State of Andhra Pradesh & ANR Vs.
P. Sagar  INSC 82 (27 March 1968)
27/03/1968 SHAH, J.C.
CITATION: 1968 AIR 1379 1968 SCR (3) 565
CITATOR INFO :
RF 1971 SC2303 (25) R 1972 SC1375
(33,64,80,87,92) F 1973 SC 930 (22) RF 1975 SC 563 (14,21) F 1985 SC1495
Constitution of India Art. 15(1) and
(4)-State preparing a list of backward classes within the meaning -of cl. (4)Claiming
to have done so on advice of experts who were satisfied-relevant tests were
applied Not placing any material before court to consider validity of list
which exfacie included 'castes' and not classes-Whether court can hold such
list as valid.
By an order of the State Government, Andhra
Pradesh, issued on July 29, 1966, 20% of the total number of seats for
admission to medical colleges in the State were reserved, for members of the
backward classes described in a list prepared by the Government. This order and
the list were challenged in writ petitions before the High Court on the, ground
that another list published by the State Government on June 21, 1963
determining backward classes for the purpose of Art. 15(4) of the Constitution
had been declared invalid by the High Court in an earlier case as being violative
of Art. 15(1); it was contended that the State Government had adopted
substantially the same list of backward classes with slight modifications and
as the new list also made the reservation in favour of castes and not classes,
it infringed the guarantee under Art. 15(1). On behalf of the State Government
it was urged that caste is one of the relevant tests in determining
backwardness, and cannot be ignored in determining socially and educationally
backward classes and if a group has been classified as backward on other
relevent considerations, the classification is not liable to be challenged as
invalid on the ground that for the purpose of classifying, the designation of
caste is-given. It was stated in an affidavit on behalf of the State that the
new list had been prepared by a Cabinet sub-committee and approved by the
Cabinet after a detailed enquiry of the conditions of the castes in question
and on expert advice of the Director of Social Welfare as well as under the
guidance of the Law Secretary; and that they were both satisfied that the
correct tests were applied in the determination of the backward classes. The
High Court held that the reservations of seats for the members of the backward
classes described in the list prepared by the Government were in-,-Aid. The
State appealed to this Court by special leave.
HELD: dismissing the appeal, The impugned
list prepared by the State was ex-facie based on castes or communities and wag
substantially the same list which bad been struck down by the High Court as
invalid in the earlier case. No materials were placed on the record to enable
the Court to decide whether the criteria laid down for determining that the
list prepared by the Government conformed to the requirements of cf. (4) or
Art. 15 were followed.
Article 15 guarantees by the first clause a
fundamental right of farreaching importance. Clause (4) is an exception
engrafted upon the guarantee in cl. (1), but being id the nature of an
exemption 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 596 under cl. (4) of Art. 15, the mere 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. If a question arises whether a law which prima facie infringes a
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. [603 C-G].
Case law referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1336 of 1967.
Appeal by special leave from the judgment and
order dated October 7, 1966 of the Andhra Pradesh High Court in Writ Petition
No. 1268 of 1966.
P. Ram Reddy and A. V. V. Nair, for the
K.Narayana Rao and G. Narayana Rao, for the
The Judgment of -the Court was delivered by
Shah, J. Against the order passed by the HighCourt of Andhra Pradesh declaring
invalid the "reservation for backward classes under Rule 4A and 5A
respectively of the Telangana and the Andhra Rules, and the directions in
respect of the President's Scouts and. Guides", under Government orders
Nos. 1135 & 1136-Health, Housing & Municipal Administration Department
dated June 16, 1966, as modified by G.O. M.S. 1880 dated July 29, 1966 for the
Telangana region, and by G.O.M.S. 1786 dated August 2, 1966 for the Andhra Region,
the State of Andhra Pradesh has appealed to this Court with special leave.
The State of Andhra Pradesh is divided into
two areas-Telangana and Andhra areas. In the Telangana area there are two
Medical Colleges having in the aggregate 270 seats for entrants to the medical
degree course. In Andhra area there are four Medical Colleges having in the
aggregate 550 seats for new entrants. In admitting candidates for the medical
degree course by Government orders Nos. 1135 & 1136 Health, Housing and
Municipal Administration Department dated June 16, 1966, seats were reserved
for Central Government nominees, for N.C.C., A.C.C President's Scouts &
Guides, for candidates with sports and extracurricular proficiency, for
children of ex-Service army personnel, for children of displaced goldsmiths,
for candidates from Scheduled Castes and -Tribes, for women candidates, for
candidates appearing from H.S.C. Multipurpose I.S.C. & P.U.C. Examinations,
597 and for candidates who had secured the M.Sc. & B.Sc. degrees. By Government
order No. 1880 dated July 29, 1966, twenty per cent. of the total number of
seats were reserved for backward classes in each area, and pursuant thereto the
Telangana Rules were amended by G.O. M.S. No. 1784-Health and the Andhra Rules
were amended by G.O. M.S. No. 1783Health dated August 2, 1966. The Validity of
the Government orders Nos. 1135 & 1136 was challenged on the ground that
they infringed the fundamental freedoms guaranteed under Arts. 15(4), 16(4) and
29(2) of the Constitution. The High Court held that in reserving seats for
nominees of the Central Government and from other States, for cultural
scholars, for women, for graduates and for students from H.S.C. & P.U.C.
Courses, no fundamental rights were infringed, but the reservations for members
of the backward classes described in the list prepared by the Government of
Andhra Pradesh were invalid.
By Art. 15 of the Constitution, as originally
enacted, it was provided that "(1) The State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them.
(3)Nothing in this article shall prevent the
State from making my special provisions for women and children." Article
29(2) provided that "No citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of them.
By Art.. 46, which occurs in Ch. IV relating
to Directive Principles of State Policy, the State was enjoined to promote the
educational and economic interests of the weaker sections of the people, but
Arts.' 15 and 29 as originally framed prohibited the making of any
discrimination against any citizen on grounds only of religion,, race, caste,
sex, place, of birth or any of them. In the State of Madras v. Shrimati
Champakam Dorairajan(1) an order issued by the Government of the State of
Madras fixing the number of seats for particular communities for selection of
candidates for admission to the Engineering and Medical Colleges in the State
was challenged on the ground that it violated the guarantee against d
crimination under Art. 25(2) of the" Constitution. This Court held that
the Government order constituted a violation of the (1)  S.C.R. 525.
598 fundamental right guaranteed to the
citizens of India by Art. 29(2) of the Constitution, notwithstanding the
directive principles of State policy laid down in Part IV of the Constitution.
The Part thereafter added cl. (4) in Art.
15, by the Constitution (First Amendment)
Act, 1951, providing that:
"Nothing in this article or in clause
(2) of article 29 shall prevent the State from making any special provision for
the advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes." On July 31, 1962,
the State of Mysore, in supersession of all previous orders made under Art. I
5(4) divided backward classes into two categories : backward classes and more
backward classes, and reserved 68%of the seats in the Engineering and Medical
Colleges and other technical institutions for the educationally and socially
backward classes and the Scheduled Castes and Scheduled Tribes, and left 32%
seats for the merit pool. That order was challenged by a group of writ
petitions under Art. 32 of the Constitution before this Court. This Court in M.
R. Balaji & others v. State of 'Mysore(1) held that the order passed by the
State of Mysore "was a fraud on the constitutional power conferred on the
State by Art. 15(4)" and was liable to be quashed, because the order
categorised, contrary to the plain intendment of Art. 15(4), the backward
classes on the sole basis of caste. A similar order G.O. M.S. No. 1880-Health
issued by the State of Andhra Pradesh on June 21, 1963, notifying a list of
castes for the purpose of selecting candidates from the backward classes in the
Medical Colleges in the State of Andhra Pradesh was declared invalid by the
High Court of Andhra Pradesh on the ground that the order which classified the
backward classes solely on the basis of caste subverted the object of Art.
15(4) of the Constitution : see P. Sukhadev and others v. The Government of
Andhra Pradesh (2).
On February 3, 1964, the. previous order
issued by the State of Andhra Pradesh was cancelled. Thereafter it is claimed
by the' State of Andhra Pradesh that it took steps to prepare a fresh list of
backward classes consistently with the provisions of the Constitution. The
Chief Secretary of the Government of Andhra Pradesh has sworn in his affidavit
that the Council of Ministers appointed a Sub-Committee to draw up a list of
backward classes, inter alia, for the purpose of admission of students to
The Committee invited the Law Secretary and
the Director of Social Welfare to attend the meetings of the Sub-Committee, and
letters were written to the other States calling for information about the
criteria adopted by those States for determining backward classes for purposes
of Am. 15(4) and 16(4) of the (1)  Supp. 1 S.C.R. 439.
(2) (1966) 1 Andbra W.R. 294.
599 Constitution, that after considering the
replies received from the Chief Secretaries of the various States it was
resolved 'that the existing list of backward classes pertaining to Andhra and
Telangana areas he scrutinised with a view to selecting from that list those
castes or communities which are "considered backward on account of the low
standard of living, education, poverty, places of habitation, inferiority of
occupations followed etc "; that at another meeting it was resolved that
the, list of 146 backward communities prepared by the Director be rearranged in
"the order of priority in consultation with the Law Secretary, taking into
consideration the criteria given by Law Secretary in his note to the Cabinet
Sub-Committee and that in doing so such of the criteria as capable of being
practically possible for consideration may be taken into account", and
accordingly the Law Secretary and the Director of Social Welfare considered the
representations made by certain communities to the Government from time to time
and "drew up a list of the order of priority as called for by the Cabinet
Sub-Committee", that thereafter the Cabinet SubCommittee made its
recommendations which were considered by the Council of Ministers on July 4,
1966, and that the Council of Ministers considered the social, educational and
economic conditions of the backward classes named in the lists submitted to
them, and dealt with each individual class and deleted certain items or classes
in the lists, changed the denomination of certain classes "for the more
premise effectuation of concessions to those classes only who really need
them", and consolidated the backward classes into one list, ruling out the
priorities suggested by the Director of Social Welfare in accordance with the
opinion of the Cabinet Sub-Committee, and thereafter published resolution No.
G.O. 1880 pursuant to which the rules were amended reserving 20% of the seats
for the backward classes mentioned in the list prepared by the Cabinet of the
The list prepared on the basis of
reservations for socially and educationally backward classes is indisputably a
list community wise. On behalf of the petitioners it was contended in the High
Court that the Government of Andhra Pradesh had adopted the same list of
backward classes which was struck down by the High Court in P. Sukhadev's caw()
with some slight modifications and the new list also having made a reservation
in favour of castes and not classes, it infringed the guarantee Under Art.
15(1). On behalf of the State it was urged that caste is one of the relevant
tests in determining backwardness, and cannot be ignored in determining the
socially and educationally backward classes:
if a group has been classified as backward on
other relevant considerations, the classification is not liable to be changed
as invalid on the ground that for the purpose of classifying the designation of
caste 'is given. The High Court held that the earlier G.O. was struck down (1)
(1966) 1 Andhra W.R. 294.
600 in P. Cukhadev's case(') on the ground
that it was based on caste alone, and since the G.O. under challenge was again
prepared on the same basis it could not be sustained as falling within the
exception provided in Art. 15(4).
Counsel for the State contends that the High
Court erred in holding that the impugned rules reserving seats for backward
classes made caste the determining factor.
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 in cl. (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 a pear that the beneficiaries of the special
provision are classes which are backward socially and educationally and they
are other than the Scheduled Castes and Scheduled Tribes, and that the
provision made .is for their advancement. Reservation may be adopted to advance
the interests of weaker sections of society, but in doing so, care must be
taken to see that deserving and qualified candidates are -not excluded from admission,
to higher educational institutions. The criterion for determining-the
backwardness Must not be based solely on religion, race, caste, sex, or place
of birth, and, the backwardness being social, and educational must be similar
to the backwardness from which the Scheduled Castes and the Scheduled Tribes
suffer. These are the principles which have been enunciated in the decision of
this Court in M. R. Balaji's case(3) and R. Chitralekha & Another v. State
of Mysore.and. others(2). In R. Chitralekha's case (2), Subba Rao, J., speaking
for the majority of the Court observed at p. 388 (1) (1963) Supp.1 S.C.R.439..
(2) (1964) 6 S.C.R.368 601 .lm15 "The
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 cl. (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." In a recent judgment of this Court P.
Rajendran & Ors. v. The State of Madras and others('), Wanchoo, C.J.,
speaking for the Court observed :
". . . 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). 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." That case makes no departure from the rule enunciated
in the earlier cases.
The list dated June 21, 1963, of castes
prepared by the Andhra Pradesh Government to determine backward classes for the
purpose of Art. 15(4) was declared invalid by the High Court of' Andhra Pradesh
in P. Sukhadev's case('). A fresh list was published under the amended rules
with some modifications, but the (1)  2 S.C.R. 786.
(2)  1 Andhra W.R. 294.
602 basic scheme of the list was apparently
not altered. It is true that the affidavits filed by the Chief Secretary in the
High Court and the Director of Social Welfare in this Court have set out the
steps taken for preparing the Est of backward classes. It is also stated in the
affidavit of the Director of Social Welfare that he considered the
representations made to him, consulted the Law Secretary and certain
publications relating to the study of backward classes e.g. Thurston's
"Caste and Tribes" and SirajulHasan's "Castes and Tribes",
and made his recommendations which were modified by the Sub-Committee appointed
by the Council of Ministers and ultimately the Council of Ministers prepared a
final list of backward classes. But before the High Court the materials which
the Cabinet Sub-Committee or the Council of Ministers considered were not
placed, nor was any evidence led about the -criteria adopted by them for the
purpose of determining the backward classes. The High Court observed :
"A perusal of this affidavit (Chief
Secretary's affidavit) as well as that of the Director of Social Welfare,. .
.which are filed on behalf of the Government do not say what was the material
placed before the Cabinet Sub-Committee or the Council of Ministers, from which
we could conclude that the criteria laid down by their Lordships of the Supreme
Court have been applied in preparing the list of backward classes.
After referring to the opinion of the Law
Secretary and the views ,of the Director of Social Welfare they observed:
".... We are not able to ascertain
whether any material, and if so, what material was placed before the Cabinet
Sub-Committee, upon which the list of backward classes was drawn. On the other
hand, it is stated -that the Law Secretary and the Director of Social Welfare
sat together and drew up a list, the former specifying the legal requirements
and the latter as an expert advising on the social and educational backwardness
of class or classes." It was urged before the High Court that expert
knowledge of the Director of Social Welfare and of the Law Secretary was
brought to bear upon the consideration of the relevant materials in the
preparation of the list and they were satisfied that the correct tests were
applied in the determination of backward classes and on that -account the list
should be accepted by the High Court. The High Court in dealing with the
".... the impugned backward classes list
cannot be and has not been sustained by the Government as 603 coming within the
exception provided in Art.
15(4) on any material placed before this
Court. In fact, there is a total absence of any material, from which we can say
that the Government applied the criteria enunciated by their Lordships of the
Supreme Court in the above referred cases, in preparing the list of backward
classes. We cannot accept the contention of the learned Advocate General that
"once there is proof that the Government bona fide considered the matter
it is sufficient". Acceptance of this argument would make for
arbitrariness, absolving the party on whom the burden of proof to bring it
within the exception rests, from proving it.
The mere fact that the act is bona fide and
that there was total absence of mala fides, is not relevant." 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 cl. (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.
The High Court has repeatedly observed in the
course of their judgment that no materials at all were placed on the record to
enable them to decide whether the criteria laid down by this Court for
determining that the list prepared by the Government conformed to the
requirements of cl. (4) of Art. 15 were followed. On behalf of the State it was
merely asserted that an enquiry was in fact made with the aid of expert
officers and the Law Secretary and the question was examined from all points of
view by the L7Sup.C.I/68-14 604 officers of the State, by the Cabinet
Sub-Committee and by the Cabinet. But whether in that examination the correct
criteria were applied is not a matter on which any assumption could be made
especially when the list prepared is exfacie based on castes or communities and
in substantially the list which was struck down by the High Court in P.
Sukhadev's case(1) Honesty of purpose of those who prepared and published the
list was not and is not challenged, but the validity of a law which apparently
infringes the fundamental rights of citizens cannot be upheld merely because
the law-maker was satisfied that what he did was right or that he believes that
he acted in manner consistent with the constitutional guarantees of the
citizen. The test of the validity of a law alleged to infringe the fundamental
rights of a citizen or any. act done in execution of that law lies not in the
belief of the maker of the law or of the person executing the law, but in the
demonstration by evidence and argument before the Courts that the guaranteed
right is not infringed.
The appeal therefore fails and is dismissed.,
R.K.P.S. Appeal dismissed.
(1)  1 Andhra W.R. 294.