Constitutional Validity of Reservations for OBCs inPublic EmploymentIndra Sawhney v. Union of IndiaAIR 1993 SC 477[MH Kania, CJ and MN Venkatachaliah, S Ratnavel Pandian, Dr TK Thommen, AM Ahmadi, KuldipSingh, PB Sawant, RM Sahai and BP Jeevan Reddy, JJ]

Case Summary

*Citation*
*Keywords*
*Facts*
*Issues*
*Contentions*
*Law Points*
*Judgement*
*Ratio Decidendi & Case Authority*

Full Case Details

B.P. JEEVAN REDDY, J. – 659. By an Order made by the President of India, in the year
1979, under Article 340 of the Constitution, a Backward Class Commission was appointed to
investigate the conditions of socially and educationally backward classes within the territory
of India, which Commission is popularly known as Mandal Commission. The terms of
reference of the Commission were:
“(i) to determine the criteria for defining the socially and educationally
backward classes;
(ii) to recommend steps to be taken for the advancement of the socially and
educationally backward classes of citizens so identified;
(iii) to examine the desirability or otherwise of making provision for the
reservation of appointments or posts in favour of such backward classes of citizens
which are not adequately represented in public services and posts in connection with
the affairs of the Union or of any State; and
(iv) present to the President a report setting out the facts as found by them and
making such recommendations as they think proper.”

In para 11.23 the Commission sets out the eleven Indicators/Criteria evolved by it
for determining social and educational backwardness. Paras 11.23, 11.24 and 11.25 are
relevant and may be set out in full:
“11.23. As a result of the above exercise, the Commission evolved eleven
‘Indicators’ or ‘criteria’ for determining social and educational backwardness. These
11 ‘Indicators’ were grouped under three broad heads, i.e., Social, Educational and
Economic. They are:
A. Social
(i) Castes/Classes considered as socially backward by others.
(ii) Castes/Classes which mainly depend on manual labour for their livelihood.
(iii) Castes/Classes where at least 25% females and 10% males above the State
average get married at an age below 17 years in rural areas and at least 10% females
and 5% males do so in urban areas.
(iv) Castes/Classes where participation of females in work is at least 25% above the
State average.
B. Educational
(v) Castes/Classes where the number of children in the age group of 5-15 years who
never attended school is at least 25% above the State average.
89
(vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years
is at least 25% above the State average.
(vii) Castes/Classes amongst whom the proportion of matriculates is at least 25%
below the State average.
C. Economic
(viii) Castes/Classes where the average value of family assets is at least 25% below
the State average.
(ix) Castes/Classes where the number of families living in Kutcha houses is
at least 25% above the State average.
(x) Castes/Classes where the source of drinking water is beyond half a
kilometre for more than 50% of the households.
(xi) Castes/Classes where the number of households having taken
consumption loan is at least 25% above the State average.
11.24 As the above three groups are not of equal importance for our purpose,
separate weightage was given to ‘Indicators’ in each group. All the Social
‘Indicators’ were given a weightage of 3 points each. Educational ‘Indicators’ a
weightage of 2 points each and Economic ‘Indicators’ a weightage of one point each.
Economic, in addition to Social and Educational Indicators, were considered
important as they directly flowed from social and educational backwardness. This
also helped to highlight the fact that socially and educationally backward classes are
economically backward also.
11.25 It will be seen that from the values given to each Indicator, the total score
adds up to 22. All these 11 Indicators were applied to all the castes covered by the
survey for a particular State. As a result of this application, all castes which had a
score of 50% (i.e., 11 points) or above were listed as socially and educationally
backward and the rest were treated as ‘advanced’. (It is a sheer coincidence that the
number of indicators and minimum point score for backwardness, both happen to be
eleven). Further, in case the number of households covered by the survey for any
particular caste were below 20, it was left out of consideration, as the sample was
considered too small for any dependable inference.”
Chapter XII deals with “Identification of OBCs”. In the first instance, the
Commission deals with OBCs among Hindu communities. It says that it applied several tests
for determining the SEBCs like stigmas of low-occupation, criminality, nomadism, beggary
and untouchability besides inadequate representation in public services. The multiple
approach adopted by the Commission is set out in para 12.7 which reads:
“12.7 Thus, the Commission has adopted a multiple approach for the preparation
of comprehensive lists of Other Backward Classes for all the States and Union
Territories. The main sources examined for the preparation of these lists are:
(i) Socio-educational field survey;
(ii) Census Report of 1961 (particularly for the identification of primitive tribes,
aboriginal tribes, hill tribes, forest tribes and indigenous tribes);
90
(iii) Personal knowledge gained through extensive touring of the country and
receipt of voluminous public evidences as described in Chapter X of this Report;
and
(iv) Lists of OBCs notified by various State Governments.”
The Commission next deals with OBCs among non-Hindu communities. In
paragraphs 12.11 to 12.16 the Commission refers to the fact that even among Christian,
Muslim and Sikh religions, which do not recognise caste, the caste system is prevailing
though without religious sanction. After giving a good deal of thought to several difficulties
in the way of identifying OBCs among non-Hindus, the Commission says, it has evolved a
rough and ready criteria, viz., (1) all untouchables converted to any non-Hindu religion and
(2) such occupational communities which are known by the name of their traditional
hereditary occupation and whose Hindu counterparts have been included in the list of Hindu
OBCs – ought to be treated as SEBCs. The Commission then sought to work out the estimated
population of the OBCs in the country and arrived at the figure of 52%. Paras 12.19 and 12.22
may be set out in full in view of their relevancy:
“12.19 Systematic caste-wise enumeration of population was introduced by the
Registrar General of India in 1881 and discontinued in 1931. In view of this, figures
of caste-wise population beyond 1931 are not available. But assuming that the inter
se rate of growth of population of various castes, communities and religious groups
over the last half a century has remained more or less the same, it is possible to work
out the percentage that all these groups constitute of the total population of the
country. “
“12.22 From the foregoing it will be seen that excluding Scheduled Castes and
Scheduled Tribes, Other Backward Classes constitute nearly 52% of the Indian
population.
Percentage Distribution of Indian Population by Caste and Religious Groups
S. No. Group Name Percentage of total
population
I. Scheduled Castes and Scheduled Tribes
A-1 Scheduled Castes
A-2 Scheduled Tribes
15.05
07.51
Total of ‘A’ 22.56
II. Non-Hindu Communities, Religious Groups, etc
B-1 Muslims (other than STs)
B-2 Christians (other than STs)
B-3 Sikhs (other than SCs &
STs)
B-4 Budhists (other than STs)
B-5 Jains
11.19 (0.02)†
02.16 (0.44) †
01.67 (0.22) †
00.67 (0.03) †
00.47
Total of ‘B’ 16.16
91
III. Forward Hindu Castes & Communities
C-1 Brahmins (including
Bhumihars)
C-2 Rajputs
C-3 Marathas
C-4 Jats
C-5 Vaishyas-Bania, etc.
C-6 Kayasthas
C-7 Other forward Hindu castes,
groups
05.52
03.90
02.21
01.00
01.07
01.88
02.00
Total of ‘C’ 17.58
TOTAL OF ‘A’, ‘B’ & ‘C’ 56.30
IV. Backward Hindu Castes & Communities
D. Remaining Hindu castes/groups which come
in the category of “Other Backward Classes”
43.70‡
V. Backward Non-Hindu Communities
E. 52% of religious groups under Section B may
also be treated as OBCs
08.40
F. The approximate derived population of Other
Backward Classes including non-Hindu
communities
52% (Aggregate of D and E,
rounded)”
† Figures in brackets give these population of SC & ST among the non-Hindu communities.
‡ This is a derived figure.
Chapter XIII contains various recommendations including reservations in services.
In view of the decisions of the Supreme Court limiting the total reservation to 50%, the
Commission recommended 27% reservation in favour of OBCs (in addition to 22.5% already
existing in favour of SCs and STs). It recommended several measures for improving the
condition of these backward classes. Chapter XIV contains a summary of the report.
The Office Memorandum dated August 13, 1990
No action was, however, taken on the basis of the Mandal Commission Report until
the issuance of the Office Memorandum on August 13, 1990. On that day, the then Prime
Minister, Shri V.P. Singh made a statement in the Parliament in which he stated inter alia as
follows:
“After all, if you take the strength of the whole of the government employees as a
proportion of the population, it will be 1% or 1 1/2. I do not know exactly, it may be
less than 1%. We are under no illusion that this 1% of the population, or a fraction of
it will resolve the economic problems of the whole section of 52%. No. We
92
consciously want to give them a position in the decision-making of the country, a
share in the power structure. We talk about merit. What is the merit of the system
itself? That the section which has 52% of the population gets 12.55% in government
employment. What is the merit of the system? That in Class I employees of the
government it gets only 4.69%, for 52% of the population in decision-making at the
top echelons it is not even one-tenth of the population of the country; in the power
structure it is hardly 4.69%. I want to challenge first the merit of the system itself
before we come and question on the merit, whether on merit to reject this individual
or that. And we want to change the structure basically, consciously, with open eyes.
And I know when changing the structures comes, there will be resistance . . . .
What I want to convey is that treating unequals as equals is the greatest injustice.
And, correction of this injustice is very important and that is what I want to
convey. Here, the National Front Government’s commitment for not only change of
government, but also change of the social order, is something of great significance to
all of us; it is a matter of great significance. Merely making programmes of economic
benefit to various sections of the society will not do . . . .
There is a very big force in the argument to involve the poorest in the power
structure. For a lot of time we have acted on behalf of the poor. We represent the
poor . . . .
Let us forget that the poor are begging for some crumbs. They have suffered it
for thousands of years. Now they are fighting for their honour as a human being . . . .
A point was made by Mahajanji that if there are different lists in different States
how will the Union List harmonise? It is so today in the case of the Scheduled Castes
and the Scheduled Tribes. That has not caused a problem. On the same pattern, this
will be there and there will be no problem.”
The Office Memorandum dated August 13, 1990 reads as follows:
OFFICE MEMORANDUM
Subject: Recommendations of the Second Backward Classes Commission (Mandal
Report) – Reservation for Socially and Educationally Backward Classes in Services
under the Government of India.
In a multiple undulating society like ours, early achievement of the objective of
social justice as enshrined in the Constitution is a must. The Second Backward
Classes Commission called the Mandal Commission was established by the then
Government with this purpose in view, which submitted its report to the Government
of India on December 31, 1980.
Government have carefully considered the report and the recommendations of
the Commission in the present context regarding the benefits to be extended to the
socially and educationally backward classes as opined by the Commission and are of
the clear view that at the outset certain weightage has to be provided to such classes
in the services of the Union and their public undertakings. Accordingly orders are
issued as follows:
(i) 27% of the vacancies in civil posts and services under the Government of
India shall be reserved for SEBC.
93
(ii) The aforesaid reservation shall apply to vacancies to be filled by direct
recruitment. Detailed instructions relating to the procedures to be followed for
enforcing reservation will be issued separately.
(iii) Candidates belonging to SEBC recruited on the basis of merit in an open
competition on the same standards prescribed for the general candidates shall not be
adjusted against the reservation quota of 27%.
(iv) The SEBC would comprise in the first phase the castes and communities
which are common to both the lists in the report of the Mandal Commission and the
State Governments’ lists. A list of such castes/communities is being issued
separately.
(v) The aforesaid reservation shall take effect from 7-8-1990. However, this
will not apply to vacancies where the recruitment process has already been initiated
prior to the issue of these orders.
Similar instructions in respect of public sector undertakings and financial
institutions including public sector banks will be issued by the Department of Public
Enterprises and Ministry of Finance respectively.
Sd/- (Smt Krishna Singh)
Joint Secretary to the Govt. of India”
Writ petitions were filed in this Court questioning the said Memorandum along with
applications for staying the operation of the Memorandum. It was stayed by this Court.
After the change of the government at the Centre following the general election held
in the first-half of 1991, another Office Memorandum was issued on September 25, 1991
modifying the earlier Memorandum dated August 13, 1990. The later Memorandum reads as
follows:
The Office Memorandum dated September 25, 1991
Subject: Recommendation of the Second Backward Classes Commission (Mandal
Report) – Reservation for Socially and Educationally Backward Classes in Services
under the Government of India.
The undersigned is directed to invite the attention to O.M. of even number dated
the 13th August 1990, on the above-mentioned subject and to say that in order to
enable the poorer sections of the SEBCs to receive the benefits of reservation on a
preferential basis and to provide reservation for other economically backward
sections of the people not covered by any of the existing schemes of reservation,
Government have decided to amend the said memorandum with immediate effect as
follows:
(i) Within the 27% of the vacancies in civil posts and services under the
Government of India reserved for SEBCs, preference shall be given to candidates
belonging to the poorer sections of the SEBCs. In case sufficient number of such
candidates are not available, unfilled vacancies shall be filled by the other SEBC
candidates.
(ii) 10% of the vacancies in civil posts and services under the Government of
India shall be reserved for other economically backward sections of the people who
are not covered by any of the existing schemes of reservation.
94
(iii) The criteria for determining the poorer sections of the SEBCs or the
other economically backward sections of the people who are not covered by any of
the existing schemes of reservations are being issued separately.
The O.M. of even number dated the 13th August 1990, shall be deemed to have
been amended to the extent specified above.
Sd/- (A.K. Harit)
Dy. Secretary to the Government of India”
Till now, the Central Government has not evolved the economic criteria as
contemplated by the later Memorandum, though the hearing of these writ petitions was
adjourned on more than one occasion for the purpose. Some of the writ petitions have
meanwhile been amended challenging the later Memorandum as well. Let us notice at this
stage what do the two memorandums say, read together. The first provision made is: 27% of
vacancies to be filled up by direct recruitment in civil posts and services under the
Government of India are reserved for backward classes. Among the members of the backward
classes preference has to be given to candidates belonging to the poorer sections. Only in case
sufficient number of such candidates are not available, will the unfilled vacancies be filled by
other backward class candidates. The second provision made is: Backward class candidates
recruited on the basis of merit in open competition along with general candidates shall not be
adjusted against the quota of 27% reserved for them. Thirdly, it is provided that backward
classes shall mean those castes and communities which are common to the list in the report of
the Mandal Commission and the respective State Government’s list. It may be remembered
that Mandal Commission has prepared the list of backward classes State-wise. Lastly, it is
provided that 10% of the vacancies shall be reserved for other economically backward
sections of the people who are not covered by any of the existing schemes of reservations. As
stated above, the criteria for determining the poorer sections among the backward classes or
for determining the other economically backward sections among the non-reserved category
has so far not been evolved. Though the first Memorandum stated that the orders made
therein shall take effect from August 7, 1990, they were not in fact acted upon on account of
the orders made by this Court.
Issues for Consideration
[The court re-framed the questions posed on behalf of the parties]. The re-framed
questions are:
(a) Whether the ‘provision’ contemplated by Article 16(4) must necessarily be made
by the legislative wing of the State?
(b) If the answer to clause (a) is in the negative, whether an executive order making such
a provision is enforceable without incorporating it into a rule made under the proviso to
Article 309?
(a) Whether clause (4) of Article 16 is an exception to clause (1) of Article 16?
(b) Whether clause (4) of Article 16 is exhaustive of the special provisions that can be
made in favour of ‘backward class of citizens’? Whether it is exhaustive of the special
provisions that can be made in favour of all sections, classes or groups?
(c) Whether reservations can be made under clause (1) of Article 16 or whether it
permits only extending of preferences/concessions?
95
(a) What does the expression ‘backward class of citizens’ in Article 16(4) means?
(b) Whether backward classes can be identified on the basis and with reference to
caste alone?
(c) Whether a class, to be designated as a backward class, should be situated similarly
to the SCs/STs?
(d) Whether the ‘means’ test can be applied in the course of identification of backward
classes? And if the answer is yes, whether providing such a test is obligatory?
(a) Whether the backward classes can be identified only and exclusively with
references to economic criteria?
(b) Whether a criteria like occupation-cum-income without reference to caste
altogether, can be evolved for identifying the backward classes?
Whether the backward classes can be further categorised into backward and more
backward categories?
To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji is a binding rule or only a rule of
caution or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under clause (4) of
Article 16 or whether it takes in all types of reservations that can be provided under Article
16?
(c) Further while applying 50% rule, if any, whether an year should be taken as a unit
or whether the total strength of the cadre should be looked to?
(d) Whether Devadasan was correctly decided?
Whether Article 16 permits reservations being provided in the matter of promotions?
Whether reservations are anti-meritarian? To what extent are Articles 335, 38(2) and
46 of the Constitution relevant in the matter of construing Article 16?
Whether the extent of judicial review is restricted with regard to the identification of
Backward Classes and the percentage of reservations made for such classes to a demonstrably
perverse identification or a demonstrably unreasonable percentage?
Whether the distinction made in the second Memorandum between ‘poorer sections’
of the backward classes and others permissible under Article 16?
Whether the reservation of 10% of the posts in favour of ‘other economically
backward sections of the people who are not covered by any of the existing schemes of the
reservations’ made by the Office Memorandum dated September 25, 1991permissible under
Article 16?
Decisions of this Court on Articles 16 and 15
Soon after the enforcement of the Constitution two cases reached this Court from the
State of Madras – one under Article 15 and the other under Article 16. Both the cases were
decided on the same date and by the same Bench. The one arising under Article 15 is State of
Madras v. Champakam Dorairajan [AIR 1951 SC 226] and the other arising under Article
96
16 is Venkataramana v. State of Madras. By virtue of certain orders issued prior to coming
into force of the Constitution, – popularly known as ‘Communal G.O.’ – seats in the Medical
and Engineering Colleges in the State of Madras were apportioned in the following manner:
Non-Brahmin (Hindus) – 6, Backward Hindus – 2, Brahmin – 2, Harijan – 2, Anglo-Indians
and Indian Christians – 1, Muslims – 1. Even after the advent of the Constitution, the G.O. was
being acted upon which was challenged by Smt Champakam as violative of the fundamental
rights guaranteed to her by Article 15(1) and 29(2) of the Constitution of India. A full Bench
of Madras High Court declared the said G.O. as void and unenforceable with the advent of the
Constitution. The State of Madras brought the matter in appeal to this Court. A Special Bench
of seven Judges heard the matter and came to the unanimous conclusion that the allocation of
seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the refusal
to admit the respondent (writ petitioner) notwithstanding her higher marks, was based only on
the ground of caste. The State of Madras sought to sustain the G.O. with reference to Article
46 of the Constitution. Indeed the argument was that Article 46 overrides Articles 29(2). This
argument was rejected. The Court pointed out that while in the case of employment under the
State, clause (4) of Article 16 provides for reservations in favour of backward class of
citizens, no such provision was made in Article 15.
In the matter of appointment to public services too, a similar Communal G.O. was in
force in the State of Madras since prior to the Constitution. In December, 1949, the Madras
Public Service Commission invited applications for 83 posts of District Munsifs, specifying at
the same time that the selection of the candidates would be made from the various castes,
religions and communities as specified in the Communal G.O. The 83 vacancies were
distributed in the following manner: Harijans – 19, Muslims – 5, Christians – 6, Backward
Hindus – 10, Non-Brahmin (Hindus) – 32 and Brahmins – 11. The petitioner Venkataraman (it
was a petition under Article 32 of the Constitution) applied for and appeared at the interview
and the admitted position was that if the provisions of the Communal G.O. were to be
disregarded, he would have been selected. Because of the G.O., he was not selected (he
belonged to Brahmin community). Whereupon he approached this Court. S.R. Das, J
speaking for the Special Bench referred to Article 16 and in particular to clause (4) thereof
and observed:
“Reservation of posts in favour of any backward class of citizens cannot,
therefore, be regarded as unconstitutional.”
He proceeded to hold:
“The Communal G.O. itself makes an express reservation of seats for Harijans
and Backward Hindus. The other categories, namely, Muslims, Christians, nonBrahmin Hindus and Brahmins must be taken to have been treated as other than
Harijans and Backward Hindus. Our attention was drawn to a schedule of Backward
Classes set out in Sch. III to Part I of the Madras Provincial and Subordinate Service
Rules. It was, therefore, argued that Backward Hindus would mean Hindus of any of
the communities mentioned in that Schedule. It is, in the circumstances, impossible
to say that classes of people other than Harijans and Backward Hindus can be called
Backward Classes. As regards the posts reserved for Harijans and Backward Hindus
it may be said that the petitioner who does not belong to those two classes is regarded
as ineligible for those reserved posts not on the ground of religion, race, caste etc. but
97
because of the necessity for making a provision for reservation of such posts in
favour of the backward class of citizens, but the ineligibility of the petitioner for any
of the posts reserved for communities other than Harijans and Backward Hindus
cannot but be regarded as founded on the ground only of his being a Brahmin. For
instance, the petitioner may be far better qualified than a Muslim or a Christian or a
non-Brahmin candidate and if all the posts reserved for those communities were open
to him, he would be eligible for appointment, as is conceded by the learned
Advocate-General of Madras, but, nevertheless, he cannot expect to get any of those
posts reserved for those different categories only because he happens to be a
Brahmin. His ineligibility for any of the posts reserved for the other communities,
although he may have far better qualifications than those possessed by members
falling within those categories, is brought about only because he is a Brahmin and
does not belong to any of those categories. This ineligibility created by the
Communal G.O. does not appear to us to be sanctioned by clause (4) of Article 16
and it is an infringement of the fundamental right guaranteed to the petitioner as an
individual citizen under Article 16(1) and (2). The Communal G.O., in our opinion,
is repugnant to the provisions of Article 16 and is as such void and illegal.”
Shri Ram Jethmalani, the learned counsel appearing for the respondent State of
Bihar placed strong reliance on the above passage. He placed before us an extract of the
Schedule of the backward classes appended to the Madras Provincial and Subordinate
Services Rule, 1942. He pointed out that clause (3)(a) in Rule 2 defined the expression
backward classes to mean “the communities mentioned in Schedule III to this part”, and that
Schedule III is exclusively based upon caste. The Schedule describes the communities
mentioned therein under the heading “Race, Tribe or Caste”. It is pointed out that when the
said Schedule was substituted in 1947, the basis of classification still remained the caste,
though the heading “Race, Tribe or Caste” was removed. Mr Jethmalani points out that the
Special Bench took note of the fact that Schedule III was nothing but a collection of certain
‘communities’, notified as backward classes and yet upheld the reservation in their favour.
According to him, the decision in Venkataramana clearly supports the identification of
backward classes on the basis of caste. The Communal G.O. was struck down, he submits,
only in so far as it apportioned the remaining vacancies between sections other than Harijans
and backward classes.
Soon after the said two decisions were rendered Parliament intervened and in
exercise of its constituent power, amended Article 15 by inserting clause (4), which reads:
“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 Scheduled Tribes.”
It is worthy of notice that the Parliament, which enacted the First Amendment to the
Constitution, was in fact the very same Constituent Assembly which had framed the
Constitution. The speech of Dr Ambedkar on the occasion is again instructive. He said:
“Then with regard to Article 16, clause (4), my submission is this that it is really
impossible to make any reservation which would not result in excluding somebody
who has a caste. I think it has to be borne in mind and it is one of the fundamental
principles which I believe is stated in Mulla’s edition on the very first page that there
98
is no Hindu who has not a caste. Every Hindu has a caste – he is either a Brahmin or a
Mahratta or a Kundby or a Kumbhar or a carpenter. There is no Hindu – that is the
fundamental proposition – who has not a caste. Consequently, if you make a
reservation in favour of what are called backward classes which are nothing else but
a collection of certain castes, those who are excluded are persons who belong to
certain castes. Therefore, in the circumstances of this country, it is impossible to
avoid reservation without excluding some people who have got a caste.”
After the enactment of the First Amendment the first case that came up before this
Court is Balaji v. State of Mysore [AIR 1963 SC 649]. (In the year 1961, this Court decided
the General Manager, Southern Railway v. Rangachari AIR 1962 SC 36, but that related to
reservations in favour of the Scheduled Castes and Scheduled Tribes in the matter of
promotion in the Railways. Rangachari will be referred to at an appropriate stage later.) In
the State of Karnataka, reservations were in force since a few decades prior to the advent of
the Constitution and were being continued even thereafter. On July 26, 1958 the State of
Mysore issued an order under Article 15(4) of the Constitution declaring all the communities
excepting the Brahmin community as socially and educationally backward and reserving a
total of 75% seats in educational institutions in favour of SEBCs and SCs/STs. Such orders
were being issued every year, with minor variation in the percentage of reservations. On July
13, 1962, a similar order was issued wherein 68% of the seats in all Engineering and Medical
Colleges and Technical Institutions in the State were reserved in the favour of the SEBCs,
SCs and STs. SEBCs were again divided into two categories – backward classes and more
backward classes. The validity of this order was questioned under Article 32 of the
Constitution. While striking down the said order this Court enunciated the following
principles:
(1) Clause (4) of Article 15 is a proviso or an exception to clause (1) of Article 15 and
to clause (2) of Article 29;
(2) For the purpose of Article 15(4), backwardness must be both social and
educational. Though caste in relation to Hindus may be a relevant factor to consider in
determining the social backwardness of a class of citizens, it cannot be made the sole and
dominant test. Christians, Jains and Muslims do not believe in caste system; the test of
caste cannot be applied to them. Inasmuch as identification of all backward classes under
the impugned order has been made solely on the basis of caste, it is bad.
(3) The reservation made under clause (4) of Article 15 should be reasonable. It
should not be such as to defeat or nullify the main rule of equality contained in clause (1).
While it is not possible to predicate the exact permissible percentage of reservations, it
can be stated in a general and broad way that they should be less than 50%.
(4) A provision under Article 15(4) need not be in the form of legislation; it can be
made by an executive order.
(5) The further categorisation of backward classes into backward and more backward
is not warranted by Article 15(4).
It must be remembered that Balaji was a decision rendered under and with reference
to Article 15 though it contains certain observations with respect to Article 16 as well.
Soon after the decision in Balaji this Court was confronted with a case arising under
Article 16 – Devadasan v. Union of India [AIR 1964 SC 179]. This was also a petition under
99
Article 32 of the Constitution. It related to the validity of the ‘carry-forward’ rule obtaining in
Central Secretariat Service. The reservation in favour of Scheduled Castes was twelve and
half per cent while the reservation in favour of Scheduled Tribes was five per cent. The
‘carry-forward’ rule considered in the said decision was in the following terms:
“If a sufficient number of candidates considered suitable by the recruiting
authorities, are not available from the communities for whom reservations are made
in a particular year, the unfilled vacancies should be treated as unreserved and filled
by the best available candidates. The number of reserved vacancies, thus, treated as
unreserved will be added as an additional quota to the number that would be reserved
in the following year in the normal course; and to the extent to which approved
candidates are not available in that year against this additional quota, a corresponding
addition should be made to the number of reserved vacancies in the second following
year.”
Because sufficient number of SC/ST candidates were not available during the earlier years the
unfilled vacancies meant for them were carried forward as contemplated by the said rule and
filled up in the third year – that is in the year 1961. Out of 45 appointments made, 29 went to
Scheduled Castes and Scheduled Tribes. In other words, the extent of reservation in the third
year came to 65%. The rule was declared unconstitutional by the Constitution Bench, with
Subba Rao, J dissenting. The majority held that the carry-forward rule which resulted in more
than 50% of the vacancies being reserved in a particular year, is bad. The principle enunciated
in Balaji regarding 50% was followed. Subba Rao, J in his dissenting opinion, however,
upheld the said rule. The learned Judge observed:
“The expression, ‘nothing in this article’ is a legislative device to express its
intention in a most emphatic way that the power conferred thereunder is not limited
in any way by the main provision but falls outside it. It has not really carved out an
exception, but has preserved a power untrammelled by the other provisions of the
Article.”
The learned Judge opined that once a class is a backward class, the question whether it is
adequately represented or not is left to the subjective satisfaction of the State and is not a
matter for this Court to prescribe.
We must, at this stage, clarify that a ‘carry-forward’ rule may be in a form different
than the one considered in Devadasan. The rule may provide that the vacancies reserved for
Scheduled Castes or Scheduled Tribes shall not be filled up by general (open competition)
candidates in case of non-availability of SC/ST candidates and that such vacancies shall be
carried forward.
In the year 1964 another case from Mysore arose, again under Article 15. The
Mysore Government had by an order defined backward classes on the basis of occupation and
income, unrelated to caste. Thirty per cent of seats in professional and technical institutions
were reserved for them in addition to eighteen per cent in favour of SCs and STs. One of the
arguments urged was that the identification done without taking the caste into consideration is
impermissible. The majority speaking through Subba Rao, J, held that the identification or
classification of backward classes on the basis of occupation-cum-income, without reference
to caste, is not bad and does not offend Article 15(4).
100
During the years 1968 to 1971, this Court had to consider the validity of
identification of backward classes made by Madras and Andhra Pradesh Governments. P.
Rajendran v. State of Madras [AIR 1968 SC 1012] related to specification of socially and
educationally backward classes with reference to castes. The question was whether such an
identification infringes Article 15. Wanchoo, CJ, speaking for the Constitution Bench dealt
with the contention in the following words:
“The contention is that the list of socially and educationally backward classes for
whom reservation is made under Rule 5 is 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 caste in question, it
would be violative of Article 15(1). But it must not be forgotten that a caste is also a
class of citizens and if the caste as a whole is socially and educationally backward
reservation can be made in favour of such a caste on the ground that it is a socially
and educationally backward class of citizens within the meaning of Article 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 .. .. 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 Article
15(4) ….
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. 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
violative of Article 15. The challenge to Rule 5 must therefore fail.”
The shift in approach and emphasis is obvious. The Court now held that a caste is a
class of citizens and that if a 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). Moreover the
burden of proving that the specification/identification was bad, was placed upon the
petitioners. In case of failure to discharge that burden, the identification made by the State
was upheld. The identification made on the basis of caste was upheld inasmuch as the
petitioner failed to prove that any caste mentioned in the list was not socially and
educationally backward.
Thomas marks the beginning of a new thinking on Article 16, though the seed of
this thought is to be found in the dissenting opinion of Subba Rao, J in Devadasan. The
Kerala Government had, by amending Kerala State and Subordinate Service Rules
101
empowered the Government to exempt, by order, for a specified period, any member or
members belonging to Scheduled Castes or Scheduled Tribes and already in service, from
passing the test which an employee had to pass as a precondition for promotion to next higher
post. Exercising the said power, the Government of Kerala issued a notification granting
“temporary exemption to members already in service belonging to any of the Scheduled
Castes or Scheduled Tribes from passing all tests (unified, special or departmental test) for a
period of two years”. On the basis of the said exemption, a large number of employees
belonging to Scheduled Castes and Scheduled Tribes, who had been stagnating in their
respective posts for want of passing the departmental tests, were promoted. They were now
required to pass the tests within the period of exemption. Out of 51 vacancies which arose in
the category of Upper Division Clerks in the year 1972, 34 were filled up by members of
Scheduled Castes leaving only 17 for others. This was questioned by Thomas, a member
belonging to non-reserved category. His grievance was: but for the said concession/exemption
given to members of Scheduled Castes/Scheduled Tribes he would have been promoted to
one of those posts in view of his passing the relevant tests. He contended that Article 16(4)
permits only reservations in favour of backward classes but not such an exemption. This
argument was accepted by the Kerala High Court. It also upheld the further contention that
inasmuch as more than 50% vacancies in the year had gone to the members of Scheduled
Castes as a result of the said exemption, it is bad for violating the 50% rule in Balaji. The
State of Kerala carried the matter in appeal to this Court which was allowed by a majority of
5:2. All the seven Judges wrote separate opinions. The headnote to the decision in Supreme
Court Reports succinctly sets out the principles enunciated in each of the judgments. We do
not wish to burden this judgment by reproducing them here. We would rest content with
delineating the broad features emerging from these opinions. Ray, CJ held that Article 16(1),
being a facet of Article 14, permits reasonable classification. Article 16(4) clarifies and
explains that classification on the basis of backwardness. Classification of Scheduled Castes
does not fall within the mischief of Article 16(2) since Scheduled Castes historically
oppressed and backward, are not castes. The concession granted to them is permissible under
and legitimate for the purposes of Article 16(1). The rule giving preference to an unrepresented or under-represented backward community does not contravene Article 14, 16(1)
or 16(2). Any doubt on this score is removed by Article 16(4). He opined further that for
determining whether a reservation is excessive or not one must have to look to the total
number of posts in a given unit of department, as the case may be. Mathew, J agreed that
Article 16(4) is not an exception to Article 16(1), that Article 16(1) permits reasonable
classification and that Scheduled Castes are not ‘castes’ within the meaning of Article 16(2).
He espoused the theory of ‘proportional equality’ evolved in certain American decisions. He
does not refer to the decisions in Balaji or Devadasan in his opinion nor does he express any
opinion on the extent of permissible reservation. Beg, J adopted a different reasoning.
According to him, the rule and the orders issued thereunder was “a kind of reservation”
falling under Article 16(4) itself. Krishna Iyer, J was also of the opinion that Article 16(1)
being a facet of Article 16 permits reasonable classification, that Article 16(4) is not an
exception but an emphatic statement of what is inherent in Article 16(1) and further that
Scheduled Castes are not ‘castes’ within the meaning of Article 16(2) but a collection of
castes, races and groups. Article 16(4) is one mode of reconciling the claims of backward
people and the opportunity for free competition the forward sections are ordinarily entitled to,
102
held the learned Judge. He approved the dissenting opinion of Subba Rao, J. in Devadasan.
Fazal Ali, J. too adopted a similar approach. The learned Judge pointed out:
“[I]f we read Article 16(4) as an exception to Article 16(1) then the inescapable
conclusion would be that Article 16(1) does not permit any classification at all
because an express provision has been made for this in clause (4). This is, however,
contrary to the basic concept of equality contained in Article 14 which implicitly
permits classification in any form provided certain conditions are fulfilled.
Furthermore, if no classification can be made under Article 16(1) except reservation
contained in clause (4) then the mandate contained in Article 335 would be
defeated.”
He held that the rule and the orders impugned are referable to and sustainable under Article
The learned Judge went further and held that the rule of 50% evolved in Balaji is a mere
rule of caution and was not meant to be exhaustive of all categories. He expressed the opinion
that the extent of reservation depends upon the proportion of the backward classes to the total
population and their representation in public services. He expressed a doubt as to the
correctness of the majority view in Devadasan. Among the minority Khanna, J. preferred the
view taken in Balaji and other cases to the effect that Article 16(4) is an exception to Article
16(1). He opined that no preference can be provided in favour of backward classes outside
clause (4). A.C. Gupta, J concurred with this view.
The last decision of this Court on this subject is in K.C. Vasanth Kumar v. State of
Karnataka [1985 Supp SCC 714]. The five Judges constituting the Bench wrote separate
opinions, each treading a path of his own. Chandrachud, C.J., opined that the present
reservations should continue for a further period of 15 years making a total of 50 years from
the date of commencement of the Constitution. He added that the means-test must be applied
to ensure that the benefit of reservations actually reaches the deserving sections. Desai, J was
of the opinion that the only basis upon which backward classes should be identified is the
economic one and that a time has come to discard all other bases. Chinnappa Reddy, J. was of
the view that identification of backward classes on the basis of caste cannot be taken
exception to for the reason that in the Indian context caste is a class. Caste, the learned Judge
said, is the primary index of social backwardness, so that social backwardness is often readily
identifiable with reference to a person’s caste. If it is found in the case of a given caste that a
few members have progressed far enough so as to compare favourably with the forward
classes in social, economic and educational fields, an upper income ceiling can perhaps be
prescribed to ensure that the benefit of reservation reaches the really deserving. He opined
that identification of SEBCs in the Indian milieu is a difficult and complex exercise, which
does not admit of any rigid or universal tests. It is not a matter for the courts. The ‘backward
class of citizens’, he held, are the very same SEBCs referred to in Article 15(4). The learned
Judge condemned the argument that reservations are likely to lead to deterioration in
efficiency or that they are anti-meritarian. He disagreed with the view that for being identified
as SEBCs, the relevant groups should be comparable to SCs/STs in social and educational
backwardness. The learned Judge agreed with the opinion of Fazal Ali, J. in Thomas
[AIR 1976 SC 490] that the rule of 50% in Balaji is a rule of caution and not an inflexible
rule. At any rate, he said, it is not for the court to lay down any such hard and fast rule. A.P.
Sen, J. was of the opinion that the predominant and only factor for making special provision
103
under Article 15(4) or 16(4) should be poverty and that caste should be used only for the
purpose of identification of groups comparable to Scheduled Castes/Scheduled Tribes. The
reservation should continue only till such time as the backward classes attain a state of
enlightenment. Venkataramiah, J. agreed with Chinnappa Reddy, J. that identification of
backward classes can be made on the basis of caste. He cited the Constituent Assembly and
Parliamentary debates in support of this view. According to the learned Judge, equality of
opportunity revolves around two dominant principles viz., (i) the traditional value of equality
of opportunity and (ii) the newly appreciated – though not newly conceived – idea of equality
of results. He too did not agree with the argument of ‘merit’. Application of the principle of
individual merit, unmitigated by other consideration, may quite often lead to inhuman results,
he pointed out. He supported the imposition of the ‘means’ test but disagreed with the view
that the extent of reservations can exceed 50%. Periodic review of this list of SEBCs and
extension of other facilities to them was stressed.
At this stage, we wish to clarify one particular aspect. Article 16(1) is a facet of
Article 14. Just as Article 14 permits reasonable classification, so does Article 16(1). A
classification may involve reservation of seats or vacancies, as the case may be. In other
words, under clause (1) of Article 16, appointments and/or posts can be reserved in favour of
a class.
(Questions 1 and 2)
Question 1 (a):: Whether the ‘provision’ in Article 16(4) must necessarily be made by the
Parliament/Legislature?
Shri K.K. Venugopal submits that the “provision” contemplated by clause (4) of
Article 16 can be made only by and should necessarily be made by the legislative wing of the
State and not by the executive or any other authority. He disputes the correctness of the
holding in Balaji negativing an identical contention. He submits that since the provision made
under Article 16(4) affects the fundamental rights of other citizens, such a provision can be
made only by the Parliament/Legislature. He submits that if the power of making the
“provision” is given to the executive, it will give room for any amount of abuse. According to
the learned counsel, the political executive, owing to the degeneration of the electoral process,
normally acts out of political and electoral compulsions, for which reason it may not act fairly
and independently. If, on the other hand, the provision is to be made by the legislative wing of
the State, it will not only provide an opportunity for debate and discussion in the legislature
where several shades of opinion are represented but a balanced and unbiased decision free
from the allurements of electoral gains is more likely to emerge from such a deliberating
body. Shri Venugopal cites the example of Tamil Nadu where, according to him, before every
general election a few communities are added to the list of backward classes, only with a
view to winning them over to the ruling party. The use of the expression ‘provision’ in clause
(4) of Article 16 appears to us to be not without design. According to the definition of ‘State’
in Article 12, it includes not merely the Government and Parliament of India and Government
and Legislature of each of the States but all local authorities and other authorities within the
territory of India or under the control of the Government of India which means that such a
measure of reservation can be provided not only in the matter of services under the Central
and State Governments but also in the services of local and other authorities referred to in
Article 12. The expression ‘Local Authority’ is defined in Section 3(31) of the General
104
Clauses Act. It takes in all municipalities, Panchayats and other similar bodies. The
expression ‘other authorities’ has received extensive attention from the court. It includes all
statutory authorities and other agencies and instrumentalities of the State Government/Central
Government. Now, would it be reasonable, possible or practicable to say that the Parliament
or the Legislature of the State should provide for reservation of posts/appointments in the
services of all such bodies besides providing for in respect of services under the Central/State
Government? This aspect would become clearer if we notice the definition of “Law” in
Article 13(3)(a). It reads:
“13(3) In this article, unless the context otherwise requires,–
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification,
custom or usage having in the territory of India the force of law; …”
The words “order”, “bye-law”, “rule” and “regulation” in this definition are
significant. Reading the definition of “State” in Article 12 and of “law” in Article 13(3)(a), it
becomes clear that a measure of the nature contemplated by Article 16(4) can be provided not
only by the Parliament/Legislature but also by the executive in respect of Central/State
services and by the local bodies and “other authorities” contemplated by Article 12, in respect
of their respective services. Some of the local bodies and some of the statutory corporations
like universities may have their own legislative wings. In such a situation, it would be
unreasonable and inappropriate to insist that reservation in all these services should be
provided by Parliament/Legislature. The situation and circumstances of each of these bodies
may vary. The rule regarding reservation has to be framed to suit the particular situations. All
this cannot reasonably be done by Parliament/Legislature.
Even textually speaking, the contention cannot be accepted. The very use of the
word “provision” in Article 16(4) is significant. Whereas clauses (3) and (5) of Article 16 –
and clauses (2) to (6) of Article 19 – use the word “law”, Article 16(4) uses the word
“provision”. Regulation of service conditions by orders and rules made by the executive was
a well-known feature at the time of the framing of the Constitution. Probably for this reason, a
deliberate departure has been made in the case of clause (4). Accordingly, we hold, agreeing
with Balaji, that the “provision” contemplated by Article 16(4) can also be made by the
executive wing of the Union or of the State, as the case may be, as has been done in the
present case. With respect to the argument of abuse of power by the political executive, we
may say that there is adequate safeguard against misuse by the political executive of the
power under Article 16(4) in the provision itself. Any determination of backwardness is not a
subjective exercise nor a matter of subjective satisfaction. As held herein – as also by earlier
judgments – the exercise is an objective one. Certain objective social and other criteria have to
be satisfied before any group or class of citizens could be treated as backward. If the
executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria,
it would be a clear case of fraud on power.
Question 1(b) : Whether an executive order making a ‘provision’ under Article 16(4) is
enforceable forthwith?
A question is raised whether an executive order made in terms of Article 16(4) is
effective and enforceable by itself or whether it is necessary that the said “provision” is
enacted into a law made by the appropriate legislature under Article 309 or is incorporated
105
into and issued as a Rule by the President/Governor under the proviso to Article 309 for it to
become enforceable? Mr Ram Jethmalani submits that Article 16(4) is merely declaratory in
nature, that it is an enabling provision and that it is not a source of power by itself. He
submits that unless made into a law by the appropriate legislature or issued as a rule in terms
of the proviso to Article 309, the “provision” so made by the executive does not become
enforceable. At the same time, he submits that the impugned Memorandums must be deemed
to be and must be treated as Rules made and issued under the proviso to Article 309 of the
Constitution. We find it difficult to agree with Shri Jethmalani. Once we hold that a provision
under Article 16(4) can be made by the executive, it must necessarily follow that such a
provision is effective the moment it is made.
Be that as it may, there is yet another reason, why we cannot agree that the
impugned Memorandums are not effective and enforceable the moment they are issued. It is
well settled by the decisions of this Court that the appropriate government is empowered to
prescribe the conditions of service of its employees by an executive order in the absence of
the rules made under the proviso to Article 309. It is further held by this Court that even
where Rules under the proviso to Article 309 are made, the Government can issue
orders/instructions with respect to matters upon which the Rules are silent.
It would, therefore, follow that until a law is made or rules are issued under Article
309 with respect to reservation in favour of backward classes, it would always be open to the
Executive Government to provide for reservation of appointments/posts in favour of
Backward Classes by an executive order. We cannot also agree with Shri Jethmalani that the
impugned Memorandums should be treated as Rules made under the proviso to Article 309.
There is nothing in them suggesting even distantly that they were issued under the proviso to
Article 309. They were never intended to be so, nor is that the stand of the Union Government
before us. They are executive orders issued under Article 73 of the Constitution read with
clause (4) of Article 16. The mere omission of a recital “in the name and by order of the
President of India” does not affect the validity or enforceability of the orders, as held by this
Court repeatedly.
Question 2(a) : Whether clause (4) of Article 16 is an exception to clause (1)?
In Balaji it was held – “there is no doubt that Article 15(4) has to be read as a
proviso or an exception to Articles 15(1) and 29(2)”. It was observed that Article 15(4) was
inserted by the First Amendment in the light of the decision in Champakam, with a view to
remove the defect pointed out by this court namely, the absence of a provision in Article 15
corresponding to clause (4) of Article 16. Following Balaji it was held by another
Constitution Bench (by majority) in Devadasan – “further this Court has already held that
clause (4) of Article 16 is by way of a proviso or an exception to clause (1)”. Subba Rao, J,
however, opined in his dissenting opinion that Article 16(4) is not an exception to Article
16(1) but that it is only an emphatic way of stating the principle inherent in the main
provision itself. Be that as it may, since the decision in Devadasan, it was assumed by this
Court that Article 16(4) is an exception to Article 16(1). This view, however, received a
severe setback from the majority decision in State of Kerala v. N.M. Thomas. Though the
106
minority (H.R. Khanna and A.C. Gupta, JJ) stuck to the view that Article 16(4) is an
exception, the majority (Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ) held that Article
16(4) is not an exception to Article 16(1) but that it was merely an emphatic way of stating a
principle implicit in Article 16(1). (Beg, J took a slightly different view which it is not
necessary to mention here.) The said four learned Judges – whose views have been referred to
in para 713 – held that Article 16(1) being a facet of the doctrine of equality enshrined in
Article 14 permits reasonable classification just as Article 14 does. In our respectful opinion,
the view taken by the majority in Thomas is the correct one. We too believe that Article 16(1)
does permit reasonable classification for ensuring attainment of the equality of opportunity
assured by it. For assuring equality of opportunity, it may well be necessary in certain
situations to treat unequally situated persons unequally. Not doing so, would perpetuate and
accentuate inequality. Article 16(4) is an instance of such classification, put in to place the
matter beyond controversy. The “backward class of citizens” are classified as a separate
category deserving a special treatment in the nature of reservation of appointments/posts in
the services of the State. Accordingly, we hold that clause (4) of Article 16 is not exception to
clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause
(1). The speech of Dr Ambedkar during the debate on draft Article 10(3) [corresponding to
Article 16(4)] in the Constituent Assembly shows that a substantial number of members of the
Constituent Assembly insisted upon a “provision (being) made for the entry of certain
communities which have so far been outside the administration”, and that draft clause (3) was
put in in recognition and acceptance of the said demand. It is a provision which must be read
along with and in harmony with clause (1). Indeed, even without clause (4), it would have
been permissible for the State to have evolved such a classification and made a provision for
reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond
any doubt in specific terms.
Regarding the view expressed in Balaji and Devadasan, it must be remembered that
at that time it was not yet recognised by this Court that Article 16(1) being a facet of Article
14 does implicitly permit classification. Once this feature was recognised the theory of clause
(4) being an exception to clause (1) became untenable. It had to be accepted that clause (4) is
an instance of classification inherent in clause (1). Now, just as Article 16(1) is a facet or an
elaboration of the principle underlying Article 14, clause (2) of Article 16 is also an
elaboration of a facet of clause (1). If clause (4) is an exception to clause (1) then it is equally
an exception to clause (2). Question then arises, in what respect if clause (4) an exception to
clause (2), if ‘class’ does not mean ‘caste’. Neither clause (1) nor clause (2) speaks of class.
Does the contention mean that clause (1) does not permit classification and therefore clause
(4) is an exception to it. Thus, from any point of view, the contention of the petitioners has no
merit.
Question 2(b) : Whether Article 16(4) is exhaustive of the concept of reservations in favour
of backward classes?
The question then arises whether clause (4) of Article 16 is exhaustive of the topic of
reservations in favour of backward classes. Before we answer this question it is well to
examine the meaning and content of the expression “reservation”. Its meaning has to be
ascertained having regard to the context in which it occurs. The relevant words are “any
provision for the reservation of appointments or posts”. The question is whether the said
107
words contemplate only one form of provision namely reservation simpliciter, or do they take
in other forms of special provisions like preferences, concessions and exemptions. In our
opinion, reservation is the highest form of special provision, while preference, concession and
exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us
to take the view that larger concept of reservations takes within its sweep all supplemental
and ancillary provisions as also lesser types of special provisions like exemptions,
concessions and relaxations, consistent no doubt with the requirement of maintenance of
efficiency of administration – the admonition of Article 335. The several concessions,
exemptions and other measures issued by the Railway Administration and noticed in
Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made
with a view to make the main provision of reservation effective i.e., to ensure that the
members of the reserved class fully avail of the provision for reservation in their favour. The
other type of measure is the one in Thomas. There was no provision for reservation in favour
of Scheduled Castes/Scheduled Tribes in the matter of promotion to the category of Upper
Division Clerks. Certain tests were required to be passed before a Lower Division Clerk could
be promoted as Upper Division Clerk. A large number of Lower Division Clerks belonging to
SC/ST were not able to pass those tests, with the result they were stagnating in the category of
LDCs. Rule 13-AA was accordingly made empowering the Government to grant exemption
to members of SC/ST from passing those tests and the Government did exempt them, not
absolutely, but only for a limited period. This provision for exemption was a lesser form of
special treatment than reservation. There is no reason why such a special provision should not
be held to be included within the larger concept of reservation. It is in this context that the
words “any provision for the reservation of appointments and posts” assume significance. The
word “any” and the associated words must be given their due meaning. They are not a mere
surplusage. It is true that in Thomas it was assumed by the majority that clause (4) permits
only one form of provision namely reservation of appointments/posts and that if any
concessions or exemptions are to be extended to backward classes it can be done only under
clause (1) of Article 16. In fact the argument of the writ petitioners (who succeeded before the
Kerala High Court) was that the only type of provision that the State can make in favour of
the backward classes is reservation of appointments/posts provided by clause (4) and that the
said clause does not contemplate or permit granting of any exemptions or concessions to the
backward classes.
In our opinion, therefore, where the State finds it necessary – for the purpose of giving
full effect to the provision of reservation to provide certain exemptions, concessions or
preferences to members of backward classes, it can extend the same under clause (4) itself. In
other words, all supplemental and ancillary provisions to ensure full availment of provisions
for reservation can be provided as part of concept of reservation itself. Similarly, in a given
situation, the State may think that in the case of a particular backward class it is not necessary
to provide reservation of appointments/posts and that it would be sufficient if a certain
preference or a concession is provided in their favour. This can be done under clause (4)
itself. In this sense, clause (4) of Article 16 is exhaustive of the special provisions that can be
made in favour of “the backward class of citizens”. Backward Classes having been classified
by the Constitution itself as a class deserving special treatment and the Constitution having
itself specified the nature of special treatment, it should be presumed that no further
108
classification or special treatment is permissible in their favour apart from or outside of clause
(4) of Article 16.
Question 2(c) : Whether Article 16(4) is exhaustive of the very concept of reservations?
The aspect next to be considered is whether clause (4) is exhaustive of the very
concept of reservations? In other words, the question is whether any reservations can be
provided outside clause (4) i.e., under clause (1) of Article 16. There are two views on this
aspect. On a fuller consideration of the matter, we are of the opinion that clause (4) is not, and
cannot be held to be, exhaustive of the concept of reservations; it is exhaustive of reservations
in favour of backward classes alone. Merely because, one form of classification is stated as a
specific clause, it does not follow that the very concept and power of classification implicit in
clause (1) is exhausted thereby. To say so would not be correct in principle. But, at the same
time, one thing is clear. It is in very exceptional situations, – and not for all and sundry
reasons – that any further reservations, of whatever kind, should be provided under clause (1).
In such cases, the State has to satisfy, if called upon, that making such a provision was
necessary (in public interest) to redress a specific situation. The very presence of clause (4)
should act as a damper upon the propensity to create further classes deserving special
treatment. The reason for saying so is very simple. If reservations are made both under clause
(4) as well as under clause (1), the vacancies available for free competition as well as
reserved categories would be a correspondingly whittled down and that is not a reasonable
thing to do.
Whether clause (1) of Article 16 does not permit any reservations?
For the reasons given in the preceding paragraphs, we must reject the argument that
clause (1) of Article 16 permits only extending of preference, concessions and exemptions,
but does not permit reservation of appointments/posts. As pointed out in para 733 the
argument that no reservations can be made under Article 16(1) is really inspired by the
opinion of Powell, J in Bakke. But in the very same paragraph we had pointed out that it is
not the unanimous opinion of the Court. In principle, we see no basis for acceding to the said
contention. What kind of special provision should be made in favour of a particular class is a
matter for the State to decide, having regard to the facts and circumstances of a given
situation – subject, of course, to the observations in the preceding paragraph.
(Questions 3, 4 and 5)
Question 3 : (a) Meaning of the expression “backward class of citizens” in Article 16(4).
What does the expression “backward class of citizens” in Article 16(4) signify and
how should they be identified? This has been the single most difficult question tormenting
this nation. The expression is not defined in the Constitution. What does it mean then? The
arguments before us mainly revolved round this question. Several shades of opinion have
been presented to us ranging from one extreme to the other. Indeed, it may be difficult to set
out in full the reasoning presented before us orally and in several written propositions
submitted by various counsel. We can mention only the substance of and the broad features
emerging from those submissions. At one end of the spectrum stands Shri N.A. Palkhivala
(supported by several other counsel) whose submissions may briefly be summarised in the
following words: a secular, unified and casteless society is a basic feature of the Constitution.
Caste is a prohibited ground of distinction under the Constitution. It ought be erased
109
altogether from the Indian society. It can never be the basis for determining backward classes
referred to in Article 16(4). The Report of the Mandal Commission, which is the basis of the
impugned Memorandums, has treated the expression “backward classes” as synonymous with
backward castes and has proceeded to identify backward classes solely and exclusively on the
basis of caste, ignoring all other considerations including poverty. It has indeed invented
castes for non-Hindus where none exist. The Report has divided the nation into two sections,
backward and forward, placing 52% of the population in the former section. Acceptance of
the Report would spell disaster to the unity and integrity of the nation. If half of the posts are
reserved for backward classes, it would seriously jeopardise the efficiency of the
administration, educational system, and all other services resulting in backwardness of the
entire nation. Merit will disappear by defying backwardness. Article 16(4) is broader than
Article 15(4). The expression “backward class of citizens” in Article 16(4) is not limited to
“socially and educationally backward classes” in Article 15(4). The impugned Memorandum,
based on the said report must necessarily fall to the ground along with the Report. In fact the
main thrust of Shri Palkhivala’s argument has been against the Mandal Commission Report.
In Venkataramana case, a seven-Judge Bench of this Court noticed the list of
backward classes mentioned in Schedule III to the Madras Provincial and Subordinate Service
Rules, 1942, as also the fact that backward classes were enumerated on the basis of caste/race.
It found no objection thereto though in Champakam, rendered by the same Bench and on the
same day it found such a classification bad under Article 15 on the ground that Article 15 did
not contain a clause corresponding to clause (4) of Article 16. In Venkataramana case this
Court observed that in respect of the vacancies reserved for backward classes of Hindus, the
petitioner (a Brahmin) cannot have any claim inasmuch as “those reserved posts (were
reserved) not on the ground of religion, race, caste etc. but because of the necessity for
making a provision for reservation of such post in favour of a backward class of citizens”.
The writ petition was allowed on the ground that the allocation of vacancies to and among
communities other than Harijans and backward classes of Hindus cannot be sustained in view
of clauses (1) and (2) of Article 16.
Though Balaji was not a case arising under Article 16(4), what it said about Article
15(4) came to be accepted as equally good and valid for the purpose of Article 16(4). The
formulations enunciated with respect to Article 15(4) were, without question, applied and
adopted in cases arising under Article 16(4). It is, therefore, necessary to notice precisely the
formulations in Balaji relevant in this behalf. Gajendragadkar, J speaking for the Constitution
Bench found, on an examination of the Nagangowda Committee Report, “that the Committee
virtually equated the class with the castes”.
The criticism of the respondents’ counsel against the judgment runs thus: While it
recognises the relevance and significance of the caste and the integral connection between
caste, poverty and social backwardness, it yet refuses to accept caste as the sole basis of
identifying socially backward classes, partly for the reason that castes do not exist among
non-Hindus. The judgment does not examine whether caste can or cannot form the starting
point of process of identification of socially backward classes. Nor does it consider the aspect
– how does the non-existence of castes among non-Hindus (assuming that the said premise is
factually true) makes it irrelevant in the case of Hindus, who constitute the bulk of the
110
country’s population. There is no rule of law that a test or basis adopted must be uniformly
applicable to the entire population in the country as such.
Before proceeding further it may be noticed that Balaji was dealing with Article
15(4) which clause contains the qualifying words “socially and educationally” preceding the
expression “backward classes”. Accordingly, it was held that the backwardness contemplated
by Article 15(4) is both social and educational. Though, clause (4) of Article 16 did not
contain any such qualifying words, yet they came to be read into it. In Janki Prasad
Parimoo, Palekar, J., speaking for a Constitution Bench, took it as “well-settled that the
expression ‘backward classes’ in Article 16(4) means the same thing as the expression ‘any
socially and educationally backward class of citizens’ in Article 15(4)”.
The above opinions emphasise the integral connection between caste, occupation,
poverty and social backwardness. They recognise that in the Indian context, lower castes are
and ought to be treated as backward classes. Rajendran and Vasanth Kumar (opinions of
Chinnappa Reddy and Venkataramiah, JJ) constitute important milestones on the road to
recognition of relevance and significance of caste in the context of Article 16(4) and Article
15(4).
In our opinion too, the words “class of citizens – not adequately represented in the
services under the State” would have been a vague and uncertain description. By adding the
word “backward” and by the speeches of Dr Ambedkar and Shri K.M. Munshi, it was made
clear that the “class of citizens … not adequately represented in the services under the State”
meant only those classes of citizens who were not so represented on account of their social
backwardness.
It must be remembered that the Parliament which enacted the First Amendment was
the very same Constituent Assembly which framed the Constitution and Dr Ambedkar as the
Minister of Law was piloting the Bill. He said that backward classes “are nothing else but a
collection of certain castes”. (The relevant portion of his speech is referred to in para 699) and
that it was for those backward classes that Article 15(4) was being enacted.
Indeed, there are very good reasons why the Constitution could not have used the
expression “castes” or “caste” in Article 16(4) and why the word “class” was the natural
choice in the context. The Constitution was meant for the entire country and for all time to
come. Non-Hindu religions like Islam, Christianity and Sikh did not recognise caste as such
though, as pointed out hereinabove, castes did exist even among these religions to a varying
degree. Further, a Constitution is supposed to be a permanent document expected to last
several centuries. It must surely have been envisaged that in future many classes may spring
up answering the test of backwardness, requiring the protection of Article 16(4). It, therefore,
follows that from the use of the word “class” in Article 16(4), it cannot be concluded either
that “class” is antithetical to “caste” or that a caste cannot be a class or that a caste as such can
never be taken as a backward class of citizens. The word “class” in Article 16(4), in our
opinion, is used in the sense of social class – and not in the sense it is understood in Marxist
jargon.
The above material makes it amply clear that a caste is nothing but a social class – a
socially homogeneous class. It is also an occupational grouping, with this difference that its
membership is hereditary. One is born into it. Its membership is involuntary. Even if one
111
ceases to follow that occupation, still he remains and continues a member of that group. To
repeat, it is a socially and occupationally homogeneous class. Endogamy is its main
characteristic. Its social status and standing depends upon the nature of the occupation
followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded
hierarchy. In rural India, occupation-caste nexus is true even today. A few members may have
gone to cities or even abroad but when they return – they do, barring a few exceptions – they
go into the same fold again. It doesn’t matter if he has earned money. He may not follow that
particular occupation. Still, the label remains. His identity is not changed. For the purposes of
marriage, death and all other social functions, it is his social class – the caste – that is relevant.
It is a matter of common knowledge that an overwhelming majority of doctors, engineers and
other highly qualified people who go abroad for higher studies or employment, return to India
and marry a girl from their own caste. Even those who are settled abroad come to India in
search of brides and bridegrooms for their sons and daughters from among their own caste or
community. As observed by Dr Ambedkar, a caste is an enclosed class and it was mainly
these classes the Constituent Assembly had in mind – though not exclusively – while enacting
Article 16(4). Urbanisation has to some extent broken this caste-occupation nexus but not
wholly. If one sees around himself, even in towns and cities, a barber by caste continues to do
the same job – may be, in a shop (hair dressing saloon). A washerman ordinarily carries on the
same job though he may have a laundry of his own. May be some others too carry on the
profession of barber or washerman but that does not detract from the fact that in the case of an
overwhelming majority, the caste-occupation nexus subsists. In a rural context, of course, a
member of barber caste carrying on the occupation of a washerman or vice versa would
indeed be a rarity – it is simply not done. There, one is supposed to follow his casteoccupation, ordained for him by his birth. There may be exceptions here and there, but we are
concerned with generality of the scene and not with exceptions or aberrations. Lowly
occupation results not only in low social position but also in poverty; it generates poverty.
‘Caste-occupation-poverty’ cycle is thus an ever present reality. In rural India, it is strikingly
apparent; in urban centres, there may be some dilution. But since rural India and rural
population is still the overwhelmingly predominant fact of life in India, the reality remains.
All the decisions since Balaji speak of this ‘caste-occupation-poverty’ nexus. The language
and emphasis may vary but the theme remains the same. This is the stark reality
notwithstanding all our protestations and abhorrence and all attempts at weeding out this
phenomenon. We are not saying it ought to be encouraged. It should not be. It must be
eradicated. That is the ideal – the goal. But any programme towards betterment of these
sections/classes of society and any programme designed to eradicate this evil must recognise
this ground reality and attune its programme accordingly. Merely burying our heads in the
sand – ostrich-like – wouldn’t help. One cannot fight his enemy without recognising him. The
U.S. Supreme Court has said repeatedly, if race be the basis of discrimination – past and
present – race must also form the basis of redressal programmes though in our constitutional
scheme, it is not necessary to go that far. Without a doubt an extensive restructuring of the
socio-economic system is the answer. That is indeed the goal, as would be evident from the
Preamble and Part IV (Directive Principles). But we are concerned here with a limited aspect
of equality emphasised in Article 16(4) – equality of opportunity in public employment and a
special provision in favour of backward class of citizens to enable them to achieve it.
(b) Identification of “backward class of citizens”
112
Now, we may turn to the identification of “backward class of citizens”. How do you
go about it? Where do you begin? Is the method to vary from State to State, region to region
and from rural to urban? What do you do in the case of religions where caste-system is not
prevailing? What about other classes, groups and communities which do not wear the label of
caste? Are the people living adjacent to cease-fire line (in Jammu and Kashmir) or hilly or
inaccessible regions to be surveyed and identified as backward classes for the purpose of
Article 16(4)? And so on and so forth are the many questions asked of us. We shall answer
them. But our answers will necessarily deal with generalities of the situation and not with
problems or issues of a peripheral nature which are peculiar to a particular State, district or
region. Each and every situation cannot be visualised and answered. That must be left to the
appropriate authorities appointed to identify. We can lay down only general guidelines.
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. 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.
The only basis for saying that caste should be excluded from consideration
altogether while identifying the backward class of citizens for the purpose of Article 16(4) is
clause (2) of Article 16. This argument, however, overlooks and ignores the true purport of
113
clause (2). It prohibits discrimination on any or all of the grounds mentioned therein. The
significance of the word “any” cannot be minimised. Reservation is not being made under
clause (4) in favour of a ‘caste’ but a backward class. Once a caste satisfies the criteria of
backwardness, it becomes a backward class for the purposes of Article 16(4). Even that is not
enough. It must be further found that that backward class is not adequately represented in the
services of the State. In such a situation, the bar of clause (2) of Article 16 has no application
whatsoever. Similarly, the argument based upon secular nature of the Constitution is too
vague to be accepted. It has been repeatedly held by the U.S. Supreme Court in school
desegregation cases that if race be the basis of discrimination, race can equally form the basis
of redressal. In any event, in the present context, it is not necessary to go to that extent. It is
sufficient to say that the classification is not on the basis of the caste but on the ground that
that caste is found to be a backward class not adequately represented in the services of the
State. Born heathen, by baptism, it becomes a Christian – to use a simile. Baptism here means
passing the test of backwardness.
(c) Whether the backwardness in Article 16(4) should be both social and educational?
The other aspect to be considered is whether the backwardness contemplated in
Article 16(4) is social backwardness or educational backwardness or whether it is both social
and educational backwardness. Since the decision in Balaji it has been assumed that the
backward class of citizens contemplated by Article 16(4) is the same as the socially and
educationally backward classes, Scheduled Castes and Scheduled Tribes mentioned in Article
15(4). Though Article 15(4) came into existence later in 1951 and Article 16(4) does not
contain the qualifying words “socially and educationally” preceding the words “backward
class of citizens” the same meaning came to be attached to them.
It is true that no decision earlier to it specifically said so, yet such an impression
gained currency and it is that impression which finds expression in the above observation. In
our respectful opinion, however, the said assumption has no basis. Clause (4) of Article 16
does not contain the qualifying words “socially and educationally” as does clause (4) of
Article 15. It may be remembered that Article 340 (which has remained unamended) does
employ the expression ‘socially and educationally backward classes’ and yet that expression
does not find place in Article 16(4). The reason is obvious: “backward class of citizens” in
Article 16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of
citizens including the socially and educationally backward classes. Thus, certain classes
which may not qualify for Article 15(4) may qualify for Article 16(4). They may not qualify
for Article 15(4) but they may qualify as backward class of citizens for the purposes of
Article 16(4). It is equally relevant to notice that Article 340 does not expressly refer to
services or to reservations in services under the State, though it may be that the Commission
appointed thereunder may recommend reservation in appointments/posts in the services of the
State as one of the steps for removing the difficulties under which SEBCs are labouring and
for improving their conditions. Thus, SEBCs referred to in Article 340 is only of the
categories for whom Article 16(4) was enacted: Article 16(4) applies to a much larger class
than the one contemplated by Article 340. It would, thus, be not correct to say that ‘backward
class of citizens’ in Article 16(4) are the same as the socially and educationally backward
classes in Article 15(4). Saying so would mean and imply reading a limitation into a
beneficial provision like Article 16(4). Moreover, when speaking of reservation in
114
appointments/posts in the State services – which may mean, at any level whatsoever –
insisting upon educational backwardness may not be quite appropriate.
Further, if one keeps in mind the context in which Article 16(4) was enacted it
would be clear that the accent was upon social backwardness. It goes without saying that in
the Indian context, social backwardness leads to educational backwardness and both of them
together lead to poverty – which in turn breeds and perpetuates the social and educational
backwardness. They feed upon each other constituting a vicious circle. It is a well-known fact
that till independence the administrative apparatus was manned almost exclusively by
members of the ‘upper’ castes. The Shudras, the Scheduled Castes and the Scheduled Tribes
and other similar backward social groups among Muslims and Christians had practically no
entry into the administrative apparatus. It was this imbalance which was sought to be
redressed by providing for reservations in favour of such backward classes. In this sense Dr
Rajeev Dhavan may be right when he says that the object of Article 16(4) was
“empowerment” of the backward classes. The idea was to enable them to share the state
power. We are, accordingly, of the opinion that the backwardness contemplated by Article
16(4) is mainly social backwardness. It would not be correct to say that the backwardness
under Article 16(4) should be both social and educational. The Scheduled Tribes and the
Scheduled Castes are without a doubt backward for the purposes of the clause; no one has
suggested that they should satisfy the test of social and educational backwardness. It is
necessary to state at this stage that the Mandal Commission appointed under Article 340 was
concerned only with the socially and educationally backward classes contemplated by the said
article. Even so, it is evident that social backwardness has been given precedence over others
by the Mandal Commission – 12 out of 22 total points. Social backwardness – it may be
reiterated – leads to educational and economic backwardness. No objection can be, nor is
taken, to the validity and relevancy of the criteria adopted by the Mandal Commission. For a
proper appreciation of the criteria adopted by the Mandal Commission and the difficulties in
the way of evolving the criteria of backwardness, one must read closely Chapters III and XI
of Volume I along with Appendixes XII and XXI in Volume II. Appendix XII is the Report of
the Research Planning Team of the Sociologists while Appendix XXI is the ‘Final List of
Tables’ adopted in the course of socio-educational survey.
11.20. In Balaji case the Supreme Court held that if a particular community is to be
treated as educationally backward, the divergence between its educational level and that
of the State average should not be marginal but substantial. The Court considered 50%
divergence to be satisfactory. Now, 80% of the population of Bihar (1971 Census) is
illiterate. To beat this percentage figure by a margin of 50% will mean that 120%
members of a caste/class should be illiterates. In fact it will be seen that in this case even
25% divergence will stretch us to the maximum saturation point of 100%.
11.21. In the Indian situation where vast majority of the people are illiterate, poor or
backward, one has to be very careful in setting deviations from the norms as, in our
conditions, norms themselves are very low. For example, Per Capita Consumer
Expenditure for 1977-78 at current prices was Rs 991 per annum. For the same period,
the poverty line for urban areas was at Rs 900 per annum and for rural areas at Rs 780. It
will be seen that this poverty line is quite close to the Per Capita Consumer Expenditure
of an average Indian. Now following the dictum of Balaji case, if 50% deviation from
115
this average Per Capita Consumer Expenditure was to be accepted to identify
‘economically backward’ classes, their income level will have to be 50% below the Per
Capita Consumer Expenditure i.e., less than Rs 495.5 per year. This figure is so much
below the poverty line both in urban and rural areas that most of the people may die of
starvation before they qualify for such a distinction.
11.22. In view of the above, ‘Indicators for Backwardness’ were tested against
various cut-off points. For doing so, about a dozen castes well-known for their social and
educational backwardness were selected from amongst the castes covered by our survey
in a particular State. These were treated as ‘Control’ and validation checks were carried
out by testing them against ‘Indicators’ at various cut-off points. For instance, one of the
‘Indicators’ for social backwardness is the rate of student drop-outs in the age group 5-15
years as compared to the State average. As a result of the above tests, it was seen that in
educationally backward castes this rate is at least 25% above the State average. Further, it
was also noticed that this deviation of 25% from the State average in the case of most of
the ‘Indicators’ gave satisfactory results. In view of this, wherever an ‘Indicator’ was
based on deviation from the State average, it was fixed at 25%, because a deviation of
50% was seen to give wholly unsatisfactory results and, at times, to create anomalous
situations.”
The SEBCs referred to by the impugned Memorandums are undoubtedly ‘backward
class of citizens’ within the meaning of Article 16(4).
(d) ‘Means-test’ and ‘creamy layer’:
‘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.
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 backward class. 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
116
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 in
society (social status) rises; he is no longer socially disadvantaged. His children get full
opportunity to realise their potential. They are in no way handicapped in the race of life. His
salary is also such that he is above want. It is but logical that in such a situation, his children
are not given the benefit of reservation. For by giving them the benefit of reservation, other
disadvantaged members of that backward class may be deprived of that benefit. It is then
argued for the respondents that ‘one swallow doesn’t make the summer’, and that merely
because a few members of a caste or class become socially advanced, the class/caste as such
does not cease to be backward. It is pointed out that clause (4) of Article 16 aims at group
backwardness and not individual backwardness. While we agree that clause (4) aims at group
backwardness, we feel that exclusion of such socially advanced members will make the
‘class’ a truly backward class and would more appropriately serve the purpose and object of
clause (4). (This discussion is confined to Other Backward Classes only and has no relevance
in the case of Scheduled Tribes and Scheduled Castes).
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.
(e) Whether a class should be situated similarly to the Scheduled Castes/Scheduled Tribes
for being qualified as a Backward Class?

In Balaji it was held “that the Backward Classes for whose improvement special
provision is contemplated by Article 15(4) are in the matter of their backwardness
117
comparable to Scheduled Castes and Scheduled Tribes”. (emphasis supplied) The correctness
of this observation is questioned by the counsel for the respondents.
We see no reason to qualify or restrict the meaning of the expression “backward
class of citizens” by saying that it means those other backward classes who are situated
similarly to Scheduled Castes and/or Scheduled Tribes. As pointed out in para 786, the
relevant language employed in both the clauses is different. Article 16(4) does not expressly
refer to Scheduled Castes or Scheduled Tribes; if so, there is no reason why we should treat
their backwardness as the standard backwardness for all those claiming its protection. As a
matter of fact, neither the several castes/groups/tribes within the Scheduled Castes and
Scheduled Tribes are similarly situated nor are the Scheduled Castes and Scheduled Tribes
similarly situated. If any group or class is situated similarly to the Scheduled Castes, they may
have a case for inclusion in that class but there seems to be no basis either in fact or in
principle for holding that other classes/groups must be situated similarly to them for
qualifying as backward classes. There is no warrant to import any such a priori notions into
the concept of Other Backward Classes. At the same time, we think it appropriate to clarify
that backwardness, being a relative term, must in the context be judged by the general level of
advancement of the entire population of the country or the State, as the case may be. More
than this, it is difficult to say. How difficult is the process of ascertainment of backwardness
would be known if one peruses Chapters III and XI of Volume I of the Mandal Commission
Report along with Appendixes XII and XXI in Volume II. It must be left to the
Commission/Authority appointed to identify the backward classes to evolve a proper and
relevant criteria and test the several groups, castes, classes and sections of people against that
criteria. If, in any case, a particular caste or class is wrongly designated or not designated as a
backward class, it can always be questioned before a court of law as well. We may add that
relevancy of the criteria evolved by Mandal Commission (Chapter XI) has not been
questioned by any of the counsel before us. Actual identification is a different matter, which
we shall deal with elsewhere.
796-797. We may now summarise our discussion under Question No. 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, sects 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 prescribe 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 along with, other groups, classes and sections of people.
One can start the process with the castes, wherever they are found, apply the criteria (evolved
for determining backwardness) and find out whether it satisfies 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
118
majority of the country’s population, one can well begin with it and then go to other groups,
sections and classes. (c) It is not necessary for a class to be designated as a backward class
that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (d) ‘Creamy layer’ can
be, and must be, excluded. (e) It is not correct to say that the backward class contemplated by
Article 16(4) is limited to the socially and educationally backward classes referred to in
Article 15(4) and Article 340. It is much wider. The test or requirement of social and
educational backwardness cannot be applied to Scheduled Castes and Scheduled Tribes, who
indubitably fall within the expression “backward class of citizens”. The accent in Article
16(4) appears to be on social backwardness. Of course, social, educational and economic
backwardness are closely intertwined in the Indian context. The classes contemplated by
Article 16(4) may be wider than those contemplated by Article 15(4).
(f) Adequacy of Representation in the Services under the State
Not only should a class be a backward class for meriting reservations, it should also
be inadequately represented in the services under the State. The language of clause (4) makes
it clear that the question whether a backward class of citizens is not adequately represented in
the services under the State is a matter within the subjective satisfaction of the State. This is
evident from the fact that the said requirement is preceded by the words “in the opinion of the
State”. This opinion can be formed by the State on its own, i.e., on the basis of the material it
has in its possession already or it may gather such material through a Commission/
Committee, person or authority. All that is required is, there must be some material upon
which the opinion is formed. Indeed, in this matter the court should show due deference to the
opinion of the State, which in the present context means the executive. The executive is
supposed to know the existing conditions in the society, drawn as it is from among the
representatives of the people in Parliament/Legislature. It does not, however, mean that the
opinion formed is beyond judicial scrutiny altogether.
Question 4 : (a) Whether backward classes can be identified only and exclusively with
reference to the economic criterion?
It follows from the discussion under Question No. 3 that a backward class cannot be
determined only and exclusively with reference to economic criterion. It may be a
consideration or basis along with and in addition to social backwardness, but it can never be
the sole criterion. This is the view uniformly taken by this Court and we respectfully agree
with the same.
(b) Whether a backward class can be identified on the basis of occupation-cum-income
without reference to caste?
In Chitralekha, this court held that such an identification is permissible. We see no
reason to differ with the said view inasmuch as this is but another method to find socially
backward classes. Indeed, this test in the Indian context is broadly the same as the one
adopted by the Mandal Commission. While answering Question 3(b), we said that
identification of backward classes can be done with reference to castes along with other
occupational groups, communities and classes. We did not say that that is the only
permissible method. Indeed, there may be some groups or classes in whose case caste may
not be relevant to all. For example, agricultural labourers, rickshaw-pullers/drivers, streethawkers etc. may well qualify for being designated as Backward Classes.
119
Question No. 5 : Whether Backward Classes can be further divided into backward and
more backward categories?
We are of the opinion that there is no constitutional or legal bar to a State
categorising the backward classes as backward and more backward. We are not saying that it
ought to be done. We are concerned with the question if a State makes such a categorisation,
whether it would be invalid? We think not. Let us take the criteria evolved by Mandal
Commission. Any caste, group or class which scored eleven or more points was treated as a
backward class. Now, it is not as if all the several thousands of castes/groups/classes scored
identical points. There may be some castes/groups/classes which have scored points between
20 to 22 and there may be some who have scored points between eleven and thirteen. It
cannot reasonably be denied that there is no difference between these two sets of
castes/groups/classes. To give an illustration, take two occupational groups viz., goldsmiths
and vaddes (traditional stone-cutters in Andhra Pradesh) both included within Other
Backward Classes. None can deny that goldsmiths are far less backward than vaddes. If both
of them are grouped together and reservation provided, the inevitable result would be that
goldsmiths would take away all the reserved posts leaving none for vaddes. In such a
situation, a State may think it advisable to make a categorisation even among other backward
classes so as to ensure that the more backward among the backward classes obtain the
benefits intended for them. Where to draw the line and how to effect the sub-classification is,
however, a matter for the Commission and the State – and so long as it is reasonably done, the
Court may not intervene. In this connection, reference may be made to the categorisation
obtaining in Andhra Pradesh. The Backward Classes have been divided into four categories.
Group A comprises “Aboriginal tribes, Vimukta jatis, nomadic and semi-nomadic tribes etc.”
Group B comprises professional group like tappers, weavers, carpenters, ironsmiths,
goldsmiths, kamsalins, etc. Group C pertains to “Scheduled Castes converts to Christianity
and their progeny”, while Group D comprises all other classes/communities/groups, which
are not included in Groups A, B and C. The 25% vacancies reserved for backward classes are
sub-divided between them in proportion to their respective population. This is merely to show
that even among backward classes, there can be a sub-classification on a reasonable basis.
There is another way of looking at this issue. Article 16(4) recognises only one class
viz., “backward class of citizens”. It does not speak separately of Scheduled Castes and
Scheduled Tribes, as does Article 15(4). Even so, it is beyond controversy that Scheduled
Castes and Scheduled Tribes are also included in the expression “backward class of citizens”
and that separate reservations can be provided in their favour. It is a well-accepted
phenomenon throughout the country. What is the logic behind it? It is that if Scheduled
Tribes, Scheduled Castes and Other Backward Classes are lumped together, OBCs will take
away all the vacancies leaving Scheduled Castes and Scheduled Tribes high and dry. The
same logic also warrants categorisation as between more backward and backward. We do not
mean to say that this should be done. We are only saying that if a State chooses to do it, it is
not impermissible in law.
120
(Question Nos. 6, 7 and 8)
Question 6:
To what extent can the reservation be made?
(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution
or rule of prudence?
(b) Whether the 50% rule, if any, is confined to reservations made under clause (4) of
Article 16 or whether it takes in all types of reservations that can be provided under
Article 16?
(c) Further, while applying 50% rule, if any, whether a year should be taken as a unit
or whether the total strength of the cadre should be looked to?
(d) Was Devadasan correctly decided?
In Balaji, a Constitution Bench of this Court rejected the argument that in the
absence of a limitation contained in Article 15(4), no limitation can be prescribed by the
Court on the extent of reservation. It observed that a provision under Article 15(4) being a
“special provision” must be within reasonable limits. It may be appropriate to quote the
relevant holding from the judgment:
“When Article 15(4) refers to the special provision for the advancement of
certain classes or Scheduled Castes and Scheduled Tribes, it must not be ignored that
the provision which is authorised to be made is a special provision; it is not a
provision which is exclusive in character, so that in looking after the advancement of
those classes, the State would be justified in ignoring altogether the advancement of
the rest of the society. It is because the interests of the society at large would be
served by promoting the advancement of the weaker elements in the society that
Article 15(4) authorises special provision to be made. But if a provision which is in
the nature of an exception completely excludes the rest of the society, that clearly is
outside the scope of Article 15(4). It would be extremely unreasonable to assume that
in enacting Article 15(4) the Parliament intended to provide that where the
advancement of the Backward Classes or the Scheduled Castes and Tribes was
concerned, the fundamental rights of the citizens constituting the rest of the society
were to be completely and absolutely ignored… A special provision contemplated by
Article 15(4) like reservation of posts and appointments contemplated by Article
16(4) must be within reasonable limits. The interests of weaker sections of society
which are a first charge on the States and the Centre 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 Article 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 Devadasan this rule of 50% was applied to a case arising under Article 16(4) and on that
basis the carry-forward rule was struck down.
121
We must, however, point out that clause (4) speaks of adequate representation and
not proportionate representation. Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is accepted only in Articles 330 and
332 of the Constitution and that too for a limited period. These articles speak of reservation of
seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled
Castes proportionate to their population, but they are only temporary and special provisions.
It is therefore not possible to accept the theory of proportionate representation though the
proportion of population of backward classes to the total population would certainly be
relevant. Just as every power must be exercised reasonably and fairly, the power conferred by
clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits
– and what is more reasonable than to say that reservation under clause (4) shall not exceed
50% of the appointments or posts, barring certain extraordinary situations as explained
hereinafter. From this point of view, the 27% reservation provided by the impugned
Memorandums in favour of backward classes is well within the reasonable limits. Together
with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of
49.5%.
It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality
and equality of opportunity and that clause (4) of Article 16 is but a means of achieving the
very same objective. Clause (4) is a special provision – though not an exception to clause (1).
Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article
16(4) – conceived in the interest of certain sections of society – should be balanced against the
guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to
every citizen and to the entire society. It is relevant to point out that Dr Ambedkar himself
contemplated reservation being “confined to a minority of seats”. No other member of the
Constituent Assembly suggested otherwise. It is, thus, clear that reservation of a majority of
seats was never envisaged by the Founding Fathers. Nor are we satisfied that the present
context requires us to depart from that concept.
From the above discussion, the irresistible conclusion that follows is that the
reservations contemplated in clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain
extraordinary situations inherent in the great diversity of this country and the people. It might
happen that in farflung and remote areas the population inhabiting those areas might, on
account of their being out of the mainstream of national life and in view of conditions
peculiar to and characteristical to them, need to be treated in a different way, some relaxation
in this strict rule may become imperative. In doing so, extreme caution is to be exercised and
a special case made out.
In this connection it is well to remember that the reservations under Article 16(4) do
not operate like a communal reservation. It may well happen that some members belonging
to, say, Scheduled Castes get selected in the open competition field on the basis of their own
merit; they will not be counted against the quota reserved for Scheduled Castes; they will be
treated as open competition candidates.
We are also of the opinion that this rule of 50% applies only to reservations in
favour of backward classes made under Article 16(4). A little clarification is in order at this
122
juncture: all reservations are not of the same nature. There are two types of reservations,
which may, for the sake of convenience, be referred to as ‘vertical reservations’ and
‘horizontal reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes
and other backward classes [under Article 16(4)] may be called vertical reservations whereas
reservations in favour of physically handicapped [under clause (1) of Article 16] can be
referred to as horizontal reservations. Horizontal reservations cut across the vertical
reservations – what is called interlocking reservations. To be more precise, suppose 3% of the
vacancies are reserved in favour of physically handicapped persons; this would be a
reservation relatable to clause (1) of Article 16. The persons selected against this quota will
be placed in the appropriate category; if he belongs to SC category he will be placed in that
quota by making necessary adjustments; similarly, if he belongs to open competition (OC)
category, he will be placed in that category by making necessary adjustments. Even after
providing for these horizontal reservations, the percentage of reservations in favour of
backward class of citizens remains – and should remain – the same. This is how these
reservations are worked out in several States and there is no reason not to continue that
procedure.
It is, however, made clear that the rule of 50% shall be applicable only to
reservations proper; they shall not be – indeed cannot be – applicable to exemptions,
concessions or relaxations, if any, provided to ‘Backward Class of Citizens’ under Article
16(4).
The next aspect of this question is whether a year should be taken as the unit or the
total strength of the cadre, for the purpose of applying the 50% rule. Balaji does not deal with
this aspect but Devadasan (majority opinion) does. Mudholkar, J speaking for the majority
says:
“We would like to emphasise that the guarantee contained in Article 16(1) is for
ensuring equality of opportunity for all citizens relating to employment, and to
appointments to any office under the State. This means that on every occasion for
recruitment the State should see that all citizens are treated equally. The guarantee is
to each individual citizen and, therefore, every citizen who is seeking employment or
appointment to an office under the State is entitled to be afforded an opportunity for
seeking such employment or appointment whenever it is intended to be filled. In
order to effectuate the guarantee each year of recruitment will have to be considered
by itself and the reservation for backward communities should not be so excessive as
to create a monopoly or to disturb unduly the legitimate claims of other
communities.”
On the other hand, is the approach adopted by Ray, CJ in Thomas. While not disputing the
correctness of the 50% rule he seems to apply it to the entire service as such. In our opinion,
the approach adopted by Ray, CJ would not be consistent with Article 16. True it is that the
backward classes, who are victims of historical social injustice, which has not ceased fully as
yet, are not properly represented in the services under the State but it may not be possible to
redress this imbalance in one go i.e., in a year or two. The position can be better explained by
taking an illustration. Take a unit/service/cadre comprising 1000 posts. The reservation in
favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which
means that out of the 1000 posts 500 must be held by the members of these classes i.e., 270
123
by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given
point of time, let us say, the number of members of OBCs in the unit/service/category is only
50, a short fall of 220. Similarly the number of members of Scheduled Castes and Scheduled
Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is
taken as a unit and the backlog is sought to be made up, then the open competition channel
has to be choked altogether for a number of years until the number of members of all
backward classes reaches 500 i.e., till the quota meant for each of them is filled up. This may
take quite a number of years because the number vacancies arising each year are not many.
Meanwhile, the members of open competition category would become age barred and
ineligible. Equality of opportunity in their case would become a mere mirage. It must be
remembered that the equality of opportunity guaranteed by clause (1) is to each individual
citizen of the country while clause (4) contemplates special provision being made in favour of
socially disadvantaged classes. Both must be balanced against each other. Neither should be
allowed to eclipse the other. For the above reason, we hold that for the purpose of applying
the rule of 50% a year should be taken as the unit and not the entire strength of the cadre,
service or the unit, as the case may be.
(d) Was Devadasan correctly decided?
The rule (providing for carry-forward of unfilled reserved vacancies as modified in
1955) struck down in Devadasan reads as follows:
“3(a) If a sufficient number of candidates considered suitable by the recruiting
authorities, are not available from the communities for whom reservations are made
in a particular year, the unfilled vacancies should be treated as unreserved and filled
by the best available candidates. The number of reserved vacancies thus treated as
unreserved will be added as an additional quota to the number that would be reserved
in the following year in the normal course; and to the extent to which approved
candidates are not available in that year against this additional quota, a corresponding
addition should be made to the number of reserved vacancies in the second following
year.”
The facts of the case relevant for our purpose are the following:
(i) Reservation in favour of Scheduled Castes and Scheduled Tribes was
12.5% and 5% respectively;
(ii) In 1960, UPSC issued a notification proposing to hold a limited
competitive examination for promotion to the category of Assistant Superintendents
in Central Secretariat Services. 48 vacancies were to be filled, out of which 16 were
unreserved while 32 were reserved for Scheduled Castes/ Scheduled Tribes, because
of the operation of the carry-forward rule; 28 vacancies were actually carried
forward;
(iii) UPSC recommended 16 for unreserved and 30 for reserved vacancies – a
total of 46;
(iv) The Government however appointed in all 45 persons, out of whom 29
belonged to Scheduled Castes/Scheduled Tribes.
124
The said rule and the appointments made on that basis were questioned mainly on the ground
that they violated the 50% rule enunciated in Balaji. It was submitted that by virtue of the
carry-forward rule, 65% of the vacancies for the year in question came to be reserved for
Scheduled Castes/Scheduled Tribes.
The majority, speaking through Mudholkar, J. upheld the contention of the
petitioners and struck down the rule purporting to apply the principle of Balaji.
We are of the respectful opinion that on its own reasoning, the decision insofar as it
strikes down the rule is not sustainable. The most that could have been done in that case was
to quash the appointments in excess of 50%, inasmuch as, as a matter of fact, more than 50%
of the vacancies for the year 1960 came to be reserved by virtue of the said rule. But it would
not be correct to presume that that is the necessary and the only consequence of that rule. Let
us take the very illustration given at pp. 691-92, – namely 100 vacancies arising in three
successive years and 18% being the reservation quota – and examine. Take a case, where in
the first year, out of 18 reserved vacancies 9 are filled up and 9 are carried-forward. Similarly,
in the second year again, 9 are filled up and another 9 are carried-forward. Result would be
that in the third year, 9 + 9 + 18 = 36 (out of a total of 100) would be reserved which would
be far less than 50%; the rule in Balaji is not violated. But by striking down the rule itself,
carrying forward of vacancies even in such a situation has become impermissible, which
appears to us indefensible in principle. We may also point out that the premise made in Balaji
and reiterated in Devadasan to the effect that clause (4) is an exception to clause (1) is no
longer acceptable, having been given up in Thomas. It is for this reason that in Karamchari
Sangh Krishna Iyer, J explained Devadasan in the following words:
“In Devadasan case the Court went into the actuals, not into the hypotheticals.
This is most important. The Court actually verified the degree of deprivation of the
‘equal opportunity’ right ….
What is striking is that the Court did not take an academic view or make a
notional evaluation but checked up to satisfy itself about the seriousness of the
infraction of the right…Mathematical calculations, departing from realities of the
case, may startle us without justification, the apprehension being misplaced. All that
we need say is that the Railway Board shall take care to issue instructions to see that
in no year shall SC and ST candidates be actually appointed to substantially more
than 50% of the promotional posts. Some excess will not affect as mathematical
precision is difficult in human affairs, but substantial excess will void the selection.
Subject to this rider or condition that the ‘carry-forward’ rule shall not result, in any
given year, in the selection or appointments of SC and ST candidates considerably in
excess of 50% we uphold Annexure I.”
We are in respectful agreement with the above statement of law. Accordingly, we overrule the
decision in Devadasan. We have already discussed and explained the 50% rule. The same
position would apply in the case of carry-forward rule as well. We, however, agree that a year
should be taken as the unit or basis, as the case may be, for applying the rule of 50% and not
the entire cadre strength.
Question No. 7 : Whether clause (4) of Article 16 provides reservation only in the matter of
initial appointments/direct recruitment or does it contemplate and provide for reservations
being made in the matter of promotion as well?
125
The petitioners’ submission is that the reservation of appointments or posts
contemplated by clause (4) is only at the stage of entry into State service, i.e., direct
recruitment. It is submitted that providing for reservation thereafter in the matter of promotion
amounts to a double reservation and if such a provision is made at each successive stage of
promotion it would be a case of reservation being provided that many times. It is also
submitted that by providing reservation in the matter of promotion, the member of a reserved
category is enabled to leap-frog over his compatriots, which is bound to generate acute heartburning and may well lead to inefficiency in administration. The members of the open
competition category would come to think that whatever be their record and performance, the
members of reserved categories would steal a march over them, irrespective of their
performance and competence. Examples are given how two persons (A) and (B), one
belonging to O.C. category and the other belonging to reserved category, having been
appointed at the same time, the member of the reserved category gets promoted earlier and
how even in the promoted category he jumps over the members of the O.C. category already
there and gains a further promotion and so on. This would generate, it is submitted, a feeling
of disheartening which kills the spirit of competition and develops a sense of
disinterestedness among the members of O.C. category. It is pointed out that once persons
coming from different sources join a category or class, they must be treated alike thereafter in
all matters including promotions and that no distinction is permissible on the basis of their
“birth-mark”. It is also pointed out that even the Constituent Assembly debates on draft
Article 10(3) do not indicate in any manner that it was supposed to extend to promotions as
well. It is further submitted that if Article 16(4) is construed as warranting reservation even in
the matter of promotion it would be contrary to the mandate of Article 335 viz., maintenance
of efficiency in administration. It is submitted that such a provision would amount to putting a
premium upon inefficiency. The members of the reserved category would not work hard since
they do not have to compete with all their colleagues but only within the reserved category
and further because they are assured of promotion whether they work hard and efficiently or
not. Such a course would also militate against the goal of excellence referred to in clause (j)
of Article 51-A (Fundamental Duties).
Reservation in the case of promotion is normally provided only where the promotion
is by selection i.e., on the basis of merit. For, if the promotion is on the basis of seniority,
such a rule may not be called for; in such a case the position obtaining in the lower category
gets reflected in the higher category (promotion category) also. Where, however, promotion is
based on merit, it may happen that members of backward classes may not get selected in the
same proportion as is obtaining in the lower category. With a view to ensure similar
representation in the higher category also, reservation is thought of even in the matter of
promotion based on selection. This is, of course, in addition to the provision for reservation at
the entry (direct recruitment) level.
This was the position in Rangachari. Secondly, there may be a service/class/category, to
which appointment is made partly by direct recruitment and partly by promotion (i.e.,
promotion on the basis of merit). If no provision is made for reservation in promotions, the
backward class members may not be represented in this category to the extent prescribed. We
may give an illustration to explain what we are saying. Take the category of Assistant
Engineers in a particular service where 50% of the vacancies arising in a year are filled up by
direct recruitment and 50% by promotion (by selection i.e., on merit basis) from among
126
Junior Engineers. If provision for reservation is made only in the matter of direct recruitment
but not in promotions, the result may be that members of backward classes (where quota, let
us say, is 25%) would get in to that extent only in the 50% direct recruitment quota but may
not get in to that extent in the balance 50% promotion quota. It is for this reason that
reservation is thought of even in the matter of promotions, particularly where promotions are
on the basis of merit. The question for our consideration, however, is whether Article 16(4)
contemplates and permits reservation only in the matter of direct recruitment or whether it
also warrants provision being made for reservation in the matter of promotions as well.
Validity of a number of circulars issued by the Railway Administration was
questioned in Karamchari Sangh – a petition under Article 32. The experience gained over
the years disclosed that reservation of appointments/posts in favour of SC/STs, though made
both at the stage of initial recruitment and promotion was not achieving the intended results,
inasmuch as several posts meant for them remained unfilled by them. Accordingly, the
Administration issued several circulars from time to time extending further concessions and
other measures to ensure that members of these categories avail of the posts reserved for them
fully. These circulars contemplated (i) giving one grade higher to SC/ST candidates than is
assignable to an employee, (ii) carrying forward vacancies for a period of three years and (iii)
provision for in-service training and coaching (after promotion) to raise the level of efficiency
of SC/ST employees who were directed to be promoted on a temporary basis for a specified
period, even if they did not obtain the requisite places. The contention of the writ petitioners
was that these circulars, being inconsistent with the mandate of Article 335, are bad.
Rangachari was sought to be reopened by arguing that Article 16(4) does not take in
reservation in the matter of promotion. The carry-forward rule was also upheld subject to the
condition that the operation of the rule shall not result, in any given year, in
selection/appointment of Scheduled Caste/Scheduled Tribe candidates in excess of 50%.
We find it difficult to agree with the view in Rangachari that Article 16(4)
contemplates or permits reservation in promotions as well. It is true that the expression
“appointment” takes in appointment by direct recruitment, appointment by promotion and
appointment by transfer. It may also be that Article 16(4) contemplates not merely
quantitative but also qualitative support to backward class of citizens. But this question has
not to be answered on a reading of Article 16(4) alone but on a combined reading of Article
16(4) and Article 335.
We see no justification to multiply ‘the risk’, which would be the consequence of
holding that reservation can be provided even in the matter of promotion. While it is certainly
just to say that a handicap should be given to backward class of citizens at the stage of initial
appointment, it would be a serious and unacceptable inroad into the rule of equality of
opportunity to say that such a handicap should be provided at every stage of promotion
throughout their career. That would mean creation of a permanent separate category apart
from the mainstream – a vertical division of the administrative apparatus. The members of
reserved categories need not have to compete with others but only among themselves. There
would be no will to work, compete and excel among them. Whether they work or not, they
tend to think, their promotion is assured. This in turn is bound to generate a feeling of
despondence and ‘heart-burning’ among open competition members. All this is bound to
affect the efficiency of administration. Putting the members of backward classes on a fast-
127
track would necessarily result in leap-frogging and the deleterious effects of “leap-frogging”
need no illustration at our hands. At the initial stage of recruitment reservation can be made in
favour of backward class of citizens but once they enter the service, efficiency of
administration demands that these members too compete with others and earn promotion like
all others; no further distinction can be made thereafter with reference to their “birth-mark”,
as one of the learned Judges of this Court has said in another connection. They are expected
to operate on equal footing with others. Crutches cannot be provided throughout one’s career.
That would not be in the interest of efficiency of administration nor in the larger interest of
the nation. It is wrong to think that by holding so, we are confining the backward class of
citizens to the lowest cadres. It is well-known that direct recruitment takes place at several
higher levels of administration and not merely at the level of Class IV and Class III. Direct
recruitment is provided even at the level of All India Services. Direct recruitment is provided
at the level of District Judges, to give an example nearer home. It may also be noted that
during the debates in the Constituent Assembly, none referred to reservation in promotions; it
does not appear to have been within their contemplation.
It is true that Rangachari has been the law for more than 30 years and that attempts
to re-open the issue were repelled in Karamchari Sangh. It may equally be true that on the
basis of that decision, reservation may have been provided in the matter of promotion in some
of the Central and State services but we are convinced that the majority opinion in
Rangachari to the extent it holds, that Article 16(4) permits reservation even in the matter of
promotion, is not sustainable in principle and ought to be departed from. However, taking into
consideration all the circumstances, we direct that our decision on this question shall operate
only prospectively and shall not affect promotions already made, whether on temporary,
officiating or regular/permanent basis. It is further directed that wherever reservations are
already provided in the matter of promotion – be it Central Services or State Services, or for
that matter services under any corporation, authority or body falling under the definition of
‘State’ in Article 12 – such reservations shall continue in operation for a period of five years
from this day. Within this period, it would be open to the appropriate authorities to revise,
modify or re-issue the relevant Rules to ensure the achievement of the objective of Article
16(4). If any authority thinks that for ensuring adequate representation of ‘backward class of
citizens’ in any service, class or category, it is necessary to provide for direct recruitment
therein, it shall be open to it do so.
We must also make it clear that it would not be impermissible for the State to extend
concessions and relaxations to members of reserved categories in the matter of promotion
without compromising the efficiency of the administration. The relaxation concerned in
Thomas and the concessions namely carrying forward of vacancies and provisions for inservice coaching/training in Karamchari Sangh are instances of such concessions and
relaxations. However, it would not be permissible to prescribe lower qualifying marks or a
lesser level of evaluation for the members of reserved categories since that would
compromise the efficiency of administration. We reiterate that while it may be permissible to
prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs –
consistent with the efficiency of administration and the nature of duties attaching to the office
concerned – in the matter of direct recruitment, such a course would not be permissible in the
matter of promotions for the reasons recorded hereinabove.
128
Question No. 8 : Whether Reservations are anti-meritarian?
In Balaji and other cases, it was assumed that reservations are necessarily antimeritarian. For example, in Janki Prasad Parimoo it was observed, “it is implicit in the idea
of reservation that a less meritorious person be preferred to another who is more
meritorious”. To the same effect is the opinion of Khanna, J in Thomas, though it is a
minority opinion. Even Subba Rao, J who did not agree with this view did recognize some
force in it. In his dissenting opinion in Devadasan while holding that there is no conflict
between Article 16(4) and Article 335, he did say, “it is inevitable in the nature of reservation
that there will be a lowering of standards to some extent”, but, he said, on that account the
provision cannot be said to be bad, inasmuch as in that case, the State had, as a matter of fact,
prescribed minimum qualifications, and only those possessing such minimum qualifications
were appointed.
It is submitted by the learned counsel for petitioners that reservation necessarily
means appointment of less meritorious persons, which in turn leads to lowering of efficiency
of administration. The submission, therefore, is that reservation should be confined to a small
minority of appointments/posts, – in any event, to not more than 30%, the figure referred to in
the speech of Dr Ambedkar in the Constituent Assembly. The mandate of Article 335, it is
argued, implies that reservations should be so operated as not to affect the efficiency of
administration. Even Article 16 and the directive of Article 46, it is said, should be read
subject to the aforesaid mandate of Article 335.
We do not think it necessary to express ourselves at any length on the correctness or
otherwise of the opposing points of view referred to above. (It is, however, necessary to point
out that the mandate of Article 335 is to take the claims of members of SC/ST into
consideration, consistent with the maintenance of efficiency of administration. It would be a
misreading of the article to say that the mandate is maintenance of efficiency of
administration.) Maybe, efficiency, competence and merit are not synonymous concepts;
maybe, it is wrong to treat merit as synonymous with efficiency in administration and that
merit is but a component of the efficiency of an administrator. Even so, the relevance and
significance of merit at the stage of initial recruitment cannot be ignored. It cannot also be
ignored that the very idea of reservation implies selection of a less meritorious person. At the
same time, we recognise that this much cost has to be paid, if the constitutional promise of
social justice is to be redeemed. We also firmly believe that given an opportunity, members of
these classes are bound to overcome their initial disadvantages and would compete with – and
may, in some cases, excel – members of open competition. It is undeniable that nature has
endowed merit upon members of backward classes as much as it has endowed upon members
of other classes and that what is required is an opportunity to prove it. It may not, therefore,
be said that reservations are anti-meritarian. Merit there is even among the reserved
candidates and the small difference, that may be allowed at the stage of initial recruitment is
bound to disappear in course of time. These members too will compete with and improve
their efficiency along with others.
Having said this, we must append a note of clarification. In some cases arising under
Article 15, this Court has upheld the removal of minimum qualifying marks, in the case of
Scheduled Caste/Scheduled Tribe candidates, in the matter of admission to medical courses.
For example, in State of M.P. v. Nivedita Jain [(1982) 1 SCR 759], admission to medical
129
course was regulated by an entrance test (called Pre-Medical Test). For general candidates,
the minimum qualifying marks were 50% in the aggregate and 33% in each subject. For
Scheduled Caste/Scheduled Tribe candidates, however, it was 40% and 30% respectively. On
finding that Scheduled Caste/Scheduled Tribe candidates equal to the number of the seats
reserved for them did not qualify on the above standard, the Government did away with the
said minimum standard altogether. The Government’s action was challenged in this Court but
was upheld. Since it was a case under Article 15, Article 335 had no relevance and was not
applied. But in the case of Article 16, Article 335 would be relevant and any order on the
lines of the order of the Government of Madhya Pradesh (in Nivedita Jain) would not be
permissible, being inconsistent with the efficiency of administration. To wit, in the matter of
appointment of Medical Officers, the Government or the Public Service Commission cannot
say that there shall be no minimum qualifying marks for Scheduled Caste/Scheduled Tribe
candidates, while prescribing a minimum for others. It may be permissible for the
Government to prescribe a reasonably lower standard for Scheduled Castes/Scheduled
Tribes/Backward Classes – consistent with the requirements of efficiency of administration –
it would not be permissible not to prescribe any such minimum standard at all. While
prescribing the lower minimum standard for reserved category, the nature of duties attached
to the post and the interest of the general public should also be kept in mind.
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 organisations/departments/institutions, in specialities and superspecialities in medicine, engineering and other such courses in physical sciences and
mathematics, in defence services and in the establishments 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.
As a matter of fact, the impugned Memorandum dated August 13, 1990 applies the
rule of reservation to “civil posts and services under the Government of India” only, which
means that defence forces are excluded from the operation of the rule of reservation though it
may yet apply to civil posts in defence services. Be that as it may, we are of the opinion that
in certain services and in respect of certain posts, application of the rule of reservation may
not be advisable for the reason indicated hereinbefore. Some of them are: (1) Defence
Services including all technical posts therein but excluding civil posts. (2) All technical posts
in establishments engaged in Research and Development including those connected with
atomic energy and space and establishments engaged in production of defence equipment. (3)
Teaching posts of Professors – and above, if any. (4) Posts in super-specialities in Medicine,
engineering and other scientific and technical subjects. (5) Posts of pilots (and co-pilots) in
Indian Airlines and Air India. The list given above is merely illustrative and not exhaustive. It
is for the Government of India to consider and specify the service and posts to which the rule
of reservation shall not apply but on that account the implementation of the impugned Office
Memorandum dated August 13, 1990 cannot be stayed or withheld.
130
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.
We may add that we see no particular relevance of Article 38(2) in this context.
Article 16(4) is also a measure to ensure equality of status besides equality of opportunity.
(Questions 9, 10 & 11 and Other Miscellaneous Questions)
Question No. 9 : Will the extent of judicial review be limited or restricted in regard to the
identification of Backward Classes and the percentage of reservations made for such
classes, to a demonstrably perverse identification or a demonstrably unreasonable
percentage?
It is enough to say on this question that there is no particular or special standard of
judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4).
The extent and scope of judicial scrutiny depends upon the nature of the subject-matter, the
nature of the right affected, the character of the legal and constitutional provisions applicable
and so on. The acts and orders of the State made under Article 16(4) do not enjoy any
particular kind of immunity. At the same time, we must say that court would normally extend
due deference to the judgment and discretion of the executive – a co-equal wing –in these
matters. The political executive, drawn as it is from the people and represent as it does the
majority will of the people, is presumed to know the conditions and the needs of the people
and hence its judgment in matters within its judgment and discretion will be entitled to due
weight. More than this, it is neither possible nor desirable to say. It is not necessary to answer
the question as framed.
Questions No. 10 : Whether the distinction made in the second Memorandum between
‘poorer sections’ of the backward classes and others permissible under Article 16?
While dealing with Question No. 3(d), we held that that exclusion of ‘creamy layer’
must be on the basis of social advancement (such advancement as renders them misfits in the
backward classes) and not on the basis of mere economic criteria. At the same time, we held
that income or the extent of property held by a person can be taken as a measure of social
advancement and on that basis ‘creamy layer’ of a given caste/community/occupational group
can be excluded to arrive at a true backward class. Under Question No. 5, we held that it is
not impermissible for the State to categorise backward classes into backward and more
backward on the basis of their relative social backwardness. We had also given the illustration
of two occupational groups, viz., goldsmiths and vaddes (traditional stone-cutters in Andhra
Pradesh); both are included within ‘other backward classes’. If these two groups are lumped
together and a common reservation is made, the goldsmiths would walk away with all the
vacancies leaving none for vaddes. From the said point of view, it was observed, such
classification among the designated backwards classes may indeed serve to help the more
backward among them to get their due. But the question now is whether clause (i) of the
131
Office Memorandum dated September 25, 1991 is sustainable in law. The said clause
provides for preference in favour of “poorer sections” of the backward classes over other
members of the backward classes. On first impression, it may appear that backward classes
are classified into two sub-groups on the basis of economic criteria alone and a preference
provided in favour of the poorer sections of the backward classes. In our considered opinion,
however, such an interpretation would not be consistent with context in which the said
expression is used and the spirit underlying the clause nor would it further the objective it
seeks to achieve. The object of the clause is to provide a preference in favour of more
backward among the “socially and educationally backward classes”. In other words, the
expression ‘poorer sections’ was meant to refer to those who are socially and economically
more backward. The use of the word ‘poorer’, in the context, is meant only as a measure of
social backwardness. (Of course, the Government is yet to notify which classes among the
designated backward classes are more socially backward, i.e., ‘poorer sections’). Understood
in this sense, the said classification is not and cannot be termed as invalid either
constitutionally speaking or in law. The next question that arises is: what is the meaning and
context of the expression ‘preference’? Having regard to the fact the backward classes are
sought to be divided into two sub-categories, viz., backward and more backward, the
expression ‘preference’ must be read down to mean an equitable apportionment of the
vacancies reserved (for backward classes) among them. The object evidently could not have
been to deprive the ‘backward’ altogether from benefit of reservation, which could be the
result if word ‘preference’ is read literally – if the ‘more backward’ take away all the available
vacancies/posts reserved for OBCs, none would remain for ‘backward’ among the OBCs. It is
for this reason that we are inclined to read down the expression to mean an equitable
apportionment. This, in our opinion, is the proper and reasonable way of understanding the
expression ‘preference’ in the context in which it occurs. By giving the above interpretation,
we would be effectuating the underlying purpose and the true intention behind the clause.
It shall be open to the Government to notify which classes among the several
designated other backward classes are more backward for the purposes of this clause and the
apportionment of reserved vacancies/posts among ‘backward’ and “more backward”. On such
notification, the clause will become operational.
Questions No. 11 : Whether the reservation of 10% of the posts in favour of ‘other
economically backward sections of the people who are not covered by any of the existing
schemes of the reservations’ made by the Office Memorandum dated September 25, 1991
permissible under Article 16?
This clause provides for a 10% reservation (in appointments/posts) in favour of
economically backward sections among the open competition (non-reserved) category.
Though the criteria is not yet evolved by the Government of India, it is obvious that the basis
is either the income of a person and/or the extent of property held by him. The impugned
Memorandum does not say whether this classification is made under clause (4) or clause (1)
of Article 16. Evidently, this classification among a category outside clause (4) of Article 16
is not and cannot be related to clause (4) of Article 16. If at all, it is relatable to clause (1).
Even so, we find it difficult to sustain. Reservation of 10% of the vacancies among open
competition candidates on the basis of income/property-holding means exclusion of those
above the demarcating line from those 10% seats. The question is whether this is
132
constitutionally permissible? We think not. It may not be permissible to debar a citizen from
being considered for appointment to an office under the State solely on the basis of his
income or property-holding. Since the employment under the State is really conceived to
serve the people (that it may also be a source of livelihood is secondary) no such bar can be
created. Any such bar would be inconsistent with the guarantee of equal opportunity held out
by clause (1) of Article 16. On this ground alone, the said clause in the Office Memorandum
dated May 25, 1991 fails and is accordingly declared as such.
Dr Rajeev Dhavan describes Article 15(4) as a provision envisaging programmes of
positive action and Article 16(4) as a provision warranting programmes of positive
discrimination. We are afraid we may not be able to fit these provisions into this kind of
compartmentalisation in the context and scheme of our constitutional provisions. By now, it is
well settled that reservations in educational institutions and other walks of life can be
provided under Article 15(4) just as reservations can be provided in services under Article
16(4). If so, it would not be correct to confine Article 15(4) to programmes of positive action
alone. Article 15(4) is wider than Article 16(4) inasmuch as several kinds of positive action
programmes can also be evolved and implemented thereunder (in addition to reservations) to
improve the conditions of SEBCs, Scheduled Castes and Scheduled Tribes, whereas Article
16(4) speaks only of one type of remedial measure, namely, reservation of appointments/
posts. But it may not be entirely right to say that Article 15(4) is a provision envisaging
programmes of positive action. Indeed, even programmes of positive action may sometimes
involve a degree of discrimination. For example, if a special residential school is established
for Scheduled Tribes or Scheduled Castes at State expense, it is a discrimination against other
students, upon whose education a far lesser amount is being spent by the State. Or for that
matter, take the very American cases, can it be said that they do not involve any
discrimination? They do. It is another matter that such discrimination is not unconstitutional
for the reason that it is designed to achieve an important government objective.
Desirability of a Permanent Statutory Body to Examine Complaints of Overinclusion/Under-inclusion
We are of the considered view that there ought to be a permanent body, in the nature
of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of
groups, classes and sections in the lists of Other Backward Classes can be made. Such body
must be empowered to examine complaints of the said nature and pass appropriate orders. Its
advice/opinion should ordinarily be binding upon the Government. Where, however, the
Government does not agree with its recommendation, it must record its reasons therefor. Even
if any new class/group is proposed to be included among the other backward classes, such
matter must also be referred to the said body in the first instance and action taken on the basis
of its recommendation. The body must be composed of experts in the field, both official and
non-official, and must be vested with the necessary powers to make a proper and effective
inquiry. It is equally desirable that each State constitutes such a body, which step would go a
long way in redressing genuine grievances. Such a body can be created under clause (4) of
Article 16 itself – or under Article 16(4) read with Article 340 – as a concomitant of the power
to identify and specify backward class of citizens, in whose favour reservations are to be
provided. We direct that such a body be constituted both at Central level and at the level of
the States within four months from today. They should become immediately operational and
133
be in a position to entertain and examine forthwith complaints and matters of the nature
aforementioned, if any, received. It should be open to the Government of India and the
respective State Governments to devise the procedure to be followed by such body. The body
or bodies so created can also be consulted in the matter of periodic revision of lists of OBCs.
As suggested by Chandrachud, CJ in Vasanth Kumar there should be a periodic revision of
these lists to exclude those who have ceased to be backward or for inclusion of new classes,
as the case my be.
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 nonHindus, there are several occupational groups, sects 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 along with, 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 the castes, wherever they are found, apply the criteria (evolved for
determining backwardness) and find out whether it satisfies 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
134
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 intertwined 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 extraordinary situations inherent in the great diversity of this country and the
people. It might happen that in far-flung and remote areas the population inhabiting those
areas might, on account of their being out of the mainstream of national life and in view
of the conditions peculiar to and characteristic of them need to be treated in a different
way, some relaxation in this strict rule may become imperative. In doing so, extreme
caution is to be exercised and a special case made out.
(c) The rule of 50% should be applied to each year. It cannot be related to the
total strength of the class, category, service or cadre, as the case may be.
(d) Devadasan was wrongly decided and is accordingly over-ruled to the extent it
is inconsistent with this judgment.
(7) Article 16(4) does not permit provision for reservations in the matter of
promotion. This rule shall, however, have only prospective operation and shall not affect
the promotions already made, whether made on regular basis or on any other basis. We
direct that our decision on this question shall operate only prospectively and shall not
affect promotions already made, whether on temporary, officiating or regular/permanent
basis. It is further directed that wherever reservations are already provided in the matter
of promotion – be it Central Services or State Services, or for that matter services under
135
any Corporation, authority or body falling under the definition of ‘State’ in Article 12 –
such reservations may continue in operation for a period of five years from this day.
Within this period, it would be open to the appropriate authorities to revise, modify or reissue the relevant rules to ensure the achievement of the objective of Article 16(4). If any
authority thinks that for ensuring adequate representation of ‘backward class of citizens’
in any service, class or category, it is necessary to provide for direct recruitment therein,
it shall be open to it to do so. It would not be impermissible for the State to extend
concessions and relaxations to members of reserved categories in the matter of promotion
without compromising the efficiency of the administration.
(8) While the rule of reservation cannot be called anti-meritarian, there are certain
services and posts to which it may not be advisable to apply the rule of reservation.
(9) There is no particular or special standard of judicial scrutiny applicable to matters
arising under Article 16(4).
(10) The distinction made in the impugned Office Memorandum dated September
25, 1991 between ‘poorer sections’ and others among the backward classes is not invalid,
if the classification is understood and operated as based upon relative backwardness
among the several classes identified as Other Backward Classes, as explained in paras
843-844 of this Judgment.
(11) The reservation of 10% of the posts in favour of ‘other economically backward
sections of the people who are not covered by any of the existing schemes of the
reservation’ made in the impugned Office Memorandum dated September 25, 1991 is
constitutionally invalid and is accordingly struck down.
(13) The Government of India and the State Governments have the power to, and
ought to, create a permanent mechanism – in the nature of a Commission – for examining
requests of inclusion and complaints of over-inclusion or non-inclusion in the list of
OBCs and to advise the Government, which advice shall ordinarily be binding upon the
Government. Where, however, the Government does not accept the advice, it must record
its reasons therefor.
(14) In view of the answers given by us herein and the directions issued herewith, it
is not necessary to express any opinion on the correctness and adequacy of the exercise
done by the Mandal Commission. It is equally unnecessary to send the matters back to the
Constitution Bench of five Judges.
For the sake of ready reference, we also record our answers to questions as
framed by the counsel for the parties and set out in para 681. Our answers question-wise
are:
(1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification
inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in
favour of backward classes, though it may not be exhaustive of the very concept of
reservation. Reservations for other classes can be provided under clause (1) of Article 16.
(2) The expression ‘backward class’ in Article 16(4) takes in ‘Other Backward
Classes’, SCs, STs and may be some other backward classes as well. The accent in
Article 16(4) is upon social backwardness. Social backwardness leads to educational
136
backwardness and economic backwardness. They are mutually contributory to each other
and are intertwined with low occupations in the Indian society. A caste can be and quite
often is a social class in India. Economic criterion cannot be the sole basis for
determining the backward class of citizens contemplated by Article 16(4). The weaker
sections referred to in Article 46 do include SEBCs referred to in Article 340 and covered
by Article 16(4).
(3) Even under Article 16(1), reservations cannot be made on the basis of economic
criteria alone.
(4) The reservations contemplated in clause (4) of Article 16 should not exceed 50%.
While 50% shall be the rule, it is necessary not to put out of consideration certain
extraordinary situations inherent in the great diversity of this country and the people. It
might happen that in far-flung and remote areas the population inhabiting those areas
might, on account of their being out of the mainstream of national life and in view of the
conditions peculiar to and characteristic of them need to be treated in a different way,
some relaxation in this strict rule may become imperative. In doing so, extreme caution is
to be exercised and a special case made out.
For applying this rule, the reservations should not exceed 50% of the appointments in
a grade, cadre or service in any given year. Reservation can be made in a service or
category only when the State is satisfied that representation of backward class of citizens
therein is not adequate.
To the extent, Devadasan is inconsistent herewith, it is over-ruled.
(5) There is no constitutional bar to classification of backward classes into more
backward and backward classes for the purposes of Article 16(4). The distinction should
be on the basis of degrees of social backwardness. In case of such classification, however,
it would be advisable – nay, necessary – to ensure equitable distribution amongst the
various backward classes to avoid lumping so that one or two such classes do not eat
away the entire quota leaving the other backward classes high and dry.
For excluding ‘creamy layer’, an economic criterion can be adopted as measure of
social advancement.
(6) A ‘provision’ under Article 16(4) can be made by an executive order. It is not
necessary that it should be made by Parliament/Legislature.
(7) No special standard of judicial scrutiny can be predicated in matters arising under
Article 16(4). It is not possible or necessary to say more than this under this question.
(8) Reservation of appointments or posts under Article 16(4) is confined to initial
appointment only and cannot extend to providing reservation in the matter of promotion.
We direct that our decision on this question shall operate only prospectively and shall not
affect promotions already made, whether on temporary, officiating or regular/permanent
basis. It is further directed that wherever reservations are already provided in the matter
of promotion – be it Central Services or State Services, or for that matter services under
any Corporation, authority or body falling under the definition of ‘State’ in Article 12 –
such reservations may continue in operation for a period of five years from this day.
Within this period, it would be open to the appropriate authorities to revise, modify or reissue the relevant rules to ensure the achievement of the objective of Article 16(4). If any
137
authority thinks that for ensuring adequate representation of ‘backward class of citizens’
in any service, class or category, it is necessary to provide for direct recruitment therein,
it shall be open to it to do so.
The following Directions are given to the Government of India, the State Governments
and the Administration of Union Territories
(A) The Government of India, each of the State Governments and the
Administrations of Union Territories shall, within four months from today, constitute a
permanent body for entertaining, examining and recommending upon requests for inclusion
and complaints of over-inclusion and under-inclusion in the lists of other backward classes of
citizens. The advice tendered by such body shall ordinarily be binding upon the Government.
(B) Within four months from today the Government of India shall specify the bases,
applying the relevant and requisite socio-economic criteria to exclude socially advanced
persons/sections (‘creamy layer’) from ‘Other Backward Classes’. The implementation of the
impugned O.M. dated August 13, 1990 shall be subject to exclusion of such socially
advanced persons (‘creamy layer’).
This direction shall not however apply to States where the reservations in favour of
backward classes are already in operation. They can continue to operate them. Such States
shall however evolve the said criteria within six months from today and apply the same to
exclude the socially advanced persons/sections from the designated ‘Other Backward
Classes’.
(C) It is clarified and directed that any and all objections to the criteria that may be
evolved by the Government of India and the State Governments in pursuance of the direction
contained in clause (B) of para 861 as well as to the classification among backward classes
and equitable distribution of the benefits of reservations among them that may be made in
terms of and as contemplated by clause (i) of the Office Memorandum dated September 25,
1991, as explained herein, shall be preferred only before this Court and not before or in any
other High Court or other Court or Tribunal. Similarly, any petition or proceeding questioning
the validity, operation or implementation of the two impugned Office Memorandums, on any
grounds whatsoever, shall be filed or instituted only before this Court and not before any High
Court or other Court or Tribunal.
The Office Memorandum dated August 13, 1990 impugned in these writ petitions is
accordingly held valid and enforceable subject to the exclusion of the socially advanced
members/sections from the notified ‘Other Backward Classes’, as explained in para 861(B).
Clause (i) of the Office Memorandum dated September 25, 1991 requires – to uphold
its validity – to be read, interpreted and understood as intending a distinction between
backward and more backward classes on the basis of degrees of social backwardness and a
rational and equitable distribution of the benefits of the reservations amongst them. To be
valid, the said clause will have to be read, understood and implemented accordingly.
Clause (ii) of the Office Memorandum dated September 25, 1991 is held invalid and
inoperative

Constitutional Validity of Reservations for OBCs inPublic EmploymentIndra Sawhney v. Union of IndiaAIR 1993 SC 477[MH Kania, CJ and MN Venkatachaliah, S Ratnavel Pandian, Dr TK Thommen, AM Ahmadi, KuldipSingh, PB Sawant, RM Sahai and BP Jeevan Reddy, JJ]

vikash Kumar

Leave a Comment Cancel Reply

Theory of Interests Roscoe Pound USA

Dicey Rule of Law Jurisprudence Concept

PYQ Top Questions DU LLB Semester 1 Faculty...

HOHFELD Theory OF RIGHTS AND DUTIES ANALYSIS

The Indian Contract Act 1872 Notes

Recent Posts

DIPANWITA ROY vs RONOBROTO ROY (SC, 2015)

Divya Pharmacy v Union of India, High Court of Uttarakhand, WP3437/2016, Decided on 21 December 2018.Sudhanshu Dhulia, J

Centre For Environment Law, WWF-I v. Union of India & Others,Supreme Court, I.A. No. 100 in Writ Petition (Civil) No....

Editor's Picks

DIPANWITA ROY vs RONOBROTO ROY (SC, 2015)

Divya Pharmacy v Union of India, High Court of Uttarakhand, WP3437/2016, Decided on 21 December 2018.Sudhanshu Dhulia, J

Centre For Environment Law, WWF-I v. Union of India & Others,Supreme Court, I.A. No. 100 in Writ Petition (Civil) No....

Lifestyle

DIPANWITA ROY vs RONOBROTO ROY (SC, 2015)

Divya Pharmacy v Union of India, High Court of Uttarakhand, WP3437/2016, Decided on 21 December 2018.Sudhanshu Dhulia, J

Centre For Environment Law, WWF-I v. Union of India & Others,Supreme Court, I.A. No. 100 in Writ Petition (Civil) No....

Categories

Login

Create Free Account

Related posts

Leave a Comment Cancel Reply