
backward socially, it would be a backward class for the purposes of Article
16(4). Among non-Hindus, there are several occupational groups, sets and
denominations, which for historical reasons are socially backward. They too
represent backward, social collectivities for the purposes of Article 16(4).
(b) Neither the Constitution nor the law prescribes the procedure or method
of identification of backward classes. Nor is it possible or advisable for the
court to lay down any such procedure or method. It must be left to the
authority appointed to identify.
It can adopt such method/procedure as it thinks convenient and so long as
its survey covers the entire populace, no objection can be taken to it.
Identification of the backward classes can certainly be done with reference
to castes among, and alongwith, other occupational groups, classes and sections
of people. One can start the process either with occupational groups or with
castes or with some other groups. Thus one can start the process with castes,
wherever they are found, apply the criteria (evolved for determining
backwardness) and find out whether it satisfy the criteria.
If it does-what emerges is a "backward class of citizens" within
the meaning of and for the purposes of Article 16(4). Similar process can be
adopted in the case of other occupational groups, communities and classes so as
to cover the entire populace. The central idea and overall objective should be
to consider all available groups, sections and classes in society. Since caste
represents an existing, identifiable social group/class encompassing an
overwhelming minority of the country's population, one can well begin with it
and then go to other groups, sections and classes.
(c) It is not correct to say that the backward class of citizens
contemplated in Article 16(4) is the same as the socially and educationally
backward classes referred to in Article 15(4). It is much wider. The accent in
Article 16(4) is on social backwardness. Of course, social, educational and
economic backwardness are closely inter- twined in the Indian context.
(d) 'Creamy layer' can be, and must be excluded.
(e) It is not necessary for a class to be designated as a backward class
that it is situated similarly to the Scheduled Castes/Scheduled Tribes.
f) The adequacy of representation of a particular class in the services
under the State is a matter within the subjective satisfaction of the
appropriate Government. The judicial scrutiny in that behalf is the same as in
other matters within the subjective satisfaction of an authority.
(4) (a) A backward class of citizens cannot be identified only and
exclusively with reference to economic criteria.
(b) It is, of course, permissible for the Government or other authority to
identify a backward class of citizens on the basis of occupation cum income,
without reference to caste, if it is so advised.
5. There is no constitutional bar to classify the backward classes of
citizens into backward and more backward categories.
6. (a) and (b) The reservations contemplated in clause (4) of Article 16
should not exceed 50%. While 50% shall be the rule, it is necessary not to put
out of consideration certain extra ordinary situation inherent in the great
diversity of this country and the people.
117. In Vasanth Kumar's case (supra) at para 2(4), it was observed as
"2(4). The policy of reservations in employment, education and
legislative institutions should be reviewed every five years or so. That will
at once afford an opportunity (i) to the State to rectify distortions arising
out of particular facets of the reservation policy and (ii) to the people, both
backward and non- backward, to ventilate their views in a public debate on the
practical impact of the policy of reservations."
118. In State of A.P. & Anr. v. P. Sagar (1968 (3) SCR 595) at para 15,
it was observed as follows:
"Article 15 guarantees by the first clause a fundamental right of
far-reaching importance to the public generally. Within certain defined limits
an exception has been engrafted upon the guarantee of the freedom in cl. (1),
but being in the nature of an exception, the conditions which justify departure
must be strictly shown to exist. When a dispute is raised before a Court that a
particular law which is inconsistent with the guarantee against discrimination
is valid on the plea that it is permitted under clause (4) of Art. 15 the
assertion by the State that the officers of the State had taken into
consideration the criteria which had been adopted by the Courts for determining
who the socially and educationally backward classes of the Society are, or that
the authorities had acted in good faith in determining the socially and
educationally backward classes of citizens, would not be sufficient to sustain
the validity of the claim.
The Courts of the country are invested with the power to determine the
validity of the law which infringes the fundamental rights of citizens and
others and when a question arises whether a law which prima facie infringes a
guaranteed fundamental right is within an exception, the validity of that law
has to be determined by the Courts on materials placed before them. By merely
asserting that the law was made after full consideration of the relevant
evidence and criteria which have a bearing thereon, and was within the
exception, the jurisdiction of the Courts to determine whether by making the
law a fundamental right has been infringed is not excluded."
119. Significant observations were made in Kumari K.S.
Jayasree and Anr. v. The State of Kerala and Anr. (1976 (3) SCC 730 ). At
para 22 it was noted as follows:
."The problem of determining who are socially and educationally
backward classes is undoubtedly not simple. Sociological and economic
considerations come into play in evolving proper criteria for its
This is the function of the State. The Court's jurisdiction is to decide
whether the tests applied are valid. If it appears that tests applied are
proper and valid the classification of socially and educationally backward
classes based on the tests will have to be consistent with the requirements of
Article 15(4). The Commission has found on applying the relevant tests that the
lower income group of the communities named in Appendix VIII of the Report
constitute the socially and educationally backward classes. 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. It
is necessary to remember that special provision is contemplated for classes of
citizens and not for individual citizens as such, and so though the caste of
the group of citizen may be relevant, its importance should not be exaggerated.
If the classification is based solely on caste of the citizen, it may not be
logical. Social backwardness is the result of poverty to a very large extent.
Caste and poverty are both relevant for determining the backwardness.
But neither caste alone nor poverty alone will be the determining tests.
When the Commission has determined a class to be socially and educationally
backward it is not on the basis of income alone, and the determination is based
on the relevant criteria laid down by the Court. Evidence and material are
placed before the Commission. Article 15(4) which speaks of backwardness of
classes of citizens indicates that the accent is on classes of citizens.
Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes.
Therefore, socially and educationally backward classes of citizens in
Article 15(4) cannot be equated with castes. In R. Chitralekha and Anr. v.
State of Mysore and Ors. ( 1964 (6) SCR 368 ) this Court said that the
classification of backward classes based on economic conditions and occupations
does not offend Article 15(4)."
120. Further, in Minor A. Peeriakaruppan, Sobha Joseph v.
State of Tamil Nadu and Ors. (1971 (1) SCC 38) at para 29 it was observed as
"Rajendran's case (1968 (2) SCR 786) is an authority for the
proposition that the classification of backward classes on the basis of castes
is within the purview of Article 15(4) if those castes are shown to be socially
and educationally backward. No further material has been placed before us to
show that the reservation for backward classes with which we are herein
concerned is not in accordance with Article 15(4). There is no gainsaying the
fact the there are numerous castes in this country which are socially and
educationally backward. To ignore their existence is to ignore the facts of
life. Hence we are unable to uphold the contention that impugned reservation is
not in accordance with Article 15(4). But all the same the Government should
not proceed on the basis that once a class is considered as a backward class it
should continue to be backward class for all times. Such an approach would
defeat the very purpose of the reservation because once a class reaches a stage
of progress which some modern writers call as take off stage then competition
is necessary for their future progress. The Government should always keep under
review the question of reservation of seats and only the classes which are
really socially and educationally backward should be allowed to have the
benefit of reservation. Reservation of seats should not be allowed to become a
vested interest. The fact that candidates of backward classes have secured
about 50% of the seats in the general pool does show that the time has come for
a de novo comprehensive examination of the question. It must be remembered that
the Government's decision in this regard is open to judicial review."
121. It has been highlighted that the Act has been made applicable to
Central Educational Institutions established, maintained or aided by the
Central Government. Central Educational Institutions have been defined in
Section 2(d) as follows:
"2(d) Central Educational Institution" means- (i) a university
established or incorporated by or under a Central Act;
(ii) an institution of national importance set up by an Act of Parliament;
(iii) an institution, declared as a deemed University under Section 3 of the
Grants Commission Act, 1956 and
maintained by or receiving aid from the Central Government;
(iv) an institution maintained by or receiving aid from the Central
Government, whether directly or indirectly, and affiliated to an institution
referred to in clause (i) or clause (ii), or a constituent unit of an
institution referred to in clause (iii);
(v) an educational institution set up by the Central Government under the Societies
Registration Act, 1860."
122. It is pointed out that there cannot be any reservations in respect of
super specialities and institutions imparting education of highly complex
subjects. The example of All India Institute of Medical Sciences has been
given. It has been pointed out that its status as an institution for super
speciality has been judicially recognized. It needs to be noted that in terms
of Section 4(b) of the Act certain educational institutions have been excluded
from the operation of the Act.
123. The Act has been made inapplicable to them. It is to be noted that in
the said provision, institutions of research, institutions of excellence,
institutions of national and strategic importance have been specified in the
Schedule to the Act.
The proviso permits the Central Government as and when considered necessary
to amend the Schedule. In other words, on an appropriate case being presented
and established before the Central Government that the Institution is of
excellence and/or a research institute and/or an institution of national and
strategic importance, the Central Government can amend the Schedule and include
such institution in the Schedule. In other words, it is permissible for the
petitioners and anybody else to highlight to the Government about the
desirability to include an Institution in the Schedule of the Act.
124. One of the major issues highlighted by Mr. P.P. Rao was that in several
cases the matriculation standard of education was considered to be the measure
for measuring backwardness. It is, therefore, submitted that when at least half
of the persons belonging to a particular caste have reached the matriculation
level of education, they cannot be considered to be educationally backward any
longer. It is therefore submitted that if that be taken as a yardstick for
measuring backwardness then the reservation of seats for technical education or
in higher studies cannot be sustained.
It has also been highlighted that the shift of emphasis from primary and
basic education to higher education is against the constitutional mandate
making education compulsory in terms of Article 21-A of the Constitution. It is
not correct to contend that in fixing the priorities the Government is the best
Judge as contended by the respondents. It may be correct in matters relating to
simple policy decisions but when the constitutional mandate is under
consideration the underlying object has also to be kept in view. In this
context reference is made to Article 46 of the Constitution. It is in that
background pointed out by learned counsel for the petitioners that what cannot
be lost sight of is the fact that is the foundation for basic, elementary and
primary education. The educational backwardness can be obliterated when at
least half of the persons belonging to a particular caste come up to a
125. There is substance in this plea. It is not merely the existence of
schemes but the effective implementation of the schemes that is important. It
is to be noted that financial constraint cannot be a ground to deny fundamental
rights and the provision for the schemes and the utilization of the funds are
also relevant factors. It appears that better coordination between the funds
provider and the utiliser is necessary. It is suggested that putting stress on
cut off limit by shifting from matriculation to Class XII level education as a
benchmark of gauging educational backwardness will be a step in the right
direction. Though as rightly contended by Mr. P.P. Rao that in several
decisions, for example, M.R. Balaji's case (supra), Balram's case (supra) and
Kumari K.S. Jayasree's case (supra) the secondary education was taken to be the
benchmark, ground reality cannot be lost sight of that with the limited
availability of jobs and the spiraling increase in population, secondary or
matriculation examination can no longer be considered to be an appropriate
bench mark. It has to be at the most graduation. But the question arises
whether technical education can be included while considering educational
backwardness. A delicate balancing has to be done in this regard. While
technical education cannot be the sole criteria for gauging educational
backwardness it definitely will form part of 50 per cent norms fixed by this
Court. Slightly variable plus or minus would be the appropriate standard to
gauge educational backwardness.
126. One of the grey areas which have been highlighted by learned counsel
for the petitioners is that caste is not a substitute for class and
nevertheless the two terms are not synonyms. Much of the argument in this
regard is centred round the paragraphs 782 and 783 of Indra Sawhney No.1
(supra). The same read as under:
"782. Coming back to the question of identification, the fact remains
that one has to begin somewhere with some group, class or section. There is no
set or recognised method.
There is no law or other statutory instrument prescribing the methodology.
The ultimate idea is to survey the entire populace. If so, one can well begin
with castes, which represent explicit identifiable social classes/groupings,
more particularly when Article 16(4) seeks to ameliorate social backwardness.
What is unconstitutional with it, more so when caste, occupation poverty and
social backwardness are so closely intertwined in our society? [Individual survey
is out of question, since Article 16(4) speaks of class protection and not
individual protection]. This does not mean that one can wind up the process of
identification with the castes. Besides castes (whether found among Hindus or
others) there may be other communities, groups, classes and denominations which
may qualify as backward class of citizens. For example, in a particular State,
Muslim community as a whole may be found socially backward. (As a matter of
fact, they are so treated in the State of Karnataka as well as in the State of
Kerala by their respective State Governments). Similarly, certain sections and
denominations among Christians in Kerala who were included among backward
communities notified in the former princely State of Travancore as far back as
in 1935 may also be surveyed and so on and so forth. Any authority entrusted
with the task of identifying backward classes may well start with the castes.
It can take caste 'A', apply the criteria of backwardness evolved by it to that
caste and determine whether it qualifies as a backward class or not. If it does
qualify, what emerges is a backward class, for the purposes of clause (4) of
Article 16. The concept of 'caste' in this behalf is not confined to castes
among Hindus. It extends to castes, wherever they obtain as a fact,
irrespective of religious sanction for such practice. Having exhausted the
castes or simultaneously with it, the authority may take up for consideration
other occupational groups, communities and classes. For example, it may take up
the Muslim community (after excluding those sections, castes and groups, if
any, who have already been considered) and find out whether it can be
characterised as a backward class in that State or region, as the case may be.
The approach may differ from State to State since the conditions in each State
may differ from State to State since the conditions in each State may differ.
Nay, even within a State, conditions may differ from region to region.
Similarly, Christians may also be considered. If in a given place, like
Kerala, there are several denominations, sections or divisions, each of these
groups may separately be considered. In this manner, all the classes among the
populace will be covered and that is the central idea. The effort should be to
consider all the available groups, sections and classes of society in whichever
order one proceeds. Since caste represents an existing, identifiable, social
group spread over an over whelming majority of the country's population, we say
one may well begin with castes, if one so chooses, and then go to other groups,
sections and classes.
We may say, at this stage, that we broadly commend the approach and
methodology adopted by the Justice O. Chinnappa Reddy Commission in this
783. We do not mean to suggest we may reiterate that the procedure
indicated hereinabove is the only procedure or method/approach to be adopted.
Indeed, there is no such thing as a standard or model procedure/approach. It is
for the authority (appointed to identify) to adopt such approach and procedure
as it thinks appropriate, and so long as the approach adopted by it is fair and
adequate, the court has no say in the matter.
The only object of the discussion in the preceding para is to emphasise that
if a Commission/Authority begins its process of identification with castes
(among Hindus) and occupational groupings among others, it cannot by that
reason alone be said to be constitutionally or legally bad. We must also say
that there is no rule of law that a test to be applied for identifying backward
classes should be only one and/or uniform. In a vast country like India, it is
simply not practicable.
If the real object is to discover and locate backwardness, and if such
backwardness is found in a caste, it can be treated as backward; if it is found
in any other group, section or class, they too can be treated as
127. On a closer reading of the paragraphs it appears that this Court took
note of the fact that several religions do not have any caste. Therefore, the
first sentence of para`782 lays emphasis to begin somewhere with some group,
class or section. It also states that there is no set or recognized method and
there is no law or other statutory instrument prescribing the methodology. In
this context, it has also been stated that one can well begin with castes which
represent explicit identifiable social classes or groupings. Therefore, the
emphasis was on beginning with castes which represent as explicit identifiable
social classes or grouping. Again in paragraph 783, it has been stated that in
a vast country like India it is simply not practicable to fix the test for
identifying backward classes. In that background it was held that if the real
objective is to discover and locate the real backwardness and if such
backwardness is found in a caste it can be considered as backwardness.
Similarly if it is found in any other group, section or class they too can be
treated as backward. The intention therefore is clear that if caste is found to
be backward it can certainly be treated as backward.
To give any other meaning would be adding or subtracting to what has been
specifically stated in the decision.
128. It is also relevant to take note of certain earlier decisions referred
to in Indra Sawhney No.1 case (supra) which throw beacon light on the issue.
They are as under:
1. M.R. Balaji v. State of Mysore,1963 Supp (1) SCR 439 "Article 15(4)
authorises the State to make a special provision for the advancement of any
socially and educationally backward classes of citizens, as distinguished from
the Scheduled Castes and Scheduled Tribes. No doubt, special provision can be
made for both categories of citizens, but in specifying the categories, the
first category is distinguished from the second. Sub-clauses (24) and (25) of
Article 366 define Scheduled Castes and Scheduled Tribes respectively, but
there is no clause defining socially and educationally backward classes of
citizens, and so, in determining the question as to whether a particular
provision has been validly made under Article 15(4) or not, the first question
which falls to be determined is whether the State has validly determined who
should be included in these Backward Classes. 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 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 may be somewhat less, backward than the Scheduled Castes and
Tribes and it was thought that some special provision ought to be made even for
Let us take the question of social backwardness first. By what test should
it be decided whether a particular class is socially backward or not? The group
of citizens to whom Article 15(4) applies are described as "classes of
citizens", not as castes of citizens. A class, according to the dictionary
meaning, shows division of society according to status, rank or caste. In the
Hindu social structure, caste unfortunately plays an important part in
determining the status of the citizen. Though according to sociologists and
vedic scholars, the caste system may have originally begun on occupational or
functional basis, in course of time, it became rigid and inflexible. The
history of the growth of caste system shows that its original functional and
occupational basis was later over-burdened with considerations of purity based
on ritual concepts, and that led to its ramifications which introduced
inflexibility and rigidity. This artificial growth inevitably tended to create
a feeling of superiority and inferiority, and to foster narrow caste loyalties.
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.
In this 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
classification of backward classes of citizens was based solely on the caste of
the citizen, it may not always be logical and may perhaps contain the vice of
perpetuating the castes themselves.
xx xx xx Besides, if the caste of the group of citizens was made the sole
basis for determining the social backwardness of the said group, that test
would inevitably break down in relation to many sections of Indian society
which do not recognise castes in the conventional sense known to Hindu society.
How is one going to decide whether Muslims, Christians or Jains, or even
Lingayats are socially backward or not? The test of castes would be
inapplicable to those groups, but that would hardly justify the exclusion of
these groups in toto from the operation of Article 15(4). It is not unlikely
that in some States some Muslims or Christians or Jains forming groups may be
socially backward. That is why we think that though castes in relation to
Hindus may be a relevant factor to consider in determining the social
backwardness of groups or classes of citizens, it cannot be made the sole or
the dominant test in that behalf. Social backwardness is on the ultimate
analysis the result of poverty to a very large extent. The classes of citizens
who are deplorably poor automatically become socially backward. They do not
enjoy a status in society and have, therefore, to be content to take a backward
seat. It is true that social backwardness which results from poverty is likely
to be aggravated by considerations of caste to which the poor citizens may
belong, but that only shows the relevance of both caste and poverty in
determining the backwardness of citizens.
2. R. Chitralekha v State of Mysore AIR 1964 SC 1823 Justice Subba Rao
referred to the observations in M.R. Balaji v. State of Mysore and observed:
"15. Two principles stand out prominently from the said observations,
namely, (i) the caste of a group of citizens may be a relevant circumstance in
ascertaining their social backwardness; and (ii) though it is a relevant factor
to determine the social backwardness of a class of citizens, it cannot be the
dole or dominant test in that behalf. The observations extracted in the
judgment of the High Court appear to be in conduct with the observations of
this Court. While this Court said that caste is only a relevant circumstance
and that it cannot be the dominant test in ascertaining the backwardness of a
class of citizens, the High Court said that it is an important basis in determining
the class of backward Hindus and that the Government should have adopted caste
as one of the tests. As the said observations made by the High Court may lead
to some confusion in the mind of the authority concerned who may be entrusted
with the duty of prescribing the rules for ascertaining the backwardness of
classes of citizens within the meaning of Art. 15(4) of the Constitution, we
would hasten to make it clear that caste is only a relevant circumstance in
ascertaining the backwardness of a class and there is nothing in the judgment
of this Court which precludes the authority concerned from determining the
social backwardness of a group of citizens if it can do so without reference to
caste. While this Court has not excluded caste from ascertaining the
backwardness of a class of citizens, it has not made it one of the compelling
circumstances affording a basis for the ascertainment of backwardness of a
class. To put it differently, the authority concerned may take caste into
consideration in ascertaining the backwardness of a group of persons; but, if
it does not, its order will not be bad on that account, if it can ascertain the
backwardness of a group of persons on the basis of other relevant criteria.
19The important factor to be noticed in Art. 15(4) is that it does not speak
of castes, but only speaks of classes. If the makers of the Constitution
intended to take castes also as units of social and educational backwardness,
they would have said so as they have said in the case of the Scheduled Castes
and the Scheduled Tribes. Though it may be suggested that the wider expression
"classes" is used in clause (4) of Art. 15 as there are communities
without castes, if the intention was to equate classes with castes, nothing
prevented the makers of the Constitution from using the expression
"backward classes or castes". The juxtaposition of the expression
"backward classes" and "Scheduled Castes" in Art. 15(4)
also leads to a reasonable inference that the expression "classes" is
not synonymous with castes. It may be that for ascertaining whether a
particular citizen or a group of citizens belong to a backward class or not,
his or their caste may have some relevance, but it cannot be either the sole or
the dominant criterion for ascertaining the class to which he or they belong.
20. This interpretation will carry out the intention of the Constitution
expressed in the aforesaid Articles. It helps the really backward classes
instead of promoting the interests of individuals or groups who, though they
belong to a particular caste a majority whereof is socially and educationally
backward, really belong to a class which is socially and educationally
advanced. To illustrate, take a caste in a State which is numerically the
largest therein. It may be that though a majority of the people in that caste
are socially and educationally backward, an effective minority may be socially
and educationally far more advanced than another small sub-caste the total
number of which is far less than the said minority. If we interpret the
expression "classes" as "castes", the object of the
Constitution will be frustrated and the people who do not deserve any
adventitious aid may get it to the exclusion of those who really deserve. This
anomaly will not arise if, without equating caste with class, caste is taken as
only one of the considerations to ascertain whether a person belongs to a
backward class or not. On the other hand, if the entire sub- caste, by and
large, is backward, it may be included in the Scheduled Castes by following the
appropriate procedure laid down by the Constitution.
21. We do not intend to lay down any inflexible rule for the Government to
The laying down of criteria for ascertainment of social and educational
backwardness of a class is a complex problem depending upon many circumstances
which may vary from State to State and even from place to place in a State.
But what we intend to emphasize is that under no circumstances a
"class" can be equated to a "caste", though the caste of an
individual or a group of individual may be considered along with other relevant
factors in putting him in a particular class. We would also like to make it
clear that if in a given situation caste is excluded in ascertaining a class
within the meaning of Art. 15(4) of the Constitution, it does not vitiate the
classification if it satisfied other tests.
3. Minor P. Rajendran v State of Madras (1968 (2) SCR 787) "The first
challenge is to r. 5 on the ground that it violates Art. 15 of the
Article 15 forbids discrimination against any citizen on the grounds only of
religion, race, caste, sex, place of birth or any of them. At the same time
Art. 15(4) inter alia permits the State to make any special provision for the
advancement of any socially and educationally backward classes of citizens. The
contention is that the list of socially and educationally backward classes for
whom reservation is made under r. 5 is nothing but a list of certain castes.
Therefore, reservation in favour of certain castes based only on caste
considerations violates Art. 15(1), which prohibits discrimination on the
ground o caste only. Now if the reservation in question had been based only on
caste and had not taken into account the social and educational backwardness of
the caste in question, it would be violative of Art. 15(1). But it must not be
forgotten that a caste is also a class of citizens and if the caste as a whole
is socially and educationally backward reservation can be made in favour of
such a caste on the ground that it is a socially and educationally backward
class of citizens within the meaning of Art.
15(4). Reference in this connection may be made to the observations of this
Court in M. R.
Balaji v. State of Mysore ( Supp. 1 S.C.R.
439 at p. 459-460) to the effect that it was not irrelevant to consider the
caste of a class of citizens in determining their social and educational
backwardness. It was further observed that though the caste of a class of
citizens may be relevant its importance should not be exaggerated; and if
classification of backward classes of citizens was based solely on the caste of
the citizen, it might be open to objection. It is true that in the present
cases the list of socially and educationally backward classes has been
specified by caste. But that does not necessarily mean that caste was the sole
consideration and that persons belonging to these castes are also not a class
of socially and educationally backward citizens. In its reply, the State of
Madras has given the history as to how this list of backward classes was made,
starting from the year 1906 and how the list has been kept upto date and
necessary amendments made therein. It has also been stated that the main
criterion for inclusion in the list was the social and educational backwardness
of the caste based on occupations pursued by these castes.
Because the members of the caste as a whole were found to be socially and
educationally backward, they were put in the list. The matter was finally
examined after the Constitution came into force in the light of the provisions
contained in Art. 15(4). As it was found that members of these castes as a
whole were educationally and socially backward, the list which had been coming
on from as far back as 1906 was finally adopted for purposes of Art.
15(4). In short the case of the State of Madras is that the castes included
in the list are only a compendious indication of the class of people in those
castes and these classes of people had been put in the list for the purpose of
15(4) because they had been found to be socially and educationally backward.
This is the position as explained in the Affidavit filed on behalf of the
State of Madras.
On the other hand the only thing stated in the petitions is that as the list
is based on caste alone it is violative of Art. 15(1). In view however of the
explanation given by the State of Madras, which has not been controverted by
any rejoinder, it must be accepted that though the list shows certain castes,
the members of those castes are really classes of educationally and socially
backward citizens. No attempt was made on behalf of the petitioners/appellant
to show that any caste mentioned in this list was not educationally and
socially backward. No such averment was made in the affidavit in support of
their cases, nor was any attempt made to traverse the case put forward on
behalf of the State of Madras by filing a rejoinder affidavit to show that even
one of the castes included in the list was not educationally and socially
backward. In this state of the pleadings, we must come to the conclusion that
though the list is prepared caste-wise, the castes included therein are as a
whole educationally and socially backward and therefore the list is not violate
of Art. 15. The challenge to r. 5 must therefore fail.
4) State of Andhra Pradesh v P. Sagar (1968 (3) SCR 595) "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, 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. By cl. (1) Art. 15 prohibits
the State from discriminating against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
By cl. (3) of Art. 15 the State is, notwithstanding the provision contained
(1), permitted to make special provision for women and children. By cl. (4)
a special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and Scheduled Tribes
is outside the purview of cl. (1). But cl.
(4) is an exception to cl. (1). Being an exception, it cannot be extended so
as in effect to destroy the guarantee of cl. (1). The Parliament has by
enacting cl. (4) attempted to balance as against the right of equality of
citizens the special necessities of the weaker sections of the people by
allowing a provision to be made for their advancement. In order that effect may
be given to cl. (4), it must appear that the beneficiaries of the special
provision are classes which are backward socially and educationally and they
are other that the Scheduled Castes and Scheduled Tribes, and that the
provision made is for their advancement."
5. Minor A. Peeriakaruppan (Minor) v.
State of T.N., (1971) 1 SCC 38 :
"25. A caste has always been recognized as a class. In construing the
expression "classes of His Majesty's subject" found in Section 153- A
of the Indian Penal Code, Wassoodew, J., observed in Narayan Vasudev v. Emperor
AIR 1940 Bomb 379 "In my opinion, the expression 'classes of His Majesty's
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 that the term 'class'
within that section carries with it the idea of numerical strength so large as
could be grouped in a single homogeneous community."
26. In para 10, Chapter V of the Backward Classes Commission's Report, it is
"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 backwardness at the present juncture. In modern time 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.
In para 11 of that Report it is stated:
"It is not wrong to assume that social backwardness has largely
contributed to the educational backwardness of a large number of social
27. Finally in para 13, the committee concludes with following observations:
"All this goes to prove that social backwardness is mainly based on
racial, tribal, caste and denominational differences."
28. The validity of the impugned list of backward classes came up for
consideration before this Court in Rajendran case and this is what this Court
"The contention is that the list of socially and educationally backward
classes for whom reservation is made under Rule 5 nothing but a list of certain
castes. Therefore, reservation in favour of certain castes based only on caste
considerations violates Article 15(1), which prohibits discrimination on the
ground of caste only. Now if the reservation in question had been based only on
caste and had not taken into account the social and educational backwardness of
the justice in question, it would be violative of Article 15(1). But it must
not be forgotten that a caste is also a class of citizens and if the caste as a
whole is socially and educationally backward, reservation can be made in favour
of such a caste on the ground that it is a socially and educationally backward
class of citizens within the meaning of Article 15(4)."
29. Rajendran case is an authority for the proposition that the
classification of backward classes on the basis of castes is within the purview
of Article 15(4) if those castes are shown to be socially and educationally
backward. No further material has been placed before us to show that the
reservation for backward classes with which we are herein concerned is not in
accordance with Article 15(4). There is no gainsaying the fact that there are
numerous castes in this country which are socially and educationally backward.
To ignore their existence is to ignore the facts of life. Hence we are unable
to uphold the contention that the impugned reservation is not in accordance
with Article 15(4). But all the same the Government should not proceed on the
basis that once a class is considered as a backward class it should continue to
be backward class for all times. Such an approach would defeat the very purpose
of the reservation because once a class reaches a stage of progress which some
modern writers call as take off stage then competition is necessary for their
future progress. The Government should always keep under review the question of
reservation of seats and only the classes which are really socially and
educationally backward should be allowed to have the benefit of reservation.
Reservation of seats should not be allowed to become a vested interest. The
fact that candidates of backward classes have secured about 50% of the seats in
the general pool does show that the time has come for a de novo comprehensive
examination of the question. It must be remembered that the Government's
decision in this regard is open to judicial review."
6. State of A.P. v. U.S.V. Balram, (1972) 1 SCC 660, at page 685 :
"82In the determination of a class to be grouped as backward, a test
solely based upon caste or community cannot be accepted as valid. But, in our
opinion, though Directive Principles contained in Article 46 cannot be enforced
by courts. Article 15(4) will have to be given effect to in order to assist the
weaker sections of the citizens, as the State has been charged with such a
duty. No doubt, we are aware that any provision made under this clause must be
within the well defined limits and should not be on the basis of caste alone.
But it should not also be missed that a caste is also a class of citizens
and that a caste as such may be socially and educationally backward. If after
collecting the necessary data, it is found that the caste as a whole is
socially and educationally backward, in our opinion, the reservation made of
such persons will have to be upheld notwithstanding the fact that a few
individuals in that group may be both socially and educationally above the
general average. There is no gainsaying the fact that there are numerous castes
in the country, which are socially and educationally backward and therefore a
suitable provision will have to be made by the State, as charged in Article
15(4) to safeguard their interest".
xx xx xx
94. To conclude, though prima facie the list of Backward Classes which is
under attack before us may be considered to be on the basis of caste, a closer
examination will clearly show that it is only a description of the group
following the particular occupations or professions, exhaustively referred to
by the Commission. Even on the assumption that the list is based exclusively on
caste, it is clear from the materials before the Commission and the reasons
given by it in its report that the entire caste is socially and educationally
backward and therefore their inclusion in the list of Backward Classes is
warranted by Article 15(4). The groups mentioned therein have been included in
the list of Backward Classes as they satisfy the various tests, which have been
laid down by this Court for ascertaining the social and educational
backwardness of a class."
7. Janki Prasad Parimoo v. State of J&K, (1973) 1 SCC 420, at page 432 :
"22. Article 15(4) speaks about "socially and educationally
backward classes of citizens"
while Article 16(4) speaks only of "any backward class citizens".
However, it is now settled that the expression "backward class of
citizens" in Article 16(4) means the same thing as the expression
"any socially and educationally backward class of citizens" in
Article 15(4). In order to qualify for being called a "backward class
citizen" he must be a member of a socially and educationally backward
class. It is social and educational backwardness of a class which is material
for the purposes of both Articles 15(4) and 16(4)."
xx xx xx
24. It is not merely the educational backwardness or the social backwardness
which makes a class of citizens backward; the class identified as a class as
above must be both educationally and socially backward. In India social and
educational backwardness is further associated with economic backwardness and
it is observed in Balaji case referred to above that backwardness, socially and
educationally, is ultimately and primarily due to proverty. But if proverty is
the exclusive test, a very large proportion of the population in India would
have to be regarded as socially and educationally backward, and if reservations
are made only on the ground of economic considerations, an untenable situation
may arise. Even in sectors which are recognised as socially and educationally
advanced there are large pockets of poverty. In this country except for a small
percentage of the population the people are generally poor some being more
poor, others less poor.
Therefore, when a social investigator tries to identify socially and
educationally backward classes, he may do it with confidence that they are
bound to be poor. His chief concern is, therefore, to determine whether the
class or group is socially and educationally backward.
Though the two words "socially" and "educationally" are
used cumulatively for the purpose of describing the backward class, one may
find that if a class as a whole is educationally advanced it is generally also
socially advanced because of the reformative effect of education on that class.
The words "advanced" and "backward" are only relative terms
there being several layers or strata of classes, hovering between
"advanced" and "backward", and the difficult task is which
class can be recognised out of these several layers as been socially and
25..Indeed all sectors in the rural areas deserve encouragement but whereas
the former by their enthusiasm for education can get on without special
treatment, the latter require to be goaded into the social stream by positive
efforts by the State. That accounts for the raison-d'etre of the principle
explained in Balaji case which pointed out that backward classes for whose
improvement special provision was contemplated by Article 15(4) must be
comparable to Scheduled Castes and Scheduled Tribes who are standing examples
of backwardness socially and educationally. 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."
8. State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, at page 367 :
"135. We may clear the clog of Article 16(2) as it stems from a
confusion about caste in the terminology of scheduled castes and scheduled
tribes. This latter expression has been defined in Articles 341 and 342. A bare
reading brings out the quintessential concept that they (sic there) are no
castes in the Hindu fold but an amalgam of castes, races, groups, tribes,
communities or parts thereof found on investigation to be the lowliest and in
need of massive State aid and notified as such by the President. To confuse
this backwardmost social composition with castes is to commit a constitutional
error, misled by a compendious appellation. So that, to protect harijans is not
to prejudice any caste but to promote citizen solidarity. Article 16(2) is out
of the way and to extend protective discrimination to this mixed bag of tribes,
races, groups, communities and non-castes outside the four-fold Hindu division
is not to compromise with the acceleration of castelessness enshrined in the
sub-article. The discerning sense of the Indian Corpus Juris has generally
regarded scheduled castes and scheduled tribes, not as caste but as a large
backward group deserving of societal compassion..."
9. State of U.P. v. Pradip Tandon, (1975) 1 SCC 267, at page 273 :
"14. Article 15(4) speaks of socially and educationally backward
classes of citizens. The State described the rural, hill and Uttrakhand areas
as socially and educationally backward areas. The Constitution does not enable
the State to bring socially and educationally backward areas within the
protection of Article 15(4). The Attorney-General however submitted that the
affidavit evidence established the rural, hill and Uttrakhand areas to have
socially and educationally backward classes of citizens. The backwardness
contemplated under Article 15(4) is both social and educational. Article 15(4)
speaks of backwardness of classes of citizens. The accent is on classes of
Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes.
Therefore, socially and educationally backward classes of citizens in Article
15(4) could not be equated with castes.
In M.R. Balaji v. State of Mysore and State of A.P. v. Sagar this Court held
that classification of backwardness on the basis of castes would violate both
Articles 15(1) and 15(4).
15. Broadly stated, neither caste nor race nor religion can be made the
basis of classification for the purposes of determining social and educational
backwardness within the meaning of Article 15(4). When Article 15(1) forbids
discrimination on grounds only of religion, race, caste, caste cannot be made
one of the criteria for determining social and educational backwardness. If
caste or religion is recognised as a criterion of social and educational backwardness
Article 15(4) will stultify Article 15(1). It is true that Article 15(1)
forbids discrimination only on the ground of religion, race, caste, but when a
classification takes recourse to caste as one of the criteria in determining
socially and educationally backward classes the expression "classes"
in that case violates the rule of expressio unius est exclusio alterius. The
socially and educationally backward classes of citizens are groups other than
groups based on caste.
16. The expression "socially and educationally backward classes"
in Article 15(4) was explained in Balaji case to be comparable to Scheduled
Castes and Scheduled Tribes. The reason is that the Scheduled Castes and
Scheduled Tribes illustrated social and educational backwardness. It is difficult
to define the expression "socially and educationally backward classes of
citizens". The traditional unchanging occupations of citizens may
contribute to social and educational backwardness. The place of habitation and
its environment is also a determining factor in judging the social and
17. The expression "classes of citizens"
indicates a homogeneous section of the people who are grouped together
because of certain likenesses and common traits and who are identifiable by some
common attributes. The homogeneity of the class of citizens is social and
educational backwardness. Neither caste nor religion nor place of birth will be
the uniform element of common attributes to make them a class of
10. K.S. Jayasree (Kumari) v. State of Kerala, (1976) 3 SCC 730, at page 733
"13. Backward classes for whose improvement special provisions are
contemplated by Article 15(4) are in the matter of their backwardness
comparable to scheduled castes and scheduled tribes. This Court has emphasised
in decisions that the backwardness under Article 15(4) must be both social and
educational. In ascertaining social backwardness of a class of citizens, the
caste of a citizen cannot be the sole or dominant test. Just as caste is not
the sole or dominant test, similarly poverty is not the decisive and
determining factor of social backwardness.
xx xx xx
21. 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 determining 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 the reservation is not income but social and educational
backwardness determined on the basis of relevant criteria. If any
classification of backward classes of citizens is based solely on the caste of
the citizen it will perpetuate the vice of caste system. Again, if the
classification is based solely on poverty it will not be logical.
The society is taking steps for uplift of the people. In such a task groups
or classes who are socially and educationally backward are helped by the
society. That is the philosophy of our Constitution. It is in this context that
social backwardness which results from poverty is likely to be magnified by
caste considerations. Occupations, place of habitation may also be relevant
factors in determining who are socially and educationally backward classes.
Social and economic considerations come into operation in solving the problem
and evolving the proper criteria of determining which classes are socially and
educationally backward. That is why our Constitution provided for special
consideration of socially and educationally backward classes of citizens as
also scheduled castes and tribes.
It is only by directing the society and the State to offer them all
facilities for social and educational uplift that the problem is solved. It is
in that context that the commission in the present case found that income of
the classes of citizens mentioned in Appendix VIII was a relevant factor in
determining their social and educational backwardness."
129. In Chitrelekha's case (supra) it was stated that the caste is the
starting point. This is subject of course to the parameters that if the caste
itself satisfies the test of backwardness which is implicit and inherent as
noted in para 782 of Indra Sawhney No.1 (supra). In that case caste becomes the
relevant factor. The view expressed in Chitralekha's case (supra) was not
dissented from in Indra Sawhney No.1 (supra).
In fact Justice Jeevan Reddy in the majority judgment in Indra Sawhney No.1
(supra) referred to Chitrelekha's case (supra) at para 704. As noted above in
para 782 of Indra Sawhney No.1 (supra) it has not been held that caste is
class. In the said paragraph it has been stated that individual survey is out
of question since Article 16(4) speaks of class protection and not individual
protection. In that context also it has been said that it does not mean that
one can wind up the process of identification for the castes. It has also been
emphasized in the said paragraph that having exhausted the castes or
simultaneously with it, the authority may take up for consideration other
occupational groups, communities and classes. If caste is a substitute for
class, the question of any simultaneous consideration of others does not arise.
Therefore, the Court observed that one may well begin with castes if one
chooses and then go to other groups, sections and classes. If the Court meant
to substitute the word caste with class the question of going to other classes
would not arise.
130. Reference may also be made to Akhil Bharatiya Soshit Karamchari Sangh
(Railway) v. Union of India (UOI) and Ors.
(1981(1) SCC 246) where at para 22 it was noted as follows:
"This is not mere harmonious statutory construction of Article 16(1)
and (4) but insightful perception of our constitutional culture, reflecting the
current of resurgent India bent on making, out of a sick and stratified society
of inequality and poverty, a brave new Bharat. If freedom, justice and equal
opportunity to unfold one's own personality, belong alike to bhangi and
brahmin, prince and pauper, if the panchama proletariat is to feel the social
transformation Article 16(4) promises, the State must apply equalising
techniques which will enlarge their opportunities and thereby progressively
diminish the need for props. The success of State action under Article 16(4)
consists in the speed with which result-oriented reservation withers away as,
no longer a need, not in the everwidening and everlasting operation of an
exception [Article 16(4)] as if it were a super- fundamental right to continue
backward all the time. To lend immortality to the reservation policy is to
defeat its raison de'etre; to politicise this provision for communal support
and Party ends is to subvert the solemn undertaking of Article16(1), to
casteify 'reservation' even beyond the dismal groups of backward-most people,
euphemistically described as SC & ST, is to run a grave constitutional
risk. Caste, ipso facto, is not class in a secular State."
131. Much emphasis has been laid on the use of the word 'only'. It is to be
noted that while the respondents contend that where it is demonstrated that
caste is not the only consideration the permissible provision will operate.
Reference was made to Venkataraman's case (supra). As has been rightly
contended by learned counsel for the petitioners the true effect of the word
'only' has been clarified in the decision itself.
132. It is unnecessary to decide as it has been contended by learned counsel
for the petitioners whether the concept of strict scrutiny is a measure of
judicial scrutiny as highlighted by the conditions in India. It is submitted
that label is not relevant.
133. The ultimate object is the eradication of castes and that is the
foundation for reservation. While considering the method adopted for
eradication by adopting the process of reservation indirectly the facet of
strict scrutiny comes in. The strict scrutiny test was applied in the
background of Article 19 vis-`-vis compelling State needs. The principle was
recognized in Chintaman Rao v. The State of Madhya Pradesh (1950 SCR 759). It
was inter-alia quoted as follows:
"The question for decision is whether the statute under the guise of
protecting public interests arbitrarily interferes with private business and
imposes unreasonable and unnecessarily restrictive regulations upon lawful
occupation; in other words, whether the total prohibition of carrying on the
business of manufacture of bidis within the agricultural season amounts to a
reasonable restriction on the fundamental rights mentioned in article 19 (1)(g)
of the Constitution. Unless it is shown that there is a reasonable relation of
the provisions of the Act to the purpose in view, the right of freedom of
occupation and business cannot be curtailed by it.
The phrase "reasonable restriction"
connotes that the limitation imposed on a person in enjoyment of the right
should not be arbitrary or of an excessive nature, beyond what is required in
the interests of the public.
The word "reasonable" implies intelligent care and deliberation,
that is, the choice of a course which reason dictates. Legislation which
arbitrarily or excessively invades the right cannot be said to contain the
quality of reasonableness and unless it strikes a proper balance between the
freedom guaranteed in Article 19(1)(g) and the social control permitted by
clause (6) of Article19, it must be held to be wanting in that quality".
134. Again in State of Madras v. V.G. Row (AIR 1952 SC 196) it was observed
"13. Before proceeding to consider this question we think it right to
point out, what is sometimes overlooked, that our Constitution contains express
provisions for judicial review of legislation as to its conformity with the
constitution unlike as in America where the Supreme Court has assumed extensive
power of reviewing legislative acts under cover of the widely interpreted
"due process" clause in the Fifth and Fourteenth Amendments. If,
then, the courts in this country face up to such important and none too easy
task, it is not out of any desire to tilt at legislative authority in a
crusader's spirit, but in discharge of a duty plainly laid upon them by the
This is especially true as regards the "fundamental rights" as to
which this Court has been assigned the role of a sentinel on the qui vive.
While the Court naturally attaches great weight to the legislative judgment, it
cannot dessert its own duty to determine finally the constitutionality of an
impugned statute. We have ventured on these obvious remarks because it appears
to have been suggested in some quarters that the courts in the new set up are
out to seek clashes with the legislatures in the country".
135. At the outset, it may be pointed out that the stand of petitioners is
that the primary consideration in selection of candidates for admission to the
higher educational institutions must be merit. The object of any rules, which
may be made for regulating admissions to such institutions therefore, must be
to secure the best and most meritorious students. The national interest and the
demand of universal excellence may even override the interests of the weaker
sections. In this context, Krishna Iyer J aptly observed:
"To sympathise mawkishly with the weaker sections by selecting substandard
candidates, is to punish society as a whole by denying the prospect of
excellence, say, in hospital service.
Even the poorest, when stricken by critical illness, needs the attention of
super-skilled specialists not humdrum second rates".
136. Thus, the interest of no person, class or region can be higher than
that of the nation. The philosophy and pragmatism of universal excellence
through equality of opportunity for education and advancement across the nation
is part of the constitutional creed. It is, therefore, the best and most
meritorious students that must be selected for admission to technical
institutions and medical colleges and no citizen can be regarded as outsider in
the constitutional set-up without serious detriment to the `unity and integrity'
of the nation. The Supreme Court has laid down that so far as admissions to
post graduate course such as MS, MD and the like are concerned, it would be
imminently desirable not to provide for any reservation based on residence or
institutional preference. However, a certain percentage of seats are allowed to
be reserved on the ground of institutional preference. But even in this regard,
so far as super specialties such as neurosurgery and cardiology are concerned
there should be no reservation at all even on the basis of institutional
preference and admissions should be granted purely on all-India basis.
Further, classification made on the basis of super-specialties may serve the
interests of the nation better, though interests of individual states may to a
small extent, be affected.
137. The need of a region or institution cannot prevail at the highest scale
of specialty where the best skill or talent must be hand-picked by selecting
them according to capability. At the level of Ph.D., M.D. or levels of higher
proficiency where international measure of talent is made, where losing one
great scientist or technologist in the making is a national loss, the
considerations we have expanded upon as important, lose their potency.
138. The inevitable conclusion is that the impugned Statute can be operative
only after excluding the creamy layer from identifiable OBCs. There has to be
periodic review of the classes who can be covered by the Statute. The
periodicity should be five years. To strike constitutional balance there is
need for making provision for suitable percentage for socially and economically
backward classes in the 27% fixed.
I 139. To sum up, the conclusions are as follows:
(1) For implementation of the impugned Statute creamy layer must be excluded.
(2) There must be periodic review as to the desirability of continuing
operation of the Statute. This shall be done once in every five years.
(3) The Central Government shall examine as to the desirability of fixing a
cut off marks in respect of the candidates belonging to the Other Backward
Classes (OBCs). By way of illustration it can be indicated that five marks
grace can be extended to such candidates below the minimum eligibility marks
fixed for general categories of students. This would ensure quality and merit
would not suffer. If any seats remain vacant after adopting such norms they
shall be filled up by candidates from general categories.
(4) So far as determination of backward classes is concerned, a Notification
should be issued by the Union of India. This can be done only after exclusion
of the creamy layer for which necessary data must be obtained by the Central
Government from the State Governments and Union Territories. Such Notification
is open to challenge on the ground of wrongful exclusion or inclusion.
Norms must be fixed keeping in view the peculiar features in different
States and Union Territories.
(5) There has to be proper identification of Other Backward Classes (OBCs.).
For identifying backward classes, the Commission set up pursuant to the
directions of this Court in Indra Sawhney No.1 has to work more effectively and
not merely decide applications for inclusion or exclusion of castes. While
determining backwardness, graduation (not technical graduation) or professional
shall be the standard test yardstick for measuring backwardness.
(6) To strike the constitutional balance it is necessary and desirable to
ear-mark certain percentage of seats out of permissible limit of 27% for
socially and economically backward classes.
(7) In the Constitution for the purposes of both Articles 15 and 16, caste
is not synonyms with class and this is clear from the paragraphs 782 and 783 of
Indra Sawhney No.1. However, when creamy layer is excluded from the caste, the
same becomes an identifiable class for the purpose of Articles 15 and 16.
(8) Stress has to be on primary and secondary education so that proper
foundation for higher education can be effectively laid.
(9) So far as the constitutional amendments are concerned:
(i) Articles 16(1) and 16(4) have to be harmoniously construed. The one is
not an exception to the other.
(ii) Articles 15(4) and 15(5) operate in different fields. Article 15(5)
does not render Article 15(4) inactive or inoperative.
(10) While interpreting the constitutional provisions, foreign decisions do
not have great determinative value. They may provide materials for deciding the
question regarding constitutionality. In that sense, the strict scrutiny test
is not applicable and indepth scrutiny has to be made to decide the constitutionality
or otherwise, of a statute.
(11) If material is shown to the Central Government that the Institution
deserves to be included in the Schedule, the Central Government must take an
appropriate decision on the basis of materials placed and on examining the
concerned issues as to whether Institution deserves to be included in the
(12) Challenge relating to private un-aided educational institutions has not
been examined because no such institution has laid any challenge. It is to be
noted that the petitioners have made submissions in the background of Article
19(6) of the Constitution. Since none of the affected institutions have made
any challenge we do not propose to consider it necessary to express any opinion
or decide on the question.
140. In view of the above-said conclusions, the writ petitions and the
Contempt Petition (Civil) No.112/2007 in W.P. (C) No.265/2006 are disposed of.