tamilnadu report on justification of reservationobc

TAMIL NADU BACKWARD CLASSES COMMISSION212, R K MUTT ROAD, MYLAPORE, CHENNAI 600 004

JUSTIFICATION OF RESERVATIONUNDER THE TAMIL NADU ACT 45 OF 1994

ON QUANTIFIABLE DATA

Submitted tothe Government of Tamil Nadu

On 8th July 2011

By

Justice Thiru.M.S.Janarthanam,Judge, Madras High Court (Retd.),

Chairman, Tamil Nadu Backward Classes Commissionand Members of the Commission

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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INDEX

Chapter Description Page No.

Foreword

Abbreviations

1 PUNCTILIOUS INTRODUCTION ..……………………………………......... 3

2 RESERVATION IN TAMIL NADU – HISTORY OF EVENTS .…………… 8

3 EVOLUTION OF THE CONSTITUTION AND DECLARATION OFINDEPENDENCE……………………………………………………………… 30

4 MARCH OF LAW IN THE MATTER OF RESERVATION .……………….. 35

5 QUALITATIVE EXCLUSION OF CREAMY LAYER – BASELESS ……… 56

6 QUANTITATIVE RESTRICTION, WHETHER QUINTESSENTIAL? ……. 63

7 BACKWARD CLASSES WITHOUT UNTOUCHABILITY WERE KEPT INDARKNESS BY FOUNDING FATHERS OF INDEPENDENT INDIA …… 71

8 JUDICIAL INTERVENTION – STUMBLING BLOCK IN CAPACITYBUILDING OF BACKWARD CLASSES AND WEAKER SECTIONS OFTHE SOCIETY …………………………………………………………........... 77

9 BASIC STRUCTURE THEORY – A DANGLING SWORD ABOVETHE HEADS OF BACKWARD CLASSES …………................................. 99

10 NEGLECT OF BACKWARD CLASSES IN APPOINTMENTS TOHIGHER JUDICIARY……………………………………………………......... 120

11 POLITICAL POWER DYNAMICS OF INDIA – A CASE STUDY ………… 127

12 RESERVATION UNDER THE TAMIL NADU ACT 45 OF 1994 –EXISTENCE OF QUANTIFIABLE DATA – JUSTIFIABILITY OROTHERWISE THEREOF……………………………………………………… 140

13 STRATEGY AND SYNERGY FOR INCLUSIVE GROWTH ……………… 180

APPENDICES

I Statements for identifying Backward Classes based on the criteria evolved byThiru.J.A.Ambasankar, IAS (Retd.), Chairman of the Tamil Nadu SecondBackward Classes Commission ……...................................................................... [A-1]

II Statements for identifying Backward Classes based on certain minor deviationsmade in the criteria evolved by the Chairman by the majority Members of theTamil Nadu Second Backward Classes Commission .……………………………… [A-26]

III List of Backward Classes, Backward Classes of Muslims, Most BackwardClasses, Denotified Communities, Scheduled Castes and Scheduled Tribes inthe State of Tamil Nadu ……………………………………………………………….. [A-63]


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ABBREVIATION

Art. Article

BC Backward Classes

DNC Denotified Communities

G.O. Government Order

GT General Turn

LPG Liberalisation, Privatisation and Globalisation

MBC Most Backward Classes

NCERT National Council of Educational Research and Training

NSSO National Sample Survey Organisation

OBC Other Backward Classes

OC Open Competition / Other Castes (as the case may be)

O.M. Office Memorandum

SC Scheduled Castes

SEBC Socially and Educationally Backward Classes

ST Scheduled Tribes

SWOT Strength, Weakness, Opportunity and Threat

Tamil Nadu Act 45 of 1994 Tamil Nadu Backward Classes, Scheduled Castes andScheduled Tribes (Reservation of seats in EducationalInstitutions and of appointments or posts in the servicesunder the State) Act,1994

TNGG Tamil Nadu Government Gazette

W.P. Writ Petition


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1. PUNCTILIOUS INTRODUCTION

1.1 The main thrust to be focused by this Commission, centers around thejustification of 69% quota of reservation made by the Tamil NaduBackward Classes, Scheduled Castes and Scheduled Tribes(Reservation of seats in Educational Institutions and of appointments orposts in the Services under the State) Act, 1993 [hereinafter ‘Tamil NaduAct 45 of 1994’], providing for reservation of 30% for Backward Classes,20% for Most Backward Classes, 18% for Scheduled Castes and 1% forScheduled Tribes, totalling to 69%, on the quantifiable data furnished bythe State as per the mandate of the Supreme Court as well as nonprovision of creamy layer exclusion thereto.

1.2 The State Government, as a matter of fact, supplied quantifiable data,materials in abundance as existed when Tamil Nadu Act 45 of 1994came into force. The Tamil Nadu Second Backward ClassesCommission popularly known as “Ambasankar Commission” was set uppursuant to the orders of the Supreme Court by Tamil Nadu Governmenton 13th December 1982 under the Chairmanship ofThiru J.A.Ambasankar, I.A.S,.(Retd.) former Chairman of Tamil NaduPublic Service Commission with adequate number of Members toconduct a Socio, Educational and Economic survey of the entirepopulace of Tamil Nadu, with a view to find out and identify Social andEducational backward class people entitled to enjoy the reservationbenefits for admission into educational institutions and professionalcolleges and for appointments or posts in the services under the State.

1.3 The said Commission conducted an elaborate survey employing 25000personnel and collected all relevant, requisite and necessary particularsof 5 crores of people in the process of identifying Socially andEducationally Backward Classes. The survey lasted for 2 years. TheMembers of the said Commission did an intensive touring to all thedistricts for more than 30 days and recorded the evidence of more than2000 witnesses.

1.4 Two seminars were held, where Members and experts in various fieldsmet and exchange ideas about the identification of Backwardness andhow to improve the lot of unfortunate Backward Classes. The ideasgathered by the census and survey was larger in number whencompared to the survey conducted by the Government of India. The saidCommission also collected population figures and the entire picture ofeach and every member of all the inhabitant of nearly 5 crore. Thefigures so collected were analysed and output tables were prepared andplaced in the hands of members.


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1.5 To determine the Social backwardness, exhaustive information aboutone lakh of families in the State were collected through a random samplesurvey for approximately 1% households in the State. More than 8.5lakh of employees of Government / Local bodies and Public SectorUndertakings were enumerated with full details of their job, their salary,their qualification and the community to which they belong.

1.6 Survey also conducted in the field of school education. About 2000schools furnished information about their students. All the 230 collegessupplied information about those undergoing studies. The particularsabout the admission to professional colleges like Medicine / Engineering/Law and Veterinary for the past three years prior to survey were alsocollected. The details of recruitment made by Tamil Nadu PublicService Commission were gathered and enumerated. The Commissionthus collected exhaustive information on all issues, Social, Educational –not to speak of economic conditions of people.

1.7 The said Commission by conducting elaborate survey identified byapplying relevant criteria evolved in consultation with experts, theSocially and Educationally Backward Classes castes and communitiesprevailing in the State. The Commission estimated the Socially,Educationally Backward Class population as 67%.

1.8 The colossus census survey was completed in 1985. The Tamil NaduAct 45 of 1994 came into existence subsequent to Indra Sawhney casein 1994. The Reservation under the said act was to the tune of 30% toBC, 20% to MBC/DNC totalling to 50%. The act further provided 18% toSC and 1% to ST. The percentage of reservation provided to SC and STwere in proportion to their population reflected by census figuresavailable then. The total reservation made to BC, MBC put together isonly 50% which is far below the socially and educationally backwardclasses of citizens estimated at 67% by the Tamil Nadu SecondBackward Classes Commission. The reservation made to BC under theTamil Nadu Act 45 of 1994 is far below to their population which wasestimated as 67%. As such reservation made in favour of BackwardClasses by the Tamil Nadu Act 45 of 1994 cannot at all be stated as notbased on quantifiable data justifying their percentage of reservation.

1.9 The reservation made to SC and ST as 19% is also proportionate to theirpopulation. In such circumstances, the reservation made by the TamilNadu Act 45 of 1994 in favour of BC, MBC, SC and ST all put together69% is fully justified taking into consideration the percentage ofpopulation of those respective classes.


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1.10 This Commission not only scanned, sifted and analysed the quantifiabledata furnished by the State but also it went further and made anelaborate study relatable to reservation pertaining to pre and postConstitution periods.

1.11 In the pre Constitution period it is not as if reservation benefits were notmade available to the citizens of the State. The success of the JusticeParty in 1920 elections brought the subject of reservation in the newlyconstituted Legislative Council. Then from 1921 onwards reservationbenefits were given to all castes and communities on the basis of sixdivisions’ viz., (1) Brahmins (2) Non-Brahmin Hindus (3) Indian Christians(4) Mohammedans (5) Europeans and Anglo Indians and (6) Others. Ofcourse, the benefits of reservation were not made on population basis.As a matter of fact, the reservation benefits availed by Brahmins weremore in excess of their population. It is because of the challenge madein the Superior Courts by the hierarchy of the higher castes, suchreservation benefits that were made, based on castes and communities,was held to be not constitutionally valid and the court also struck downthe communal G.O. The communal G.O. was struck down by the HighCourt, Chennai in 1951 and subsequently confirmed by the SupremeCourt. Since then, endless battles ensue before the Superior Courts ofjurisdiction relatable to reservation and such a battle even now persists inthe courts of law.

1.12 This Commission surveyed the various decisions emerged by theSuperior Courts of jurisdiction from 1950 to till now. Such an exercisehas been resorted to not without a purpose. Such an exercise resulted indiscussion on or about ten topics. The discussions made in ten topicsrelatable to different facets of reservation rotate on the pivot of the topicon “Justification of 69% reservation made in the Tamil Nadu Act 45 of1994 as mandated by the Supreme Court of India”. The discussion somade shows to the outside world as to how the power centres at variouslevels – executive, legislative, judicial and hierarchy of higher castesmade Herculean efforts to prevent the reservation benefits which theweaker sections of the society viz., BC, SC and ST were enjoying - inrather a bid to maintain the graded status among the various castes andcommunities remaining unaltered.

1.13 The prolonged-endless legal battle prevented in a large measureinclusive growth i.e. “broad-based growth” or otherwise “pro-poor growth”a growth, which is broad based across sectors, and inclusive of the largepart of the countries poor, disadvantaged, deprived and excludedsections of citizens.


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1.14 Tamil Nadu is a pioneering State in any field of activity. It providedreservation benefits as indicated earlier even prior to the commencementof the Constitution.

1.15 Tamil Nadu faced repentant battles initiated by the hierarchy of highercastes in courts of law in order to protect the weaker sections of thesociety comprising of BC, SC and ST. Because of reservation benefitshaving been conferred upon the downtrodden sections of the societyquite a long time before i.e. well over 100 years, education onceexclusive preserve and privilege of the hierarchy of higher caste spreadamong the weaker sections in a large measure providing jobopportunities in all walks of life in this country as well as in foreign shoresimproving their position and status in life.

1.16 Pertinent it is to refer to at this juncture, the observations made in theFinal Report dated 30.9.2006 of the Government of India OversightCommittee on the implementation of the new policy of reservation inhigher educational institutions.

“That expansion necessarily means dilution of excellence is clearly a mythand is not substantiated by the actual ground experience of four decades ofimplementation of OBC reservation. Four case studies, from AndhraPradesh, Karnataka, Kerala and Tamil Nadu show how they haveempowered the OBC in this manner. Their experience would put paid to theargument that such a reservation would seriously impact quality. Ourexperience in each state has shown that the members of the OBC canbridge the gap between them and the general candidates, provided that theyare given the opportunity to compete on equal terms. The Committee feelsthat the present opportunity would enable the country to make major stridesin building a just and inclusive society.”

1.17 It is a matter of proud privilege to state that the State of Tamil Nadualone had been enjoying the benefit of 69% reservation due to thelegislation in the shape of Tamil Nadu Act 45 of 1994 which was broughtby this Government in 1993 with a lauded motive of protecting andsafeguarding the interest of the weaker sections of the society. Thetimely action taken by the Government then, the weaker sections hadbeen enjoying the benefit of reservation all along for the past 17 yearswithout a stop improving their standard of life to an unimaginable extentand they are to enjoy such benefits by the action expected to be taken bythe Government on the report submitted by this Commission.

1.18 The present exercise by this Commission is to find out as to whether it isfeasible to save and protect the constitutional validity of the saidenactment by justifying the 69% reservation made therein by theanalysis of the quantifiable data furnished by the Government and insuch process the Commission feels satisfied that such an exercise islikely to yield dividends to maintain the 69% reservation to BC, MBC, SC


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and ST in admission to educational institutions including professionalcolleges and appointment or posts in the services under the State.

1.19 The Tamil Nadu Act 45 of 1994 has been in existence for seventeenyears since 1994. The quota for BC is 30% and the quota for MBC is20%. All along these years, neither the BC nor the MBC availed of theentirety of benefits intended for them, i.e., they have not reached up tothe total reservation made available for them. The nine-Judges Benchdecision in Indra Sawhney laid down the dictum that the line for theapplication of creamy layer should be drawn in such a way that not evena single individual belonging to such categories should be deprived of thebenefits of reservation intended for them. Therefore, the need for theapplication of creamy layer exclusion in Tamil Nadu does not at all arisefor consideration. As such, the non-inclusion of creamy layer underTamil Nadu Act 45 of 1994 is of no consequence.

1.20 This Commission appended to the report at its fag end, the Chapterunder the caption “Strategy and Synergy for Inclusive Growth”. In thatChapter among various things the introduction of reservation benefits inadmission into educational institutions as well as in the services of theState to all the citizens of this State without any omission on proportionalequality basis going by the saying“the state owes a duty to protect eachand every citizen” is advocated for implementation. Reservation on theproportional equality basis to all the citizens of this State as suggested bythis Commission, if implemented, it goes without saying that each andevery one in this State will enjoy the bliss of reservation with blithe, mirthand happiness and live in an atmosphere of peace and tranquility withoutany sort of animosity and tension, feeling that everyone is treated on anequal footing in all activities relatable to the governance of the State.

1.21 This Commission fervently hopes that the Hon’ble Chief Minister willhave no hesitation in accepting the report of this Commission and passnecessary and requisite orders for maintaining the 69% reservationprevailing in the State of Tamil Nadu.


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2. RESERVATION IN TAMIL NADU – HISTORY OF EVENTS

1921 (1) The success of the Justice party in the 1920 Elections brought thesubject of reservation in the newly constituted Legislative Council. InAugust 1921, a resolution was passed in the State Legislative Councilrecommending to the Government that steps should be taken toincrease the proportion of posts in Government offices held by non-Brahmin Community. Instructions were accordingly issued in G.O.No.613, Public Department, dated 16.9.1921 to all Heads ofDepartments. To monitor the implementation of this order the Heads ofDepartments, Collectors and District Judges were directed to submit toGovernment Half-yearly returns showing the number of men newlyentertained in the permanent service during the Half-year under thefollowing Heads.

1. Brahmins2. Non-Brahmin Hindus3. Indian Christian4. Muhammadans5. Europeans and Anglo Indians and6. Others

This came to be known as the first communal Government order.

1922 (1) The Government agreed to apply the principle of communal distributionboth at the time of initial recruitment and at every point at which menwere promoted wholly by selection and not by seniority. In order tosecure satisfactory information as to the representation of the variouscommunities in the different branches of the public service, an annualreturn showing the extent to which each of the six main sub divisionswas represented in each department was ordered to be submitted toGovernment in G.O. Ms. No.658, Public Department, dated 15.8.1922.This was popularly known as the second communal Government order.

1925 (1) The Government appointed a committee in G.O. No.733, PublicServices, dated 3.8.1925 to enquire into and report on the working ofthe system of communal representation under the Chairmanship ofDiwan Bahadur M. Krishnan Nayar with Rao Bahadur O. TanikachalaChettiar, Rao Bahadur A.S. Krishna Rao Pantulugaru, Thiru B.Munusamy Naidu, Thiru Rao Bahadur T.M. Narasimha Charlu, RaoBahadur N.C. Raja, Thiru Abdullah Ghatala Sahib Bahadur and ThiruArputhaswamy Udaiyar as its members. Although the committeefunctioned for about three years, it did not submit its report.


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1927 (1) There was pressure all round for proportionate distribution ofGovernment appointments. In G.O.Ms.No.1071, Public, dated4.11.1927, the following distribution was ordered and it continued to bein force till 1947.

Reservation (%) Population (%)1. Non Brahmins 5 out of 12 41.67 722. Brahmins 2 out of 12 16.67 33. Anglo-Indian and Christians

2 Out of 12 16.67 4

4. Muhammadans 2 out of 12 16.67 75. DepressedClasses

1 Out of 12 8.33 14

A cyclic order was also prescribed as follows:

Non – Brahmin (Hindu)MuhammadanNon – Brahmin (Hindu)Anglo – Indian or ChristianBrahminNon – Brahmin (Hindu)Others (Depressed Classes)Non – Brahmin (Hindu)MuhammadanNon – Brahmin (Hindu)Anglo – Indian or ChristianBrahmin

1934 (1) The Madras Provincial Backward Classes League, an Associationrepresenting the various Backward Hindu communities was founded in1934. It pressed for a separate quota for the Backward members.

1947 (1) The Government passed an order in G.O. No.3437, Public Services,dated 21.11.1947 giving separate representation to the BackwardHindus, and also increased the then existing representation of 1 out of12 allowed for Depressed classes. In the place of the earlier allocationof the unit of 12 appointments a revised allocation of a unit of 14appointments as shown below was ordered:-

Reservation (%) Population (%)1. Non-Brahmin Hindus 6 out of 14 42.86 222. Backward Hindus 2 out of 14 14.29 503. Brahmins 2 out of 14 14.29 34. Harijans 2 out of 14 14.29 145. Anglo Indians / Indian Christians

1 out of 14 7.14 4

6. Muslims 1 out of 14 7.14 7


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For the first time in the history of appointments to Public services thegroup of Backward Hindus came to be recognised and a separateallocation was made for them. The order of rotation was also changedas follows:

1. Non – Brahmin Hindus2. Harijans3. Backward Hindus4. Non– Brahmin Hindus5. Brahmins6. Non– Brahmin Hindus7. Muslims8. Non– Brahmin Hindus9. Anglo Indians / Indian Christians10. Non– Brahmin Hindus11. Harijans12. Non– Brahmin Hindus13. Brahmins14. Backward Hindus

1950 (1) The Constitution as originally passed contained Article 16(4). Soonafter the Constitution came into force the Government of Indiasuggested to the State Government that the existing system ofrecruitment for Public services on communal basis should be abrogatedat an early date as it was inconsistent with the letter and spirit of Article16 of the Constitution and that suitable provisions within the meaning ofArticle 16(4) and Article 335 of the Constitution should be made forprotecting the interests of the weaker sections of the Society. Therewere also objections from the public to the communal system followedin the matter of admission of students to the Professional Colleges.

1951 (1) The year 1951 marks the watershed in the history of Backward Classmovement. When the Constitution of India came into being there wasopposition to the application of the communal Government order. Thematter was taken up to Supreme court, in the case of educationalinstitutions in Champakam Dorairajan Vs State of Madras, similarly inVenkataramana Vs State of Madras, the same matter was agitated inrespect of application to appointments in Public services. In both thecases Supreme Court struck down the communal Government order asunconstitutional. Following this there were State-wide protests byvarious communities included in the Backward Classes list. In MadrasCity Thanthai Periyar organised mass processions and meetings andobserved “Communal Government Order day”. These protests forcedthe State Government to take up the matter with the Centre. Thisresulted in the first amendment to the constitution introducing Article15(4).


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The Supreme Court judgement in Venkatramana Vs State of Madrasmade the Government to revise the then existing rule relating torepresentation of communities in public services. Social andEducational backwardness alone became the criteria for reservation inpublic services. Under the revised system introduced in G.O. No.2432,Public (Services), dated 27.9.1951, in a cycle of 20 appointments 3were reserved for Scheduled Castes and Scheduled Tribes, 5 forBackward Classes and rest were filled in by open competition. Acertain sections of Mohammedans and Anglo Indians and Christianswere included among the Backward Classes. This amounts to areservation of,-

Scheduled Castes and Scheduled Tribes .. 15%Backward Classes .. 25%Open Competition .. 60%

The cycle of 20 vacancies for regulating the order of recruitment waslaid down as follows:

1. Open competition2. Scheduled Castes and Scheduled Tribes3. Open competition4. Backward Classes5. Open competition6. Open competition7. Backward Classes8. Open competition9. Scheduled Castes and Schedule Tribes10. Open competition11. Open competition12. Backward Classes13. Open competition14. Backward Classes15. Open competition16. Scheduled Castes and Schedule Tribes17. Open competition18. Open competition19. Backward Classes20. Open competition

If qualified and suitable candidates were not available among theScheduled Castes and Scheduled Tribes and Backward Classes intheir respective turns they simply lapsed. Candidates belonging toScheduled Castes and Scheduled Tribes and Backward Classes werealso eligible for selection against the open competition turns on thebasis of merit without prejudice to the turns reserved for them.


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1954 (1) At the time of State Re-organisations, Kanniyakumari District andShencottah Taluk of Tirunelveli District were added into Tamil Nadufrom Travancore Cochin State. The concessions enjoyed by thefollowing communities in Travancore Cochin State were preserved andcontinued to those communities in Kanniyakumari District andShencottah Taluk. Hence a separate list was maintained for thesetransferred territories and their special identity was maintained.

(1) Alwar(2) Arayar (Nulayar)(3) Aryavathi(4) Chavalakkaran(5) Chettu or Chetty(6) Ezhuthachan(7) Ezhavathy(8) Ezhava(9) Kalari krup (kalari Panicker)(10) Kudumbi(11) Naikkan(12) Odarn(13) Perumkollar(14) Sakkaravar (Kavathi)(15) Tholkollan(16) Veerasaiva(17) Veluthodathu Nair(18) Krishnanvaka(19) Latin Catholics(20) C.S.I. formerly S.I.U.C.

The following communities were treated as Backward Classes only forthe purpose of reservation of seats in educational institutions and forthe posts in public services:-

(1) Paravan Christian in Kanniyakumari District and Shencottah Taluk of Tirunelveli District.

(2) Latin Catholics(3) Krishnavaka(4) C.S.I.formerly S.I.U.C.

After the reorganisation of the State and taking into account thepopulation of Scheduled Castes and Scheduled Tribes the reservationof appointments was modified in G.O. Ms. No.2643, Public (Services),dated 30.12.1954 as follows:-



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This led to inclusion of five more turns as follows:

21. Open Competition22. Scheduled Castes and Scheduled Tribes23. Open Competition24. Backward Classes25. Open Competition

1957 (1) The present list of Most Backward Classes owes its origin to arepresentation made in 1954 by the Tamil Nadu WashermenFederation to the then Chief Minister, Thiru K. Kamaraj. The request ofthe Washermen Federation was that the facilities extended to them as aBackward Class were not adequate and that, they should be included inthe list of Scheduled Castes. As Washermen were not considered in theState as absolutely untouchable, the Government did not think it properto their request. The Chief Minister desired that though the caste maynot be included in the Schedule, their request for concessions on a parwith the Scheduled Castes should be examined and he also directedthat there may be several Backward Castes who may be in a similarposition and ordered the various departments concerned to report onthe subject. On the basis of the investigation so ordered in 1954, a listof castes which can be treated as “More Backward” among theBackward Classes was prepared. Support to this proposal came fromthe report of the Backward Classes Commission, published in 1956(Khalelkar’s Commission), which identified certain castes as moreBackward and suggested that preference may be given to them overother castes in the list of Backward Classes for the grant of educationalconcessions, etc. The Government accordingly issued directions inG.O. Ms. No.353, Industries, Labour and Co-operation, dated31.1.1957 recognising a list of Most Backward Classes for whomeducational concessions alone need be granted for the present asadmissible to Scheduled Castes from the academic year 1957-58. Thenumber of communities in the list of Most Backward Classes at thattime was 58.

1969 (1) The Government of Tamil Nadu constituted the First Backward ClassesCommission in the year 1969 under the Chairmanship ofThiru.A.N.Sattanathan to recommend for the betterment of BackwardClasses in Education, in Employment under Government and in severalfields of economic activities.

1971 (1) The major recommendation of the First Backward Classes Commissionwas enhancement of quantum of reservation for Backward Classesfrom 25% to 33%.


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(2)

(3)

The High Level Committee constituted by Government of Tamil Nadu toreview the quantum of reservation for Scheduled Castes andScheduled Tribes recommended that the reservation to ScheduledCastes and Scheduled Tribes should be raised from 16% to 24%.

The Government, after examining the recommendation of theCommission as well as the recommendation of the High LevelCommittee revised the percentage of reservation in the year 1971 asfollows:


Revised order of rotation of hundred turns was also prescribed, ofwhich eighteen turns were earmarked for Scheduled Castes andScheduled Tribes and thirty one turns for Backward Classes.

1972 (1) The existing list of Backward Classes in the State of Tamil Nadu owesits origin to the list of Backward Classes as approved by theGovernment in 1972, which was an outcome of the recommendationsof the First Backward Classes Commission. At the time of formation ofthe above Commission, there were three lists relating to BackwardClasses with a number of inconsistencies separately maintained bythree departments viz., the Backward Classes Department (for thepurpose of award of Scholarship etc.), the Education Department (forthe purpose of grant of fee concessions under 92 Madras EducationalRules) and the Tamil Nadu Public Service Commission (for theRecruitment to Public Services).

The Sattanathan Commission decided to do away with the practice ofmaintaining separate list by different authorities and made theBackward Classes Department, as the only single authority for themaintenance of the list of Backward Classes in future and maderecommendation in this regard. The list of Backward Classes finallydrawn by the Commission had undergone the following stages ofelimination:

1. Deletion of Communities which were figuring in the list of ScheduledCastes / Scheduled Tribes.

2. Deletion of Communities which were not found in the State of TamilNadu.

3. Elimination of redundancies and repetitions and giving alternativedescriptions of certain communities.

4. Amplifying the description of certain communities; and5. Clubbing together certain allied communities.


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Based on the recommendation of the above Commission, theGovernment included certain communities in the list of BackwardClasses from time to time. A consolidated list incorporating thesecommunities was issued in G.O. Ms. No.437, Social WelfareDepartment, dated 15.5.1972. Annexure III of the said G.O. contained39 communities in the list of Most Backward Classes. (Annexure I listedthe Backward Classes throughout the State; Annexure II listedBackward Classes in Kanyakumar district and Shencottah taluk ofTirunelveli district). The revised list was given effect from the academicyear 1971 -1972 for the purpose of Educational and other concessionsand reservation of seats in educational institutions. For the purpose ofreservation in recruitment to Public Services, the list was given effectfrom the date of the order.

The separate list of Backward Classes maintained from 1954 for thecommunities in Kanyakumari district and Shencottah taluk of Tirunelvelidistrict was merged with the Backward Classes throughout State withspecific mention about the area/territorial restriction.

1972

to

1979

(1) After this, the Government declared more and more communities asBackward, either on the basis of the observations of the SattanathanCommission or on the strength of the reports submitted by the DistrictCollectors or studies made by other Government Agencies between theperiod from 1972 to 1979. The details of Communities so added to thelist of Backward Classes are given below:

(1) Savalakaran(2) Pannirandam Chettiar or Uttama Chettiar(3) Vallambar(4) Yavana(5) Salivagana(6) Nanjil Mudali(7) Urudu speaking Labbais(8) Dekkani Muslims(9) Kongu Vellalar(10) Karuneegar(11) Sozhia Vellalar(12) Kathikarar(13) Ahavar and Alavan(14) Christian converts from Mukkuvar, Mukayar, Paravar

and Meenavar communities(15) Dasapalanjika of Coimbatore and Nilgiri Districts

(entry relating to Kannada Saineegar)


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(2)

(3)

Subsequently the Government included the following communities inthe list of Backward Classes.

(1) Gavara (entry relating to Gavarai and Vadugar)(2) Mutharaiyar (entry relating to Muthuraja)(3) Nangudi Vellalar

The Sattanathan Commission, among other things, observed that themore affluent and advanced sections of Backward Classes themselvesmonopolized all concessions. It suggested superimposition of an annualincome limit of Rs.9,000/- for eligibility to get the concession. TheGovernment superimposed the income limit of Rs.9,000/- per annum tobecome eligible for the Backward Classes concessions includingreservation in G.O. Ms. No.1156, Social Welfare, dated 2.7.1979.

1980 (1)

(2)

(3)

Though the High Court of Madras dismissed the Writ Petitionchallenging the Government order prescribing annual income limit foravailing the Backward Classes concessions, the Government reviewedits policy in consultation with all parties and removed this income limit inG.O. Ms. No.72, Social Welfare, dated 1.2.1980.

While removing the income ceiling, an upward reservation for BackwardClasses from 31% to 50% was ordered in G.O. Ms. No.73, SocialWelfare, dated 1.2.1980 taking into account the addition of certaincommunities in the list of Backward Classes and the total population ofBackward Classes. The total reservation comes to 68% as follows:


The Government ordered the inclusion of Rawther and Marakkayar inthe entry ‘Labbais’ in the list of Backward Classes.

1983 (1) The Government orders issued in G.O. Ms. No.72 and 73, SocialWelfare Department, dated 1.2.1980 were the subject matter ofW.P.Nos. 4995-97/1980 and 402/1981 in the Supreme Court of India. Inconformity with the orders of the Supreme Court dated 14.10.1982 inthose writ petitions, the Second Backward Classes Commission wasconstituted in G.O. Ms. No.3078, Social Welfare, dated 13.12.1982under the Chairmanship of Thiru J.A. Ambasankar, I.A.S.(Retired) forreviewing the existing list of Backward Classes and for recommendingmeasures for their upliftment.


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The criterion followed by the Commission for determining the social andeducational backwardness were:

A. SOCIAL BACKWARDNESS

(i) Caste / Class accepted as socially backward.

(ii) Occupational backwardness – Caste / Class which mainly depends on manuallabour or unclean or degrading occupation for its livelihood.

OrCaste / Class whose percentage of women engaged in manual labour is morethan that of the State by atleast 10% of it.

OrCaste / Class whose percentage of children employed is more than that of theState by atleast 10% of it.

(iii) Poverty – Caste / Class whose percentage of households living in Kutcha housesis more than that of the State by atleast 10% of it.

OrCaste / Class whose percentage of households taking subsistence loans is morethan that of the State by atleast 10% of it.

OrCaste / Class whose percentage of households getting loans from money –lenders / pawnbrokers is more than that of the State by atleast 10% of it.

B. EDUCATIONAL BACKWARDNESS

(i) Caste / Class whose percentage of population who have passed only the 10th

Standard or its equivalent is less than that of the State by atleast 10% of it.

(ii) Caste / Class whose percentage of population who have passed the HigherSecondary or its equivalent and above is less than that of the State by atleast10% of it.

(iii) Extent of Educational backwardness:

Caste / Class whose percentage of illiteracy is more than that of the State byatleast 10% of it.

OrCaste / Class whose percentage of dropout is more than that of the State byatleast 10% of it.

Nine points at the rate of three for each indicator were awarded for socialbackwardness while only six points at the rate of two for each indicator are awardedfor educational backwardness. A Caste / Class in the list of Backward Classes wasconsidered as socially and educationally Backward and eligible for retention in the listonly if it scored seven out of fifteen points of which atleast two points undereducational backwardness. Similarly, the communities in the list of ForwardCommunities were recommended for inclusion in the list of Backward Classes if theysecured a minimum of six points of which atleast two points under educationalbackwardness.


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1983 (1) The Government declared the Christian Nadar, Christian Shanar andChristian Gramini as Backward Classes.

1985 (1) The Ambasankar Commission submitted its report to Government on28.2.1985. The Commission recommended for deletion of 24communities from the list of Backward Classes existed at that time andinclusion of 29 communities as socially and educationally BackwardClasses. The Government after considering the recommendation of theabove Commission, in the light of the guidelines given by the SupremeCourt in Vasantha Kumar and Others Versus State of Karnataka(1985 I SCALE 832) and decided to accept the recommendation of theCommission in regard to the inclusion of new communities in the list ofBackward Classes. Accordingly the Government included the followingcommunities in the list of Backward Classes in the orders issued inG.O. Ms. No.1564, Social Welfare Department, dated 30.7.1985:

(1) Lingayat (Jangama)(2) Kasukkara Chettiat(3) Pulavar (Coimbatore District)(4) Mooppan(5) Velar (kulalar)(6) Urikkara Nayakkar(7) Syed(8) Sheik(9) Ansar(10) Kaniyala Vellalar(11) Moondru Mandai Enbathu Nalu (84) Ur-Sozhia Vellalar(12) Muga Vellalar(13) Sundaram Chetty(14) Kongu Vaishnava(15) Agaram Vellan Chettiar(16) Ayira Vaisyar(17) Karpoora Chettiar(18) Oottru Valanattu Vellalar(19) Paiyur Kotta Vellalar(20) Kudikara Vellalar(21) Chowdry(22) Thoraiyar(23) Kannadiya Naidu(24) Pooluva Gounder(25) Gounder(26) O.P.S. Vellalar(27) Kallarkula Thondaman(28) Ukkirakula Kshatriya Naicker(29) Podikkara Vellalar

As regards the deletion of 24 communities from the list of BackwardClasses, the Government took into account the Class poverty of eachcommunity, their way of life, their standard of living, their habitsand customs and their place in the social hierarchy in the State and


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(2)

(3)

observed no justification for deletion of these 24 communities and thatthey should continue be treated as Backward Classes, giving dueweightage to all these factors.

The total population of Backward Classes as determined by the TamilNadu Second Backward Classes Commission was approximately 67%of the total population of the State. The Majority Report of theCommission recommended that in view of the above percentage, theexisting reservation of 50% for Backward Classes may be continuedand needs no modification. The Government accepted the aboverecommendation and issued orders for the continuance of 68%reservation in the State in G.O. Ms. No.1565, Social Welfare, dated30.7.1985.

The Government also approved the list of Most Backward Classes inG.O. Ms. No.1566, Social Welfare Department, dated 30.7.1985 and listof Denotified Communities in G.O. Ms. No.1567, Social WelfareDepartment, dated 30.7.1985.

1986 (1) The Christian converts from the Hindu Backward Class Communitiesrepresented to the Government to extend all the concessions granted tothe Hindu Community treating them as Backward, not withstanding theirconversion as Christians, on the ground that these Christiancommunities also suffer from all social disabilities as HinduCommunities in spite of their conversion and that it is not the religionbut the social and educational backwardness that should be the basisfor inclusion of any communities in the list of Backward Classes. Themajority members of the Tamil Nadu Second Backward ClassesCommission recommended that when once the various HinduBackward Class Communities are listed, their respective converts toother religions also be included in the list of Backward Classes as in thecase of Christian Nadar, Christian Shanars, Christian Gramini, ChristianParavar etc. The Government, after carefully examining therepresentations with reference to the social status and educationalbackwardness, issued orders in G.O. Ms. No.558, Social WelfareDepartment, dated 24.2.1986 declaring the Christian converts from anyHindu community included in the list of Backward Classes as BackwardClasses. The above orders were given effect from the academic year1986 -1987 for the purpose of Educational and other concessions andreservation of seats in educational institutions and from the date ofissue of this order in regard to reservation in recruitment to PublicServices.


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1989 (1)

(2)

(3)

(4)

The issues relating to reservations have been the subject of enquiry bythe Backward Classes Commissions appointed in this State. The FirstBackward Classes Commission (Sattanathan Commission) as well asthe Second Backward Classes Commission (Ambasankar Commission)clearly brought out in its report that several communities among thoseincluded in the list of Backward Classes did not receive their due sharein educational and employment opportunities while a small number ofcommunities in the list of Backward Classes benefited to a relativelylarge extent. The Most Backward Classes and the DenotifiedCommunities who constitute a large proportion in the population ofBackward Classes made representations for special reservation to MostBackward Classes and Denotified Communities amongst BackwardClasses. Government issued orders in G.O. Ms. No.242, BackwardClasses Welfare, Nutritious Meal Programme and Social Welfare, dated28.3.1989 providing 20% reservation for Most Backward Classes andDenotified Communities from out of the 50% reservation then availablefor all Backward Classes leaving the remaining 30% for BackwardClasses. The reservation was distributed among the various categoriesas given below:

Scheduled Castes and Scheduled Tribes .. 18%Most Backward Classes and Denotified Communities .. 20%Backward Classes .. 30%Open Competition .. 32%

The Christian converts from Parvatha Rajakulam, Meenavar,Pattanavar and Sembadavar were included in the list of Most BackwardClasses (G.O. Ms. No.242, Backward Classes Welfare, Nutritious MealProgramme and Social Welfare, dated 28.3.1989).

Representations have been received from Paravar Christians that theyalso belong to Fishermen Community and hence they may be treatedas Most Backward Classes as in the case of Christian converts fromParvatha Rajakulam, Meenavar, Pattanavar and Sembadavar. TheGovernment accepted the above demand and declared the ParavarChristians (except in Kanniyakumari District and Shencottah Taluk ofTiurnelveli District) as Most Backward Classes in Government LetterNo.42124/BCC/89-6, dated14.9.1989.

The Government, after examining the request received from Mukkuvaror Mukayar community (Fishermen Community) issued orders in G.O.Ms. No.929, Backward Classes Welfare, Nutritious Meal Programmeand Social Welfare, dated 7.11.1989 for the inclusion of the abovecommunity and their converts to Christianity in the list of MostBackward Classes.


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1990 (1) Based on the directions of High Court in W.A.No.1692 of 1987 theGovernment issued orders in G.O. Ms. No.1090, Adi dravidar andTribal Welfare Department, dated 22.6.90 providing 1% separatereservation for Scheduled Tribes taken from 32% reservation thenavailable for open Competition. Thus the 69% reservation is in voguein the State since 1990.

1991 (1) The Government issued orders in G.O. Ms. No.20, Backward Classesand Most Backward Classes Welfare Department, dated 25.1.1991 andincluded the community “Pannaiyar” in the list of Most BackwardClasses.

1992 (1)

(2)

The Constitution Bench of the Supreme Court delivered its judgment onthe 16.11.1992 in Indra Sawhney Vs Union of India (AIR 1993 SC477), popularly known as Mandal Commission cases, holding that thetotal reservation under Article 16(4) should not exceed 50 percent.

The Review Petition and the Clarificatory Application filed by thisGovernment on the above judgment were rejected by the SupremeCourt.

1993 (1)

(2)

The Supreme Court of India, in its judgement in Mandal Commissioncases, directed, among other things, that the Government of India andthe State Governments have the power to and ought to create apermanent mechanism – in the nature of a Commission for examiningrequests of inclusion and complaints of over-inclusion or non-inclusionin the list of Other Backward Classes and to advice the Government,which advice shall ordinarily be binding upon the Government. TheSupreme Court also held that the body so created can also beconsulted in the matter of periodic revision of list of Other BackwardClasses.

In pursuance of the above direction of the Supreme Court, theGovernment constituted a permanent Commission termed as “TamilNadu Backward Classes Commission” under Article 16(4) read withArticle 340 of the Constitution of India, headed by retired Judge of HighCourt as Chairman with eight Members, in G.O. Ms. No.9, BackwardClasses and Most Backward Classes Welfare Department, dated15.3.1993.

The terms of reference of the above Commission was as follows:

(i) The Commission shall entertain, examine and recommend upon requests forinclusion and complaints of over inclusion and under inclusion in the lists ofBackward Classes / Most Backward Classes.


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(3)

(ii) Periodic revision of lists of Backward Classes / Most Backward Classes in theState as and when decided.

(iii) The Commission shall base its recommendations in the light of the provisioncontained in Art.16(4) read with relevant provisions of the Constitution of Indiaand the various decisions of Supreme Court bearing on the subject.

When the issue of admission to educational institutions for theacademic year 1993-94 came up before the High Court of Madras, theHigh Court permitted the Government to continue its reservation policyas hitherto followed i.e. 69% during the academic year 1993-94. At thesame time the Court also directed that the quantum of reservationshould be brought down to 50% during the next academic year 1994-95. The Voice (Consumer Care) Council filed a Special Leave Petition(SLP .No.13526/1993) before the Supreme Court against the Judgmentof the High Court of Madras permitting the State Government tocontinue the 69% reservation policy during the academic year 1993-94.The Government of Tamil Nadu have also filed Special Leave Petitions(SLP.Nos.16534-40/1993) against the judgment of the High Court,Madras directing the Government to bring down the reservation to 50%before the academic year 1994-95, in order that the present reservationpolicy of the State Government should be reaffirmed so as to ensurethe continued advancement of the Backward Classes. The SupremeCourt of India passed an interim order reiterating that the reservationshould not exceed 50% in the matter of admission to educationalinstitution.

1994 (1) The entire State of Tamil Nadu was deeply disturbed by the farreaching implications of the Supreme Court judgment restricting thequantum of Reservation to 50%. To tide over the crisis, the Tamil NaduLegislative Assembly, in its session on 31.12.1993, passedunanimously the Tamil Nadu Backward Classes, Scheduled Castes andScheduled Tribes (Reservation of seats in Educational Institutions andof appointments or posts in the services under the State) Bill, 1993seeking to retain 69% reservation, taking recourse to Article 31-C of theConstitution of India. The President of India gave his assent to theabove Bill on 19.7.1994 and the Bill became an Act (Tamil Nadu Act 45of 1994). The Tamil Nadu Act 45 of 1994 has been included in theNinth Schedule to the Constitution on 31.8.1994 by the Constitution(Seventy Sixth Amendment) Act, 1994 enacted by the Parliament to getprotection under Article 31-B of the Constitution.


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(2)

(3)

(4)

Consequent to the assent given by His Excellency the President ofIndia to the Tamil Nadu Act 45 of 1994, the Government notified thelists of classes of citizens of socially and educationally backwardincluding the Most Backward Classes and the Denotified Communitiesunder clause (a) of Section 3 of the said Act in G.O.Ms.No.28,Backward Classes and Most Backward Classes Welfare Departmentdated 19.7.1994. (Notification No.II(1)/BCMBC/62(a)/94 dated19.7.1994.)

One Thiru .S.P. Sampath Kumar filed a Writ Petition in the SupremeCourt of India (W.P. No.454 of 1994) challenging the validity of theTamil Nadu Act 45 of 1994. The petitioner also filed a prayer for stayon the implementation of the Tamil Nadu Act. Some other WritPetitions were also filed before the Supreme Court on the same ground.The Writ Petitions challenging the validity of the Tamil Nadu Act andpraying stay of the operation of the Act, the Contempt Petitions and theSpecial Leave Petitions were taken up by the Supreme Court forconsideration on 1.8.1994. The Supreme Court admitted the WritPetitions and referred them to the Constitution Bench. However, theSupreme Court did not stay for the operation of the Act.

Subsequently, the Supreme Court in its interim orders dated 18.8.1994directed the Government of Tamil Nadu to create additional seats inprofessional Colleges to accommodate the students who would havebeen selected if 50% rule of reservation was followed instead of 69%.

1995 (1) In connection with the case challenging the quantum of reservationmade under the Tamil Nadu Act 45 of 1994, the Supreme Court passedthe interim orders for the creation of additional seats in the ProfessionalColleges for the academic year 1995-96. The order of Supreme Courtwas communicated to the concerned departments for compliance.




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(2) Consequent on the bifurcation / trifurcation and renaming of certainDistricts, Government published notification under clause (a) of section3 of Tamil Nadu Act 45 of 1994 amending the BC & MBC WelfareDepartment Notification No.II(1)/BCMBC/62(a)/94 Part II – Section 1,Tamil Nadu Government Gazette Extraordinary dated 19.7.1994 inrelation to name of certain Districts in G.O.Ms.No.100, BC & MBCWelfare (BCC) Department dated 24.11.1997.


1999 (1) In connection with the case challenging the quantum of reservationmade under the Tamil Nadu Act 45 of 1994, the Supreme Court passedthe interim orders for the creation of additional seats in the ProfessionalColleges for the academic year 1999-2000. The order of SupremeCourt was communicated to the concerned departments forcompliance.

2000 (1) In connection with the case challenging the quantum of reservationmade under the Tamil Nadu Act 45 of 1994, the Supreme Court passedthe interim orders for the creation of additional seats in the ProfessionalColleges for the academic year 2000 – 2001. The order of SupremeCourt was communicated to the concerned departments forcompliance.




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2005 (1)

(2)

In connection with the case challenging the quantum of reservationmade under the Tamil Nadu Act 45 of 1994, the Supreme Court passedthe interim orders for the creation of additional seats in the ProfessionalColleges for the academic year 2005 – 2006. The order of SupremeCourt was communicated to the concerned departments forcompliance.

Consequent on the bifurcation of Dharmapuri District and KrishnagiriDistrict in G.O.Ms.No.570, Revenue Department, dated 20.11.2003,Government published notification amending the BC and MBC Welfarenotification No.II(1)/BCMBC/62(a)/94 Part II Section1, Tamil NaduGovernment Gazatte Extraordinary dated 19.7.1994 in relation toDharmapuri District in G.O.Ms.No.78, BC,MBC & MW Department,dated 4.6.2005.

2006 (1)

(2)


The Tamil Nadu Backward Classes, Scheduled Castes and ScheduledTribes (Reservation of Seats in Private Educational Institutions) Act,2006 to provide for reservation of seats in private educationalinstitutions in the State for the Backward Classes of citizens and forpersons belonging to the Scheduled Castes and the Scheduled Tribesin the State of Tamil Nadu [Tamil Nadu Act 12 of 2006] was enacted.


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(3) While reconstituting the Tamil Nadu Backward Classes Commissionvide G.O.Ms.No.30, BC,MBC & MW department, dated 11.7.2006, thefollowing terms of reference was issued:

(i) The Commission shall entertain, examine and recommend upon requests forinclusion and complaints of over-inclusion and under-inclusion in the lists ofBackward Classes/Most Backward Classes.

(ii) Periodic revision of list of Backward Classes and Most Backward Classes inthis State as and when decided.

(iii) The Commission shall base its recommendations in the light of provisioncontained in Article 16(4) read with relevant provisions of the Constitution ofIndia and the various decisions of the Supreme Court bearing on the subject.

(iv) The Commission shall make recommendations on improved reservation forChristians, Muslims and other Minorities based on their social and educationalbackwardness.

(v) The Commission shall examine and make recommendations on any othermatter relating to Backward Classes that may be referred to it by Governmentfrom time to time.


2008 (1)

(2)

(3)


The Tamil Nadu Backward Class Christians and Backward ClassMuslims (Reservation of seats in Educational Institutions, includingPrivate Educational Institutions and of Appointments or Posts in theServices under the State) Act, 2007 [Tamil Nadu Act 33 of 2007]providing 3.5% reservation each to Backward Class Christians andBackward Class Muslims from out of 30% reservation for BackwardClasses was legislated.

Consequent to the 3.5% reservation each ordered for Backward ClassMuslims and Backward Class Christians, in supersession of the


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(4)

(5)

(6)

Notification No.11 (1)/BCMBC/62(a)/94 dated 19.7.1994 of the BC andMBC Welfare Department, the Government notified the list of BackwardClasses, Backward Class Christians, Backward Class Muslims, MostBackward Classes and Denotified Communities in G.O.Ms.No.85, BC,MBC and MW Department dated 29.7.2008 [Notification No.II(1)/BCMBCMW/36(a)/2008 dated 5.9.2008]

Consequently to above enactment, the 100 points roster maintained forappointments was modified as 200 points roster. (G.O.Ms.No.241,P&AR dept., dated 29.10.2007, G.O.Ms.No.101, P&AR, dated30.5.2008, Govt. Lr No.40321/S/2008, P&AR, dated 29.7.2008)

The list notified on 5.9.2008 was amended for deletion of ‘KurumbaGounder’ community entered as a sub-sect of Kongu Vellalarcommunity in the Backward Classes, and inclusion of the community asa sub-sect of ‘Kurumba’ community in the Most Backward Classes.(G.O.Ms.No.96, BC,MBC&MW department, dated 8.9.2008 and TNGG(Extraordinary) No.II(1)/BCMBCMW/ 41(a)/2008 dated 18.9.2008).

The list notified on 5.9.2008 was further amended in TNGG NotificationNo.II(1)/BCMBCMW/41(b)/2008 dated 19.9.2008. The followingcommunities were included in the Backward Classes:

(1) Vallanattu Chettiar.(2) Cherakula Vellalar.(3) Pandia Vellalar.

The following Backward Classes were notified as Most BackwardClasses:

(1) Arayar (in Kanniyakumari District)(2) Thoraiyar (Nilgiris)(3) Thoraiyar (Plains)(4) Panisaivan / Panisivan(5) Kanniyakumari District Latin Catholic Christians Vannar(6) Erragollar (as a subsect of Thottia Naicker)

(G.O.Ms.No.97, BC,MBC & MW Department dated11.9.2008)

2009 (1) Accepting the request made by the representatives of Christiancommunities, the 3.5% reservation provided to the Backward ClassChristians was withdrawn and they are allowed to avail the benefit fromthe 26.5% reservation available for Backward Classes other thanMuslims. (Tamil Nadu Act No. 51 of 2008). Consequently, necessarychanges in the 200 points roster for appointments were modified inG.O.Ms.206, P&AR, dated 6.11.2008.


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(2)

(3)

(4)

(5)

(6)

In connection with the cases challenging the quantum of reservationmade under the Tamil Nadu Act 45 of 1994, The Supreme Courtpassed the interim orders for the creation of additional seats in theProfessional Colleges for the academic year 2009–2010. The Orders ofSupreme Court was communicated to the concerned departments forimplementation.

The Tamil Nadu Arunthathiyars (Special Reservation of seats inEducational Institutions including Private Educational Institutions and ofappointments or posts in the Services under the State within theReservation for the Scheduled Castes) Act, 2009 [Tamil Nadu Act 4 of2009] was enacted to provide for reservation to seven castes inScheduled Castes list, namely Arunthathiyar, Chakkilian, Madhari,Madiga, Thoti, Pagadai and Adi-Andhra, on preferential basis to anextent of sixteen percent from out of the reservation available for theScheduled Castes in admission to educational institutions includingprivate educational institutions and for appointments to the PublicServices. The act came into force on 24.4.2009. Accordingly, the 200points roster for appointments was modified (G.O.Ms.No.65, P&AR,dated 27.5.2009).

The list of Backward Classes was amended further as a consequenceof withdrawal of separate quota of 3.5% provided to the BackwardClass Christians was withdrawn (G.O.Ms.No.37, BC,MBC & MWDepartment, dated 21.5.2009).

The list of Most Backward Classes was again amended to includethereunder the Paravar Converts to Christianity of Kanniyakumaridistrict and Shencottah Taluk of Tirunelveli district. (G.O.Ms.No.98,BC,MBC & MW Department dated 5.11.2009)

The Government ordered that the status of persons as BackwardClasses, Most Backward Classes and Denotified Communities witharea / territorial restrictions should be the same even if such personsmigrate out of the notified area / territory, for education, employment orotherwise. (G.O.Ms.No.95, BC,MBC &MW dept, dated 28.10.2009)

2010 (1) In connection with the cases challenging the quantum of reservationmade under the Tamil Nadu Act 45 of 1994, The Supreme Courtpassed the interim orders for the creation of additional seats in theProfessional Colleges for the academic year 2009–2010. The Orders ofSupreme Court was communicated to the concerned departments forimplementation.


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(2) The Writ Petitions challenging the validity of quantum of reservationprovided for in the Tamil Nadu Act 45 of 1994 were disposed of by theSupreme Court, vide order dated 13.7.2010, with the followingdirections:-

“Subsequent to the filing of the above Writ Petitions, Acticles 15 and 16 ofthe Constitution have been amended vide Constitution (Ninety-thirdAmendment) Act, 2005, and Constitution (Eighty-first Amendment) Act,2000, respectively, which Amendment Acts have been the subject-matterof subsequent decisions of this Court in the cases of M.Nagaraj & Ors. Vs.Union of India & Ors [2006 (8) S.C.C. 212] and Ashoka Kumar Thakur Vs.Union of India & Ors. [2008 (6) S.C.C. 1], in which, inter ailia, it has beenlaid down that if a State wants to exceed fifty percent reservation, then it isrequired to base its decision on the quantifiable data. In the present case,this exercise has not been done. Therefore, keeping in mind the saidparameter, we direct the State to place the quantifiable data before theTamil Nadu State Backward Classes Commission and, on the basis ofsuch quantifiable data amongst other things, the Commission will decidethe quantum of reservation. We are informed by learned Solicitor Generalthat such data in the form of Reports, which are subsequently prepared, isalready available. Consequently, these writ petitions stands disposed ofwith a direction to the State Government to re-visit and take appropriatedecision in the light of what is stated above. It needs to be mentioned thatthe interim orders passed by this Court from time to time in relation toadmissions to Educational Institutions shall continue to be in force and inoperation for a period of one year from today. In the circumstances, weare not expressing any opinion on the validity of 1994 Act at this stage.”

2011 (1)

(2)

The Supreme Court in its order dated 3.1.2011, has also directed thisCommission also to examine the grievances regarding exclusion of thecreamy layer from the benefit of reservation in the matter of admissionto Educational Institutions and in the matter of employment undervarious services in the State of Tamil Nadu.

The entry Sl. No.24 of ‘Narikoravar’ in the list of Most BackwardClasses was amended as ‘Narikoravar (Kuruvikars)’. (G.O.Ms.No.6,BC,MBC & MW Department dated 11.1.2011)


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3. EVOLUTION OF THE CONSTITUTION ANDDECLARATION OF INDEPENDENCE

3.1 The first Government of India Act came into force in 1858 after the BritishCrown took over the Government of India from East India Company.

3.2 As per this Act, India was to be ruled by the Secretary of State for India,with the status of a Minister in the British Cabinet. He was to be assistedby a Council of fifteen British members.

3.3 The Secretary of State was answerable only to the British Parliament.He sat in London and controlled India through Governor-General inDelhi. The Governor-General was assisted by an Executive Council.

3.4 India was divided into several Provinces ruled by Governors. TheGovernment of India, headed by Governor-General, was not federal innature. It functioned only as a unitary form of Government.

3.5 The Government of India Act, 1909 came into being after the IndianCouncil Act of 1861 and 1862. The Government of India Act 1909 wasborn out of what were widely known as Minto-Morley Reforms.

3.6 Then came the Government of India Act 1919. This Act created twodistinct spheres of administration – “Central” and “Provincial”.

3.7 The people of India were not at all satisfied with these Acts. The reasonis this: The British were still the “Masters” ruling India from London andNew Delhi.

3.8 There were constant agitations. This led to the appointment of SIMONCOMMISSION in 1927. This Commission was headed by Sir JohnSimon. All the members were Englishmen; not a single Indian found aplace in it. Consequently, there was revolt in the whole of India. TheIndians shouted with one voice, “SIMON, GO BACK”

3.9 Despite this, Simon Commission interviewed a number of Indians andsubmitted a report to the British Government in 1930.

3.10 This report was considered by a “Round Table Conference” in London.The participants were delegates of British Government and of BritishIndia and the rulers of Indian States.

3.11 A ‘White Paper’ was finally prepared. Joint Select Committee of BritishParliament examined this. Consequent on the recommendations of the


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Committee, a Bill was prepared and passed by the British Parliament.This was how the Government of India Act 1935 was born.

3.12 Of course, more powers were given to the States by the Government ofIndia Act 1935 than was given by the Government of India Act 1919.However, the residuary and discretionary powers still vested with theBritish Governors and the British Viceroy. These, among other reasons,the Indians were not at all satisfied with this Act. This apart, LokamanyaBal Gangadhar Tilak gave a call for the goal of complete freedom(Sampoorna Swaraj). One of the salient features of the Government ofIndia Act, 1935 was the formation of Provincial Legislative Assembliesbased on adult franchise. Though the Congress Party stronglyrepudiated the 1935 Act, based on this very Act, it permitted all theProvincial Congress units to go ahead and participate in the ProvincialAssembly elections. Out of the eleven provinces, which went to thepolls, seven voted for the Congress Party and the rest for the MuslimLeague.

3.13 A National Convention of the Congress legislators from the provincesmet at New Delhi on 19th and 20th March 1937. While addressing theMLAs (the very products of the 1935 Act!), Jawaharlal Nehru eloquentlysaid, “The Government of India Act, 1935, must go lock, stock and barreland leave the field open for our Constituent Assembly.”

3.14 On 7th September 1937, in support of the demand for framing aConstitution for India by a Constituent Assembly the following resolutionwas moved in the Central Legislative Assembly by S.Satyamurthy:

“………..that this Assembly recommends to the Governor-General-in-Councilto convey to the Secretary of State for India and to the British Governmentthe opinion of the House that the Government of India Act, 1935, in no wayrepresents the will of the Nation and is wholly unsatisfactory and should bereplaced by a Constitution framed by a Constituent Assembly elected on thebasis of adult franchise.”

3.15 The need for constituting a Constituent Assembly was again emphasizedon 15th November 1939 by Rajagopalachari, the Premier of MadrasProvince, through an official press statement issued from Fort St.George.

3.16 In the Harijan, dated 19th November 1939, a significant article byMahatma Gandhi appeared voicing, for the first time, his emphatic viewon the urgent need for framing a Constitution for India.

3.17 In 1945, World War II ended. The Conservative Party headed byWinston Churchill – an enemy of India – got defeated in the GeneralElections, ensued then. The Labour party, headed by Mr.Clement Attlee


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won the elections and came to power. He became the Prime Minister ofEngland. He made an appeal to the Indian people this way:-

“”to join together in a united effort and work out a Constitution which themajority and minority communities accept as just and fair, and in which boththe Princely States and Provinces could take their place……..”

3.18 On September 19, 1945, Election to the Provincial Assemblies wasannounced. By January 19, 1946, Elections for all the 11 provincialassemblies in India were conducted. This was nearly 20 months beforeIndia became free.

3.19 In the meantime, a British Parliamentary delegation came to India. Thedelegation toured India between January 1, 1946 and February 8, 1946.The delegation got convinced that there was urgent need to transferpower to India and advised British Government accordingly.

3.20 The Prime Minister, Clement Attlee, announced on February 19, 1946 inthe House of Commons that a “Cabinet Mission” consisting of threemembers of the British Cabinet would come to India.

3.21 The Cabinet Mission arrived in India on March 24, 1946. The Missionhad a round of talks with Indian leaders. Finally, on May 16, 1946, theMission announced its plan going by the name “Cabinet Mission Plan”.The Mission announcement formed the genesis of the ConstituentAssembly of India, created in December, 1946.

3.22 The Cabinet Mission Plan culminated in the decisions to be taken asbelow:

(1) A Constituent Assembly to be created without any delay ;(2) The demand for Pakistan by the Muslim League was not to be conceded;(3) An interim Government was to be formed immediately to govern India.

3.23 The Cabinet Mission did not favour the suggestion of constituting aConstituent Assembly by members regularly elected through adultfranchise as such constitution is likely to result in undue delay.

3.24 Consequently, the Mission suggested allotment of one seat for apopulation of one Million. The suggestion was accepted by the Indians.

3.25 Each Province was directed to send members to the ConstituentAssembly accordingly. The task of electing those members wasassigned to the Provincial Legislative assemblies.

3.26 The British India was allotted 292 members. All the Princely States puttogether were allotted a maximum of 93 members.


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3.27 The British India was divided into three sections – A, B & C. “A” sectionwas to send 187 members; “B” 35 members; and “C” 70 members,totaling in all 292 members.

3.28 Division of various sections comprising the States and allotment ofmembers to each State are reflected as below:-

Section “A” General Muslims1 Madras 45 42 Bombay 19 23 United Provinces 47 84 Bihar 31 55 Central Provinces 16 1

Section “B” General Muslims Sikhs1 Punjab 8 16 42 N.W.F.P. Nil 3 Nil

Section “C” General Muslims Sikhs1 Bengal 27 33 Nil2 Assam 7 3 Nil

3.29 The modality of sending members from the Princely States was to bedecided later.

3.30 The Muslim League began raising objections to the Cabinet Mission Planbecause the Plan did not concede the formation of Pakistan in its “WhitePaper” on May 16, 1946. Consequently, the Muslim League wasadopting resentful silence in sending its members to the ConstituentAssembly.

3.31 Quite unexpectedly, on December 6, 1946, the British Governmentissued a statement in support of the stand taken by the Muslim League.

His Majesty’s Government said,-“Should a Constitution come to be formed by the Constituent Assembly inwhich a large section of Indian population has not been represented, HisMajesty’s Government will not contemplate forcing such a Constitution uponany unwilling part of the country.”

3.32 For the first time, the British Government, through the statement, hintedat the possibility of two nations and two Constituent Assemblies.Consequently, the Constituent Assembly meeting on December 9, 1946,took place without the participation of the Muslim League members.

3.33 His Majesty’s Government made a sudden announcement on February20, 1947, from London. The statement said,


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“His Majesty’s Government will have to consider to whom the powers of theCentral Government in British India should be handed over, on the due date,whether as a whole to some form of Government for British India, or in someareas to the existing provincial Government, or in such other way as seemsmost reasonable and in the best interest of the Indian people.”

3.34 As a result of the statement of the British Government, the MuslimLeague’s stand got hardened. It publicly announced that it would not jointhe Constituent Assembly. The League pressed for another ConstituentAssembly for “Muslim India”.

3.35 The concept of partition of India was accepted not only by the CongressWorking Committee but also by the larger body All India CongressCommittee.

3.36 On June 3, 1947, Viceroy Mountbatten announced with the concurrenceof Indian leaders and approval of His Majesty’s Government, what wasknown as the Mountbatten Plan. As per this Plan, India was to bepartitioned. Pakistan thus became a reality.

3.37 The two provinces of Bengal and Punjab were also partitioned. Therewas a fall in the number of members from those two provinces to theConstituent Assembly. Fresh elections took place from West Bengal andEast Punjab. As a result, when the Constituent Assembly met in freeIndia on October 31, 1947, the membership had come down to 299including the members of the princely States. Two years later, when theactual ratification of the Constitution took place on December 29, 1949,only 284 members signed.

3.38 Thus it is crystal clear that the Constituent Assembly which drafted theConstitution of India did not consist of members elected on adultfranchise. It did consist of members nominated by the provincialCouncils and representatives nominated by the princely States, whichcannot at all be stated – on the situation then prevailing – to be reallyreflecting the will or representing the cause of the masses of thedowntrodden sections of the Indian society. The election took place onlyin 1951. The Constitution was not at all placed before the Parliament forits approval; nor was there any referendum. The Constitution as framedcannot at all be stated to be really reflecting the will of the people of thecountry. Nonetheless, the Preamble of the Constitution proclaims as,“We the People of India, having solemnly resolved to constitute India intoa sovereign, socialist, secular, democratic republic ”

3.39 India attained independence on August 15, 1947. The Constitution cameinto force on January 26, 1950.


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4. MARCH OF LAW IN THE MATTER OF RESERVATION

4.1 The Constitution of India came into force in the year 1950. It is not as ifreservation was not in existence in Tamil Nadu in the pre-Constitutionperiod. Reservation was, as a matter of fact, in vogue in Tamil Nadu oncommunal or caste basis. The communal reservation was sought to beintroduced for the first time in Tamil Nadu in the year 1921 when JusticeParty was successful in the Elections. The classification of communitiesfor reservation was broadly divided into six divisions viz., (1)Brahmins,(2)Non-Brahmin Hindus, (3)Indian Christians, (4)Mohammedans,(5)Europeans and Anglo-Indians and (6)Others. The one factor takeninto account for communal reservation to various castes andcommunities is that the percentage of reservation was not at all providedon the basis of proportionate population of the respective communities.To say for example, the Brahmins were given representation all throughfrom the commencement of reservation in 1921 till up to 1950 in theservices under the State which was in excess of their population.

4.2 When the Constitution came into force, trouble and turmoil startedamong the communities regarding reservation. The hierarchy of highercastes went to the extent of saying that the reservation either in thematter of admission in educational institutions or for appointment in theservices under the State are not at all to be based on caste or communalbasis and it should be based on merits irrespective of community orcaste to which a candidate belonged. Institution of proceedings wasresorted to by certain hierarchy of higher caste communities challengingthe reservation based on communal basis. The first case that was filedin Madras was the case of State of Madras v. Champakam Dorairajan in1951.

4.3 Endless battle was going on in respect of reservation year after year andthe battle of reservation continues as of now.

4.4 Such cases regarding reservation filed in the Apex Court of this countryare chronologically arranged in this Chapter.

4.5 Chronology of cases

4.5.1 State of Madras v. Champakam Dorairajan[AIR1951 SC 226=(1951)1 SCR 525]

This is the first case which arose on reservation after the commencementof Constitution of India in the year 1950. Even prior to thecommencement of the Constitution in the year 1950, there was aCommunal G.O. in the then Madras State providing for reservation to


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certain castes and communities for admission into professional courseslike Medicine and Engineering. One Champakam Dorairajan challengedthe communal G.O. as ultra vires the provisions of the Constitution. Thecommunal G.O. was in fact struck down by a Bench of the High Courtand later confirmed by the Supreme Court. Thereafter it was found outthat the petitioner Champakam Dorairajan who initiated the casechallenging the G.O. was not at all an applicant seeking admission intomedical course. She, as a matter of fact, fabricated the case as if shewas a candidate seeking admission into medical course and because ofreservation having been provided to certain castes and communities oncommunal basis, she was unable to get admission in medical course asbeing a person belonging to a forward community though she scoredhigh marks than those of selected candidates.

Thanthai Periyar created a very great stir and commotion in the State ofMadras and consequently there was a mass upsurge in the State.Jawaharlal Nehru, the late lamented Prime Minister of India, in rather abid to quell the agitation and satisfy the people of Tamil Nadu, introducedthe first amendment to the Constitution in the year 1951 by insertion ofClause 4 of Article 15 which prescribes, “nothing in this Article or inclause 2 of Article 29 shall prevent the State from making any specialprovision for the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castes and ScheduledTribes.

4.5.2 Budhan Chowdary vs. State of Bihar[AIR 1955 SC 191]

In this case, the Supreme Court laid down two important propositions asthe test to be satisfied to be a valid classification under Article 14.

(i) There must be an intelligible differentia as to those who are includedwithin the class and those who are excluded out of it.

(ii) This intelligible differentia must have a rational nexus to the objectthat is sought to be achieved.

So unless and until a classification satisfied both these tests, it will not bea valid classification.

4.5.3 M.R.Balaji vs. State of Mysore[AIR 1963 SC 649]

The dictum as below had been laid down:-

(1) Caste cannot be the only basis for classification to ascertain thesocially and educationally backward classes of persons.


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(2) A classification within classification viz., most backward class – isnot possible.

(3) Reservation cannot be made for the majority of seats i.e., morethan fifty per cent of seats.

(4) Social and educational backwardness must be comparable in itsbackwardness to that of scheduled castes and scheduled tribes.

Subsequent to the decision in M.R.Balaji, the Mysore Government hascompletely given up the caste factor. Only economic factor or professioncoupled with income was taken as the principle.

4.5.4 Chitraleka vs. State of Mysore[AIR 1964 SC 1823]

The Supreme Court, while upholding this classification as valid, addedthat caste also a relevant factor which should be taken intoconsideration.

4.5.5 P.Rajendran vs. State of Tamil Nadu[AIR 1968 SC 1012]

The Tamil Nadu Government reserved seats adopting “District-wiseClassification”. The Supreme Court said that District-wise classificationwas unconstitutional.

4.5.6 A.Periyakaruppan vs. State of Tamil Nadu[(1971) 1 SCC 38]

Tamil Nadu was divided into various Units like Madras University,Madurai University, etc. The Supreme Court said that Unit-wiseclassification was unconstitutional.

4.5.7 K.S.Jayashree vs. State of Kerala[AIR 1976 SC 2381]

The Kerala Government, for the purpose of classification, had taken intoconsideration the economic criteria or “means test”, as it is called. In thecase of those persons who belonged to Elava community and thosepersons whose income exceeds Rs.12,000/- per annum, the KeralaGovernment said, shall not be included within the definition of “backwardclasses”. In K.S.Jayashree vs. State of Kerala, the Supreme Courtupheld the classification of the Kerala Government, as valid.


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The Government of Tamil Nadu, in 1978, fixed the economic criteria likethat if a person’s gross salary income exceeds Rs.9,000/- per annumduring the financial year ending 31st March of the previous year, he shallnot be included in the definition of backward class.

This G.O. was questioned before the Full Bench of the Madras HighCourt. The majority of the Full Bench consisting of the then OfficiatingChief Justice Hon’ble Mr.Justice P.R.Gokulakrishnan, Mr.JusticeS.Mohan, upheld the validity of the G.O., while Hon’ble Mr.JusticeV.Ramasamy recorded a discordant note of dissent and said that “aclassification must be definite” and a person must not be permitted on hisvolition to choose his class.

4.5.8 K.C.Vasanth Kumar vs. State of Karnataka[1985 Supp SCC 714],

This was a Constitution Bench decision. The main purpose of this casewas to give a guideline to various States as to what is the criteria thatmust be adopted for determining the socially and educationally backwardclasses of persons.

Each of the five Judges gave their own separate but independentjudgments.

Justice E.S.Venkataramaiah elaborately considered as to why thisnecessity arose for reservation of backward classes and said, “perhaps,not all inequalities can ever be rectified and it is certain that some can berectified only by creating new inequalities and new grievances.” By strictapplication of general equality what would be the result; it will result inpermanent injustice or permanent inequality. This sort of a propositionwas first enunciated by the Permanent Court of International Justice inthe famous case of Minority Schools in Albenia etc. In that case, thePermanent Court of International Justice held that the application ofperfect equality may result in inequality. Therefore protection is given inthe form of reservation. It has been termed as “protective discrimination”or “compensative discrimination” and Justice Venkataramaiah coined anew word “result-oriented discrimination”. Then, such a competitionmust be fair. Not only it must be free but it must also be fair. Thecompetition to be fair, we must have to give certain weightage or certainhandicaps or certain reservations for those persons who are hailing fromsuch socially or educationally backward classes of persons and that iswhy the classification or reservation is provided under the Constitution.While discussing this issue, Justice Venkataramaiah said, “forgenerations, i.e., for thousands of years, some communities have beenkept in the dark and they were not permitted to learn.” Such a situation


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cannot be rectified in a short span of forty or fifty years but it has to go onfor a number of years till the State comes to a conclusion that all of themhave attained certain amount of advancement. Then, he says,“inalienable rights cannot be earned posthumously.” “Social injusticealways balances its books with the red ink”. What he means by sayingso is that if we do not take proper protection or consideration, it will resultin revolution. According to him, caste is a relevant factor forconsideration in determining the backwardness of a class or caste.

Justice Chinnappa Reddy in his judgment said that caste is a very deep-rooted idea in our Indian society and it has traversed even the barriers ofreligion. In our community, there are certain Christian Nadars, ChristianKhammas, Christian Reddis, and so on. Even after conversion, castedoes not cease to follow them and therefore caste in our system cannotbe abolished even when we wish to abolish caste completely. JusticeChinnappa Reddy said that what is contemplated by economic criteria is“class poverty” and not “individual poverty”. So before declaring aparticular community as a socially and educationally backward class, onehas to take all other considerations along with economic criteria and thencome to a conclusion and if some are above the average or evencompared to forward communities, those persons cannot be eliminatedfrom the categories of backward classes.

Sen.J., said that we cannot take economic criteria as such. Caste mustalso be taken into consideration as a relevant test.

Justice Desai said that economic criteria shall be applied and sucheconomic criteria shall be the “load bearer”.

Chandrachud C.J., did not give any judgment as such, but he had laiddown five propositions:

(i) reservation in favour of Scheduled Castes and Scheduled Tribesmust continue as at present for a further period not exceedingfifteen years;

(ii) the “means test” i.e., test of economic backwardness ought to bemade applicable even to Scheduled Castes and Scheduled Tribesafter the period of fifteen years;

(iii) in so far as other backward classes are concerned, two tests shallbe conjunctively applied – one is, they should be comparable toScheduled Castes and Scheduled Tribes in the backward classesand the other is, they should satisfy the “means test” that theGovernment may lay down;

(iv) the policy of reservation in employment should be reviewed everyfive years;


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(v) for Scheduled Castes and Scheduled Tribes the present systemshall continue for another fifteen years. Once these fifteen yearsare completed, it will be fifty years. Thereafter, even for theScheduled Castes and Scheduled Tribes, “economic criteria”should be applied.

Justice Chinnappa Reddy said that there may be classification withinclassification or there may be a classification within the backward classas backward class or most backward class.

These three-Judges out of the five Judges held that caste can be thebasis of classification. One of the Judges said that cast cannot be thebasis of classification.

The propositions laid down by the Chief Justice lack the basis of anyrationale for the propositions so laid down therein and therefore thosepropositions cannot at all be stated to be borne out of that judgment.

Thus the Supreme Court, by a majority, held that caste can be the basisof backwardness.

4.5.9 Indra Sawhney vs. Union of India[1992 SCC(L&S)Supp 1=1992 Supp(3)SCC 217]

This case, popularly known as the “Mandal Case”, is a nine-Judge Benchdecision of the Supreme Court. The following propositions were laiddown:

(i) Despite the factum of consistently holding the view right from 1960till up to 1992 by the Supreme Court that the concept of backwardclass in Article 16(4) and the concept of socially and educationallybackward class in Art.15(4) being one and the same, however, theSupreme Court, in this case, took a diametrically opposite turn andsaid that the concept of backward class in Art.15(4) and Ar.16(4)is not one and the same by overriding all those earlier judgments.The Supreme Court further said that “backward class” in Art.16(4)is wider than “socially and educationally backward class” inArt.15(4). “Backward classes of citizens” in Art.16(4) takes inScheduled Castes and Scheduled Tribes and all other backwardclasses of citizens including the socially and educationallybackward classes; certain classes which may not qualify forArt.15(4) may qualify for Art.16(4). This is the view of the five outof nine Judges comprising the Bench;


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(ii) The view that a community or class of people to be classified asbackward class must be comparable of its backwardness to that ofbackwardness of Scheduled Castes and Scheduled Tribes hasbeen rejected;

(iii) Reservation at the stage of promotion has been held to beunconstitutional and reservation at the stage of initial appointmentalone is permitted;[This sort of a holding of the Supreme Court has been set atnaught by the insertion of clause (4A) under Art.16 by theConstitution (Seventy-seventh Amendment) Act, 1995, section 2w.e.f. 17/6/1995 and clause (4B) by the Constitution (Eighty firstAmendment) Act, 2000, section 2 w.e.f. 9/6/2000]

(iv) Unless the creamy layer is excluded from such backward classes,no reservation can be made;

(v) Economic criteria alone cannot determine backward class;(vi) Concept of creamy layer cannot at all be extended to Scheduled

Castes and Scheduled Tribes;(vii) Art.16(4) permits classification of backward classes and more or

most backward classes;(viii) Government of India may specify the services and posts to which

the rule of reservation shall not apply;(ix) In Tamil Nadu, reservation in favour of backward classes in the

services of the State cannot continue beyond 19/5/1993 unlesscreamy layer is excluded.

(x) While fifty per cent shall be the rule, it is necessary not to put outof consideration certain extraordinary situations inherent in thegreat diversity of this country and the people. It might happen thatin far flung and remote areas the population inhabiting in thoseareas might, on account of their being out of the main stream ofnational life and in view of the conditions peculiar to andcharacteristic of them, deemed to be treated in a different way,some relaxation of strict rules may become operative. This beingso, extreme caution has to be exercised and a special case madeout.

4.5.10 M.Nagaraj v. Union of India[AIR 2007 SC 71 = (2006) 8 SCC 212]

This is a judgment by the Constitution Bench of the Supreme Courtcomprising of Y.K.Sabharwal, C.J., and K.G.Balakrishnan, S.H.Kapadia,C.K.Thakker and P.K.Balasubramanyan, JJ. S.H.Kapadia, J, [as HisLordship then was], spoke for the Bench.

In this case, the constitutional validity of the Constitution (Seventyseventh Amendment) Act, 1995, Constitution (Eighty first Amendment)


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Act, 1995, Constitution (Eighty second Amendment) Act, 1995 and theConstitution (Eighty fifth Amendment) Act, 1995, was challenged, and theCourt upheld these Acts. This apart, the Supreme Court happened toconsider the question of making a provision for reservation for ScheduledCastes and Scheduled Tribes at the promotional level in the matter ofpublic employment.

The width and amplitude of the right to equal opportunity in publicemployment, in the context of reservation, broadly falls for considerationunder Article 32 of the Constitution.

The main principles laid down by the Constitution Bench of the SupremeCourt bristle as below:-

(1) States have to identify and collect quantifiable data showing thebackwardness of classes and inadequacy of representation of thatclass in public employment, keeping in mind maintenance ofefficiency in administration;

(2) If the State concerned fails to identify and measure the same, theprovision for reservation would be invalid;

(3) In each case, Court has got to be satisfied that State has exercisedits discretion properly for which State concerned will have to placebefore the Court the requisite quantifiable data in each case andsatisfy the Court that the reservations became necessary onaccount of inadequacy of representation of Scheduled Castes andScheduled Tribes in particular class of posts, without affectinggeneral efficiency of service as mandated under Art.335;

(4) The limitations on power available to the States under Articles16(4A) and (4B) are:(i) the ceiling limit of a maximum of 50% reservation (quantitative

limitation);(ii) the principle of creamy layer (qualitative exclusion);(iii) the compelling reasons for exercise of power under, namely,

backwardness and inadequacy of representation; and(iv) the overall administrative efficiency as required by Article 335;

(5) Articles 16 (4A) and (4B) are applicable to Scheduled Castes andScheduled Tribes only, and are to be applied only on the basis ofpost-based roster with in-built concept of replacement;

(6) How best the conflicting claims of efficiency of administration andbackwardness and inadequacy of representation are to beoptimized can only be done by the administration, in the context ofprevailing local conditions in public employment;

(7) Constitutional amendments do not infringe either the width of theConstitution amending power or alter the identity of the Constitutionor its basic structure;


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(8) Art.16(4) is enacted as a remedy for the past historicaldiscrimination against a social class;

(9) Art.16(4A) and (4B) are both inspired by observations of theSupreme Court in Indra Sawhney’s case;

(10) Art.16(4A) and (4B) are enabling provisions and they arepermissive in nature; they leave it to the States to provide forreservation;

(11) If the appropriate Government enacts a law providing forreservation without keeping in mind the parameters under Art.16(4)and Art.335, then the Supreme Court may certainly set aside andstrike down the legislation;

(12) The State is not bound to make reservation for Scheduled Castesand Scheduled Tribes in matters of promotion. However, if theywish to exercise their discretion and make reservation in promotion,States have to collect quantifiable data showing the backwardnessof the class and inadequacy of representation of that class in publicemployment, keeping in mind maintenance of efficiency asindicated by Art.335;

(13) Every discretionary power is not necessarily discriminatory.Equality is not violated by mere conferment of discretionary power.It is violated by arbitrary exercise by those on whom it is conferred.This is the theory of “guided power”. This theory is based on theassumption that in the event of arbitrary exercise by those on whomthe power is conferred, the same would be corrected by the courts.This is the basic principle behind the enabling provisions which areincorporated in Art.16(4A) and 16(4B);

(14) Art.16(4) is not an exception to Art.16(1); rather, the two operate indifferent classes. The words “nothing in this Article” in Art.16(4)represent a legal device allowing positive discrimination in favour ofa class;

(15) Art.16(4) has to be construed in the light of Art.335. Therefore,further limitations on the discretion of the Government in the matterof reservation under Art.16(4) as well as Art.16(4A) come in theform of Art.335;

(16) Secularism, democracy, reasonableness, social justice, etc. areoverarching principles which provide linking factor for principle offundamental rights like Arts.14, 19 and 21. They pervade allenacted laws and stand at the pinnacle of the hierarchy ofconstitutional values and are beyond the amending power ofParliament under the Constitution’

(17) The theory of basic structure is the only structure by which thevalidity of Constitutional amendment is to be judged. The doctrine ofbasic structure has been essentially emanated from the GermanConstitution. Therefore it will be useful to look at commonconstitutional provisions under German law which deal with rights,such as, freedom of press or religion, which are not mere values,


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they are justiciable and capable of interpretation. The valuesimpose a positive duty on the State to ensure their attainment as faras practicable. The rights, liberties and freedoms of the individualare not only to be protected against the State; they should befacilitated by it. They are to be informed. Overarching andinforming of these rights and values is the principle of human dignityunder the German basic law;

(18) Part III of the Constitution does not confer fundamental rights. Itconfirms their existence and gives them protection. Its purpose isto withdraw certain subjects from the area of political controversy toplace them beyond the reach of majorities and officials and toestablish them as legal principles to be applied by the courts. Thefundamental right is a limitation on the power of the State;

(19) The theory of basic structure is based on the concept ofconstitutional identity. It was observed that “one cannot legally usethe Constitution to destroy itself”. It was further observed that “thepersonality of the Constitution must remain unchanged”. The word“amendment” postulates that the old Constitution survives withoutloss of its identity despite the change and it continues even thoughit has been subjected to alteration. This is the constant theme ofthe opinions in the majority decision in Kesavananda Bharati’scase;

(20) Unarticulated rights are implicit in the enumerated guarantees. It ison this principle that Supreme Court has in numerous casesdeduced fundamental features not specifically mentioned in Part IIIof the Constitution;

(21) Articles 14, 15 and 16, Preamble and Article 368 are the essence ofdemocracy and accordingly, a basic feature of the Constitution;

(22) There is a difference between “normal equality” and “proportionateequality”. There is a difference between “formal equality” and“egalitarian equality”. “Formal equality” means that law treatseveryone equal and does not favour anyone either because hebelongs to the advantaged section of the society or to thedisadvantaged section of the society. The concept of “proportionalequality” expects the States to take affirmative action in favour ofthe disadvantaged sections of the society within the framework ofliberal democracy. “Proportional equality” is equality “in fact”whereas “formal equality” is equality “in law”. Egalitarian equality isproportional equality;

(23) Applying the working test evolved by Chandrachud, J., in Electioncase [1995 Supp.SCC1] @ SCC p.252, para 663, the word“reservation” has to be considered in the context of Art.16(4) and itis in that context that Art.335 of the Constitution has to be seen.The guiding principle must be what the Constitution-framersintended originally and not general concepts or principles.Therefore, schematic interpretation of the Constitution has to be


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applied and this is the basis of the working test evolved byChandrachud,J. in the Election case;

(24) There can be no rule of law if there is no equality before the law;and rule of law and equality before the law would be empty words iftheir violation was not a matter of judicial scrutiny or judicial reviewand juridical relief and all these features would lose theirsignificance if judicial, executive and legislative functions wereunited in only one authority, whose dictates had the force of law.

4.5.11 Ashoka Kumar Thakur v. Union of India[(2008) 6 SCC 1]

This is a decision by the Constitution Bench of the Supreme Courtcomprising K.G.Balakrishnan, CJ., and Dr.Arijit Pasayat, C.K.Thakker,R.V.Raveendran and Dalveer Bhandari, JJ.

The constitutional validity of the Constitution (Ninety third Amendment)Act, 2005 and Central Educational Institutions (Reservation inAdmission) Act, 2006 [Act 5 of 2007] was challenged. The ConstitutionBench, after taking into consideration the various projection of hues ofviews of Mr.Ashoka Kumar Thakur, the petitioner who appeared inperson and of very many learned Counsel, ultimately passed an order asreflected below:-

“Order of the Court

668.The Constitution (Ninety-third Amendment) Act, 2005, is validand does not violate the basic structure of the Constitution so far asit relates to the State-maintained institutions and aided educationalinstitutions. Question whether the Constitution (Ninety-thirdAmendment) Act, 2005 would be constitutionally valid or not so far asprivate unaided educational institutions are concerned, is not

considered and left open to be decided in an appropriate case.Bhandari, J. in his opinion, has, however, considered the issue andhas held that the Constitution (Ninety-third Amendment) Act, 2005 isnot constitutionally valid so far as private unaided educationalinstitutions are concerned.

669.Act 5 of 2007 is constitutionally valid subject to the definition ofOther Backward Classes in Section 2(g) of Act 5 of 2007 being

clarified as follows: If the determination of Other Backward Classesby the Central Government is with reference to a caste, it shallexclude the creamy layer among such caste.

670. Quantum of reservation of 27% of seats to Other BackwardClasses in the educational institutions provided in the Act is not illegal.


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671.Act 5 of 2007 is not invalid for the reason that there is no time-limitprescribed for its operation but majority of the Judges are of the viewthat the review should be made as to the need for continuance ofreservation at the end of 5 years.

672.The writ petitions are disposed of in the light of majority judgment.However, in Contempt Petition No.112 of 2007 in WP (C) No.265 of2006, no orders are required.

4.5.12 W.P.(C) Nos.454/1994, 473/1994, 238/1995 and 35/1996 [Cases challenging the quantum of reservation]

The Writ Petitions challenging quantum of reservation viz., W.P. (C)Nos.454/1994, 473/1994, 238/1995 and 35/1996 pending before theSupreme Court of India came up before a Bench comprising Hon’ble TheChief Justice, Hon’ble Mr.Justice K.S.Radhakrishnan and Hon’bleMr.Justice Swatanter Kumar. The order passed by the above Bench on13.7.2010 gets reflected as below:-

The short question which arises for determination in these writpetitions is, whether the quantum of reservation provided for in TamilNadu Backward Classes, Scheduled Castes and Scheduled Tribes[Reservation of Seats in Educational Institutions and of Appointmentsto the Posts in the Services under the State] Act, 1993, is valid?

The impugned Act received the Presidential assent on 19th July, 1994.

Subsequent to the filing of the above writ petitions, Articles 15 and 16of the Constitution have been amended vide Constitution [Ninety-thirdAmendment] Act, 2005, and Constitution [Eighty-first Amendment] Act,2000, respectively, which Amendment Acts have been the subject-matter of subsequent decisions of this Court in the cases of M.Nagaraj& Ors. vs. Union of India & Ors., reported in 2006 (8) S.C.C. 212 andAshoka Kumar Thakur vs. Union of India & Ors., reported in 2008 (6)S.C.C. 1, in which, inter alia, it has been laid down that if a Statewants to exceed fifty per cent reservation, then it is required to baseit s decision on the quantifiable data. In the present case, thisexercise has not been done. Therefore, keeping in mind the saidparameter, we direct the State to place the quantifiable data before theTamil Nadu State Backward Classes Commission and, on the basis ofsuch quantifiable data amongst other things, the Commission willdecide the quantum of reservation. We are informed by learnedSolicitor General that such data in the form of Reports, which aresubsequently prepared, is already available.


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Consequently, these writ petitions stands disposed of with a directionto the State Government to re-visit and take appropriate decision inthe light of what is stated above. It needs to be mentioned that theinterim orders passed by this Court from time to time in relation toadmissions to Educational Institutions shall continue to be in force andin operation for a period of one year from today.

In the circumstances, we are not expressing any opinion on thevalidity of 1993 Act at this stage.

The Registry is directed to send the records and proceedings, if any,connected to these writ petitions back to the State.

4.5.13 W.P.(C) No.194 of 2006[Exclusion of creamy layer in Tamil Nadu]

VOICE (Consumer Care Council) filed W.P. (C) No.194 of 2006 beforethe Supreme Court against the State of Tamil Nadu seeking for exclusionof “creamy layer from the benefit of reservation in the matter ofadmission to Educational Institutions and in the matter of employmentunder various services in the State of Tamil Nadu.

The three-Judges Bench of the Supreme Court comprising Hon’ble TheChief Justice, Hon’ble Mr.Justice K.S.Panicker Radhakrishnan andHon’ble Mr.Justice Swatanter Kumar passed an order on 03/01/2011 asbelow:-

By this writ petition, petitioner seeks a direction to the State of TamilNadu to implement the directions of this Court contained in thejudgment dated 16th November, 1992, in the case of Indra Sawhney v.Union of India, in the context of identification and exclusion of thecreamy layer from among the backward class communities in theState of Tamil Nadu. In other words, petitioner seeks exclusion of thecreamy layer from the benefit of reservation in the matter of admissionto Educational Institutions and in the matter of employment undervarious services in the State of Tamil Nadu.

The matter is squarely covered by our order dated 13th July, 2010 inWrit Petition (C) No.259 of 1994 and others (including Writ Petition (C)Nos.454 of 1994, 473 of 1994, 238 of 1995 and 35 of 1996). By thesaid order we have directed the State of Tamil Nadu to collect andplace the quantifiable data before the Tamil Nadu State BackwardClasses Commission and on the basis of such data the Commissionshould decide the quantum of reservation.


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In the light of our order dated 13th July, 2010 in the above writpetitions, we are directing the Tamil Nadu State Backward ClassesCommission also to examine the grievance of the petitioner hereinand, accordingly, decide the matter within the time bound programmegiven in our order dated 13th July, 2010. In short, we hold that thefacts of Writ Petition (C) No.194 of 2006 filed by VOICE (ConsumerCare Council) against the State of Tamil Nadu stands covered by ourorder dated 13th July, 2010. Accordingly, the writ petition standsdisposed of.

4.6 A survey of the various decisions emerging from the Supreme Court ofIndia on and from the time of inception of the Constitution relatable toreservation in matters of appointment in the services under the State aswell as admission in educational institutions on a broad spectrumanalysis points out in no uncertain terms a clear picture of thosedecisions expressing the various hues of views contrary to each other onall aspects of reservation, such as the criteria to be adopted for theevaluation of socially and educationally backward classes of citizens,quantum of reservation, applicability of creamy layer besides incidentalor attendant matters thereto, apart from deviating from the provisions ofthe Constitution in the sense of stating something which were notexpressly found stated therein or expressing something contrary to theexpress and explicit provisions adumbrated therein under the façade ofinterpretation of the Constitution and even going to the extent ofdelivering decisions having been rendered without any rationale orreasoning or basis for conclusions arrived at, rendering such decisions inthe eye of law as being nugatory.

4.7 The Constitution, of course, has no eyes to see, has no mouth to speakto and it has to be seen through the eyes of the Judges and spoken tothrough their mouth. Therefore, Constitution is, what the Judges say it is.However, it does not mean that the Judges are empowered to stateanything they want to state – under the garb or façade of interpretationand – the interpretation so made by the Judges must be based on solidreasoning or rationale besides not being opposed to or shorn of reality ofthe situation. No doubt true it is, that the interpretation of the Constitutionis different and distinct from the interpretative analogy to be adoptedrelatable to ordinary laws of the land. But that does not mean that theJudges are empowered to substitute their own views as the intent andpurport of the constitutional provisions without an iota or trace from theexpress and explicit provisions of the Constitution. That sort of aninterpretative analogy of the Constitutional provisions, if accepted, isbound to spell out danger to the parliamentary democracy which isexpected to reflect the will of the people of this country.


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4.8 But in the case of K.C.Vasant Kumar vs. State of Karnataka supra, whichis a five Judges-Constitution Bench decision, Hon’ble Mr.JusticeChinnappa Reddy said that what is contemplated by economic criteria is“class poverty” and not “individual poverty”. So before declaring aparticular community as a socially and educationally backward class, onehas to take all other considerations along with economic criteria and thenmust come to a conclusion and if some are above the average or evencompared to forward communities, those persons cannot be eliminatedfrom the categories of backward classes. As to which of the two views islegally sound and amenable to reason, justice and fair play, is left to bedecided by the legal luminaries of this country. It is not as if the views asexpressed by the Supreme Court remains constant all through and theplain fact is, the views expressed on a particular aspect of the matter willget changed in the process of sands of passage of time. The views asexpressed in Indra Sawhney’s case requires reconsideration and reviewby an equivalent or a larger Bench for the betterment of the society atlarge if law is considered to be in existence for the people and not thepeople for the law, to maintain its pristine glory.

4.9 The views as expressed by Justice E.S.Venkataramayya in the Benchdecision in K.C.Vasant Kumar which have been pointed out earlier,requires to be reiterated to pinpoint to the outside world the sheernecessity of bringing about the beneficial and benevolent effect of a classof society which had been suppressed and oppressed for thousands ofyears. In the said decision, His Lordship elaborately considered as towhy this necessity arose for reservation of backward classes and said,“Perhaps, not all inequalities can ever be rectified and it is certain thatsome can be rectified only by creating new inequalities and newgrievances.” By strict application of general equality what would be theresult; it will result in permanent injustice or permanent inequality. Thissort of a proposition was first enunciated by the Permanent Court ofInternational Justice in the famous case of Minority Schools in Albeniaetc. In that case, the Permanent Court of International Justice held thatthe application of perfect equality may result in inequality. Thereforeprotection is given in the form of reservation. It has been termed as“protective discrimination” or “compensative discrimination” and JusticeVenkataramaiah coined a new word “result-oriented discrimination”.Then, such a competition must be fair. Not only it must be free but itmust also be fair. The competition to be fair, we must have to givecertain weightage or certain handicaps or certain reservations for thosepersons who are hailing from such socially or educationally backwardclasses of persons and that is why the classification or reservation isprovided under the Constitution. While discussing this issue, JusticeVenkataramaiah said, “for generations, i.e., for thousands of years, somecommunities have been kept in the dark and they were not permitted tolearn.” Such a situation cannot be rectified in a short span of forty or fifty


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years but it has to go on for a number of years till the State comes to aconclusion that all of them have attained certain amount of advancement.Then, he says, “Inalienable rights cannot be earned posthumously.”“Social injustice always balances its books with the red ink”. What hemeans by saying so is that if we do not take proper protection orconsideration, it will result in revolution. According to him, caste is arelevant factor for consideration in determining the backwardness of aclass or caste.

4.10 The question as to whether a class of citizens belongs to socially andeducationally backward class of people or not, falls into the arena ofjurisdiction of the Backward Classes Commission constituted. It is forsuch a Commission to investigate such questions on the basis of thecriteria involved and submit a report to the Government. It is for theState Government to accept or reject the classification so made by theCommission on the scrutiny of the report so filed. It is not for the Court todecide such a question as to whether a particular class of people issocially and educationally backward. If the Courts resort to such anexercise, it is trampling on the jurisdiction of the Backward ClassesCommission and the Government. Pertinent it is to note what theSupreme Court said in Asoka Kumar Thakur’s case supra in paragraph669 which gets reflected as under:-

669. Act 5 of 2007 is constitutionally valid subject to the definitionof Other Backward Classes in Section 2(g) of Act 5 of 2007 beingclarified as follows: If the determination of Other Backward Classesby the Central Government is with reference to a caste, it shallexclude the creamy layer among such caste.

4.11 From what has been extracted above, it is crystal clear that if thedetermination of backward classes by the Central Government is withreference to “caste”, it shall exclude creamy layer among such castes.Such sort of a view is going beyond the purview of the jurisdiction of theCourt. Once other Backward Classes are decided by the application ofthe criteria evolved viz., social, educational and economic criteriarequirement of exclusion of creamy layer from other Backward Classes isunwarranted and against the very provisions of the Constitution. Thebackwardness of the educationally backward classes had beendetermined only with reference to the social and educationalbackwardness of such class and the determination of such classexclusive on the application of economic criteria is not permissible.Exclusion of classes of people from Backward Classes by the applicationof creamy layer is nothing but determination of such class of peopleamong the socially and educationally backward classes only on theapplication of economic criteria which is forbidden by the Constitution.The further serious infirmity arising from the opinion as expressed by the


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Supreme Court is that a vast majority of Hindus is likely to get affected bythe deprivation of reservation by the application of creamy layer principleto such classes of backward classes of Hindus. It is not as if the sociallyand educationally backward classes of people are available only inHindus and not in other religions. There are socially and educationallybackward classes of people in religions such as Islam and Christianity.The mandate as given above on the creamy layer principle is not at allapplicable to where the determination of other backward classes is notwith reference to a caste. Since the socially and educationally backwardclasses of people with reference to Muslims and Christians are notdetermined on the basis of castes, it goes without saying that theexclusion of certain classes of people in the Other Backward Classes inreligions other than Hindus is not permissible. This sort of an invidiousdiscrimination cannot be allowed to exist in the eye of law. Exceptpointing out such a lacuna in the judgment, the main idea sought to beprojected is that the court has no jurisdiction in the sphere ofdetermination of the socially and educationally backward classes ofpeople from the citizens of this country. The appropriate authority todecide the backwardness of a caste, community or class is the statutoryCommission appointed for the purpose. The Commission, after dueinvestigation, files the report to the Government. The Government mayor may not accept the report making the classification. The Court hasthe power to intervene if the classification so made is unreasonable andunfair.

4.12 The Supreme Court in Indra Sawhney supra stated that “backwardclasses” in Art.16(4) is wider than “socially and educationally backwardclasses” in Art.15(4). “Backward classes of citizens” in Art.16(4) takes inScheduled Castes and Scheduled Tribes and all other backward classesof citizens including the socially and educationally backward classes;certain classes which may not qualify for Art.15(4) may qualify forArt.16(4). This is the view of five out of the nine Judges comprising theBench.

4.13 At the commencement of the Constitution, Art.16(4) was the one and theonly constitutional provision making reservation for backward classes ofcitizens. There was no specific provision providing for reservation toScheduled Castes and Scheduled Tribes. Art.16(4) prescribes thatnothing contained in this Article shall prevent the State from making anyprovision for reservation of appointments or posts in favour of backwardclasses of citizens which, in the opinion of the State, is not adequatelyrepresented in the services under the State. Art.16(4) therefore can bestated to deal with only reservation for backward classes in the servicesunder the State.


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4.14 Art.15(4) which prescribes that nothing in this Article or in clause (2) ofArt.29 shall prevent the State from making any special provision for theadvancement of any socially and educationally backward classes ofcitizens or for the Scheduled Castes and Scheduled Tribes, had beeninserted in the Constitution by the Constitution (First Amendment) Act,1951 [vide S.2]. Clause (4) of Art.15 does not specifically use anyexpression “reservation”, but it refers to the expression “specialprovision”. The special provision as contemplated in Art.15(4) was forthe advancement of any socially and educationally backward classes ofcitizens or for Scheduled Castes and Scheduled Tribes. This provision isapplicable for providing admission to such classes of people as referredto in Clause (4) of Art.15 in educational institutions and otherconcessions granted to them by the Government.

4.15 After the introduction of Art.15(4) in the Constitution in the year 1951,both the Articles 15(4) and 16(4) were considered to be of same effect byvarious decisions of the Supreme Court, in the sense, where thebackward classes referred to in Art.16(4) is relatable to ScheduledCastes and Scheduled Tribes, Backward Classes and Other BackwardClasses. It is for the first time in Indra Sawyney’s case the SupremeCourt went to the extent of saying that the two Articles are distinct anddifferent and in fact Art.16(4) is wider than Art.15(4). The classes ofpeople which are coming under Art.15(4) may also come and attain thebenefits of reservation in the services under the State under Art.16(4).But one thing is certain; the Scheduled Castes and Scheduled Tribes,Backward Classes and Most Backward Classes are coming under thepurview of both the Articles 15(4) and 16(4). Therefore, the applicationof Art.16(4) in providing for reservation in the services of the State cannotat all be distinct and different for the Scheduled Castes and ScheduledTribes on the one hand and the Backward Classes and Most BackwardClasses on the other hand.

4.16 Right from the inception of the Constitution, the Scheduled Castes andScheduled Tribes were provided with reservation in the services underthe State proportionate to their population. Such being the case, it goeswithout saying that all socially and educationally backward classes ofcitizens are to be provided with reservation under Art.16(4) in theservices under the State proportionate to the population of socially andeducationally backward classes of citizens just like the Scheduled Castesand Scheduled Tribes are provided with reservation in the services underthe State proportionate to their population. A cursory perusal of the saidclause does not indicate any prescription of specific extent of reservationto be provided for in favour of backward classes which includes SC andST in the services under the State. The one and the only restriction, if atall, it can be deciphered from the language used therein cannot beanyone other than the one relatable to inadequacy of representation in


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the services under the State. The words or expressions viz., “notadequately represented in the services under the State” has to beascribed the meaning. The meaning of the word “adequate” as has beengiven in The Concise Oxford Dictionary – The New Edition for 1990s – atpage 14, runs as under :-

“adequate. adj. 1.sufficient, satisfactory (often with the implication ofbeing barely so). 2.(foll. by to) proportionate 3. barely sufficient.”

4.17 The reason why the Scheduled Castes and Scheduled Tribes have beengiven reservation proportionate to their population and the reason whythe socially and educationally backward classes of citizens are notprovided with reservation proportionate to their population is notunderstandable as both the sections are people figuring in Art.16(4) inthe entitlement of reservation in the services under the State.

4.18 Two propositions were laid down by the Supreme Court in IndraSawhney’s case:-

(1) The totality of the reservation in the services under the State shouldnot exceed 50% in normal circumstances; and it is permissible toexceed 50% in extraordinary circumstances requiring suchexcessive reservation;

(2) The Scheduled Castes and Scheduled Tribes are entitled toreservation in the services under the State proportionate to theirpopulation.

4.19 The population of Scheduled Castes and Scheduled Tribes has beenoriginally enumerated as 15% and 7.5% respectively, totalling to 22.5%.Deducting 22.5% from 50%, what remains is 27.5%. Under the firstproposition as laid down by the Supreme Court, the totality of reservationshould not exceed 50% in normal circumstances, the reservation forOther Backward Classes was made only to the extent of 27% and noteven 27.5%. The proposition as laid down by the Supreme Court bristlesto this:- As and when there is increase in strength of population ofScheduled Castes and Scheduled Tribes, there will be significantdecrease in the reservation to be made for Other Backward Classes.Therefore, there is no fixity of reservation for OBC. The reservation forOBC always depends upon the extent of population of Scheduled Castesand Scheduled Tribes. In the absence of any other provision other thanthe provision under Art.16(4) available in the Constitution, how on earth itis possible for the Supreme Court to provide for reservation on differentbasis to Scheduled Castes and Scheduled Tribes on the one hand andthe other Backward Classes on the other hand?


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4.20 Various decisions of the Supreme Court right from M.R.Balaji’s casesupra till upto Indra Sawhney’s case, create a hiatus in the matter ofreservation between the Scheduled Castes and Scheduled Tribes on theone hand and the Other Backward Classes on the other hand for no faultof the latter when especially the provision applicable is one and the sameviz., Art.16(4) for both of them and there being no other specific specialprovision providing for reservation for Scheduled Castes and ScheduledTribes.

4.21 The Scheduled Castes and Scheduled Tribes population in differentparts of the country is very wide. In about 8 to 10 States, the ScheduledCastes and Scheduled Tribes population goes far beyond 50% going upto the maximum extent of 94%. If the totality of the reservation shouldnot exceed 50% and the reservation for Scheduled Castes andScheduled Tribes is to be given proportionate to their population, how onearth it could be possible to accommodate both the Scheduled Castesand Scheduled Tribes and the other Backward Classes within the 50%benchmark in the case of States where the population of ScheduledCastes and Scheduled Tribes goes far beyond 50%? The otherinsurmountable question posed for consideration is as to how on earth itcould be possible to give reservation to Scheduled Castes andScheduled Tribes proportionate to their population within the 50% quotain case Scheduled Castes and Scheduled Tribes population itself isgoing beyond 50%? For instance, in Meghalaya State, the ST populationis to the extent of 94%. Which of those categories of people from amongthe ST are to be excluded from being provided reservation going beyond50% i.e, to the extent of 44%? In the State of Tripura, the population ofScheduled Castes and Scheduled Tribes is to the extent of 48.5% andthe reservation in the services under the State has been made inproportion to their population. The Central Government itself hasevaluated 42 communities as OBC and the State Government in its turnevaluated 46 communities as OBC. At present, there is no reservationfor OBC in the services or posts and in admission in educationalinstitutions due to the ceiling of 50% as the State has already provided48% reservation for Scheduled Castes and Scheduled Tribes. In view ofthe fact that the population of Scheduled Castes and Scheduled Tribes inthat particular State is about 48.2%, the State was not in a position togrant reservation to OBC and if at all reservation for OBC is to beprovided for, it cannot be more than 1.8%. The reason is, the totality ofthe reservation should not exceed 50% in normal circumstances.Deducting the percentage of reservation to be provided for SC and STviz., 48.2% from 50%, the remaining available percentage is 1.8%, inwhich case, the reservation if at all is to be provided OBC cannot gobeyond 1.7%.


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4.22 In the State of Orissa, a separate enactment had been made forproviding for reservation to the extent of 38% in the services under theState for SC and ST. Another separate enactment has also been madefor reservation to OBC to the extent of 27%. The totality of reservationprovided to SC, ST and OBC by way of two separate legislations comesto 65% far in excess of 50%. However, the Government implements only50% reservation in view of the Court orders. This sort of an anomaly isallowed to exist in India.

4.23 In the State of Arunachal Pradesh, the SC are 0.6% and ST are 64.2%,totalling to 64.8%. The reservation has been provided in the servicesunder the State to the extent of 80% for Arunachal Pradesh ST and 20%is for Open Competition.

4.24 Some of the States such as Karnataka, Rajasthan and Maharashtrawhich aimed to provide reservation in excess of theoretical margin of50% were compelled to reduce the quantum of reservation to 50% orbelow citing rulings of the Court.

4.25 Of course, it may be explained that Art.15(4) and Art.16(4) being anenabling rights, it will be open to the respective State Governments toprovide for reservation in a particular manner. However, the dictum laiddown by the Supreme Court in Indra Sawhney’s case that the reservationto be provided for OBC should be limited to the extent of percentage insuch a way that totality is less than 50% and the reservation provided forSC and ST must be proportionate to their population.

4.26 All these confounding confusions could have been avoided by grantingreservation benefits to SC,ST and OBC proportionate to their respectivepopulation according to the apparent tenor of Art.16(4) of theConstitution.


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5. QUALITATIVE EXCLUSION OF CREAMY LAYER –BASELESS

5.1 The vision of the nine-Judges, constituting the larger Bench in IndraSawhney vs. Union of India [ 1992 SCC (L&S) Supp 1 = 1992 Supp (3)SCC 217] falling on “creamy layer” may now be examined by anophthalmologist in the light thrown by ground realities and from theConstitutional angle.

5.2 The one and only challenge posed before the Supreme Court in IndraSahwney’s case was as to whether the 27% reservation sought to bemade by the Official Memorandum issued by the Government of Indiabased upon the report of Mandal Commission was valid? This sort of achallenge – it is no secret – was made by anti-reservationist groups.

5.3 The OBC never made any sort of an argument or placed any sort ofpleading before the Supreme Court that the higher-ups in the top mostlayer from among OBC snatched away the entirety of the benefit ofreservation to themselves to the exclusion of other OBC at the bottomlayer. It is only those anti-reservationist groups shed crocodile tears infavour of the OBC at the bottom level raised such an argument. Whatcould have been the purport or intent of such groups in making such anargument is rather very obvious and not far to seek. Their clear intentionrather appears to be that in case they are not able to succeed in thechallenge thrown by them with regard to the 27% reservation made toOBC by the O.M. issued by the Government of India, the eligible OBCshall be thrown out of enjoying the benefit of reservation by theapplication of the concept of creamy layer.

5.4 It is rather a puzzling wonder that the concept of creamy layer has beenraised, not by the OBC but on the other hand by such groups which aredead against reservation. If really the OBC at the bottom level happenedto be affected by 27% reservation sought to be implemented by the OM,certainly, they would not remained a silent spectators. The fact that theyremained silent without even raising the little finger is proof positive todemonstrate that they were in the least to be affected by suchimplementation. It is startling as to how in such a situation the SupremeCourt happened to consider such an issue.

5.5 Neither Article 15(4) nor Article 16(4) speaks of matters relating tocreamy layer. Article 15(4) simply states that “Nothing in this Article or inclause (2) of Article 29 shall prevent the State from making any specialprovision for the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castes and theScheduled Tribes”, whereas Article 16(4) speaks of reservation in favour


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of backward classes in the services of the State in case of inadequaterepresentation and nothing further. Article 15(4) does not provide thereservation benefit to all backward classes. It does provide reservationbenefit only to such of those backward classes who are socially andeducationally backward. It does not provide any such sort of restrictionor limitation in such a provision in favour of Scheduled Castes andScheduled Tribes. Article 15(4) and 16(4), though finding their place inPart III – Fundamental rights, were declared to be not fundamental rights,by the Apex court but only enabling rights. That means, no onebelonging to OBC, SC and ST can invoke the writ jurisdiction of superiorcourts of jurisdiction – High Court and Supreme Court – for theenforcement of the rights. Only, if the State desires to providereservation either for appointments in the services of the State oradmission in educational institution only to a certain section of the peoplebelonging to OBC, SC & ST, provided they all within the eligible groupswho satisfy the criteria evolved for such a classification. The competentauthority to decide creamy layer in the very nature of things cannot beanyone other than the state by giving a direction to the Backward ClassCommission to investigate and collect relevant and requisite data, makeproper inquiry and submit a report to the Government so as to enable itto take a decision. The decision so taken is, of course amenable to writjurisdiction of Superior Courts, such a challenge may yield dividend, onlyif the decision taken by the Government on such aspect of the matter isopposed to all cannons of reasonableness, fairness, justice, equity andgood conscience or otherwise such an attempt will culminate in failure ofsuccess. The creamy layer sought to be invoked in reservation matterssuo motu by the Supreme Court is beyond the scope of their authority. Astand may be taken that the Supreme Court has plenary power undersection 142 of the Constitution to do anything they want by overriding theprovisions of Law for doing complete justice in a suitable and appropriateoccasion. By the invocation of such a plenary power, which the SupremeCourt assumed to itself under the façade of interpretation though theexpress and explicit language of that article does not confer or connoteany such power. The invocation of such a power, the Supreme Courtarrogates itself to the position of a super Legislature or Parliament. Ifsuch a thing is allowed to happen often and on without any sort ofrestriction, it is very likely the country can be ruled by the Supreme Courtby exercising the plenary power under section 142, throwing all theexisting laws in the country in the Bay of Bengal, thereby pointing out,one of the pillars of democracy – Supreme Court – getting elevated tothe status of an autocrat, the need of the hour is that steps need to betaken for the survival and protection of democracy in the country.

5.6 In Article 16(4) the expression “backward class” alone is referred to andnot Scheduled Castes and Scheduled Tribes. However, it has beeninterpreted by the Supreme Court that the expression “backward class”


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found therein includes backward classes, most backward classes,Scheduled Castes and Scheduled Tribes. The one and only restrictionimposed therein is inadequacy of representation to all those classes inthe services of the State.

5.7 If the founding fathers of the Constitution had originally intended toprovide for creamy layer by the insertion of a clause in the said Article,they could have incorporated it, when especially the said Article wasdebated in the Constituent Assembly elaborately.

5.8 Pertinent it is also to note that though Article 15(4) had been insertedsubsequently in the year 1951, yet, it has to be remembered that at thetime of its insertion, Dr.B.R.Ambedkar, the Law Minister and somemembers of the Constituent Assembly were members of the Parliament.

5.9 The function of the judiciary is to adjudicate and not to legislate. Theaddition of the concept of creamy layer in either Article 15(4) or Article16(4) by the Supreme Court can, by no stretch of imagination, beconstrued as an act of adjudication but that will tantamount to an act oflegislation, that too not an ordinary legislation, but a constitutionalamendment. The Supreme Court itself laid down the basic structuretheory in and by which constitutional amendment is impermissible incase of loss constitutionally identity by the structural changes if made byway of amendment. Having said so, such a constitutional amendment iseven not permissible by the Constituent Assembly of the Parliament. Byachieving such a feat, the Supreme Court assumed the position of a“super Legislature” why, say, a “super-Constituent Assembly.”

5.10 Leave alone the legal or constitutional basis for incorporation of creamylayer in those Articles, what was the quantifiable data as available to theSupreme Court for the incorporation of creamy layer in those Articles?No factual based data much less any quantifiable data has been placedbefore the Supreme Court to incorporate the concept of creamy layer.

5.11 The puzzling factor is that even in the judgment of the nine-JudgesBench of the Supreme Court in Indra Sawhney case, certain portions ofthe Mandal report has been extracted, which, in fact, point out in nouncertain terms that the OBC entered into service of the CentralGovernment right from 1950 to the time of Mandal report only to anextent of about 14%, leaving a balance of 13% (27% minus 14% = 13%)yet to be filled up even after the elapse of nearly 42 years. Such beingthe case, one is at a loss to understand as to where is the necessity forthe application of creamy layer to weed out the higher-ups in the OBCwho were said to be enjoying the benefit of reservation exclusively tothemselves leaving nothing to the OBC at the bottom level. The furtherastonishing fact is that in the Central services, there was no reservation


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at all right from 1950 till upto the judgment by the Supreme Court in IndraSawhney case in the year 1992. In such state of affairs, how on earththe Supreme Court had come to the conclusion that the top notches inthe OBC had been enjoying the benefit of reservation to themselves tothe utter exclusion of other OBC at the bottom level impelling theSupreme Court to resort to incorporation of creamy layer concept indetermination of the OBC. If the top notches from among OBCsnatched away the entirety of reservations to themselves to the exclusionof the other OBC – as a matter of fact – one has to accept and welcomethe application of creamy layer in the matter of recruitment in theservices of the State. The question is, whether such a thing did happenin reality?

5.12 The information disclosed before the Members of the Parliament on18.11.2010 in answer to a Rajya Sabha Question regardingrepresentation of SC/ST/OBC in employment under the Government ofIndia, contains the following data:

Number of Personnel in service of Government of IndiaSC ST OBCGroup Total

No. ofEmployees Number % Number % Number %

A 97951 12281 12.5 4754 4.9 5331 5.4

B 140223 20884 14.9 8004 5.7 5562 4.0

C 1822326 286573 15.7 127871 7.0 147327 8.1

D(ExcludingSweepers)

706170 138466 19.6 48728 6.9 35468 5.0

Sweepers 77295 39774 51.5 4621 6.0 2548 3.3

Total(ExcludingSweepers)

2766670 458204 16.56 189357 6.84 193688 7.00

Total(IncludingSweepers)

2843965 497978 17,51 193978 6.82 196236 6.90

Source: Ministry of Personnel, Public Grievances and Pensions, Government of India.

The data points out that the OBC are enjoying the benefit of reservationonly to an extent of 6% to 7% although the reservation available is 27%.In the absence of data pointing out that the OBC falling within the creamylayer snatched away the entirety of the benefits to OBC leaving nothingto the lower layer of such classes, the need for qualitative exclusionrelying on fiction drafted by experts is purely biased. The reason for suchstate of affairs cannot be anyone other than the application of theconcept of creamy layer in the matter of appointment in Central services,thereby making ineligible all the eligible candidates from among the OBCthrowing all such job opportunities to the hierarchy of higher castespeople.


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5.13 Leave alone the creamy layer as having been introduced by the judiciary,the Central Government on their part introduced the policy ofLiberalisation, Privatisation and Globalisation [LPG] benefiting to thelargest extent possible to the hierarchy of higher castes as gettingreflected herein below.

5.14 The policy of reservation to backward classes of citizens, including SCand ST, has reached more number of beneficiaries in Tamil Nadu, whencompared to other parts of the country. The number of governmenteducational institutions and government/ public sector establishment hasincreased in size creating more job opportunities. The population ofhierarchy of higher castes, who were dominating representation in theservices - compared to their population - in government educationalinstitutions and government establishments prior to 1990’s, could notachieve, as they were previously represented in such servicesconsequent on implementation of the reservation policy. The increase inthe size of government educational institutions and governmentestablishment is benefiting the backward classes of citizens. Taking intoconsideration the large population of (i.e., 88% of the total population)backward classes of citizens, the employment provided throughgovernment establishments is very minimal to the extent of 2 – 3% oftotal population. Naturally only a very few number out of the bulk ofbackward classes have had opportunity to avail governmentemployment. Employment opportunity generated through governmentestablishment could have only a very little impact on their socialupliftment as a group.

5.15 The LPG policy being followed since 1990s came as a protector ofhierarchy of higher castes. The preference and focus of higher casteshave changed from the public entities to global and private entities.Migration of hierarchy of higher caste to the private institutions /establishments has been witnessed from the data provided by theGovernment schools and recruitments for the public services under theState. Opening up of flood gates for investment in various industries toprivate sector / foreign investors favoured generation of moreemployment with better payment and increase in number of seats ineducational institutions. For instance, the data from Employees ProvidentFund Organisation shows, in Tamil Nadu, the number of private sectoremployees are 7 to 8 times more than those employed in public serviceunder the State. It is alleged that since the private sector or foreigninvestors were not compelled to follow the reservation, major share of theseats or employments in private sector go to the hierarchy of highercastes. Truly, the era of liberalisation favours extension of variousinfrastructure facilities, financial incentives and tax concessions forpromotion of industries through private and foreign investors. Such


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benefits were key factors for the profitability of the industries. Theprofitable operation of industries favoured increase of income ofinvestors and enriched wages of the employees. It is also alleged thatthe social costs incurred in favour of private and foreign investors are notbeing recovered in full to benefit all segments of social groups equally.

5.16 There is absolute need for the government imposing LPG policy to knowwhether the benefits of such policy have reached all the social segmentsof the population equitably. Every private organisation / establishmentshould be made to disclose their performance for attainment of socialjustice, as a Social Responsibility Statement, by disclosing in public thenumber of employees in different ranges of pay and their social status,such as SC/ST/BC/MBC/OBC/OC; and also the top 10 castes havingmore representation in their organisation/establishment.

5.17 In Indra Sawhney, the nine-Judges Bench of the Supreme Court raisedthe question as to whether “backward classes can be identified only andexclusively with reference to economic criterion?” The majority decisionof the larger Bench provided an answer to the said question in thefollowing terms which gets reflected in para 798 @ page 432:-

“It follows from the discussion under Question No.3 that a backward classcannot be determined only and exclusively with reference to economiccriterion. It may be a consideration or basis along with and in addition tosocial backwardness, but it can never be the sole criterion. This is the viewuniformly taken by this Court and we respectfully agree with the same.”

Having taken such a uniform stand for quite long by the Supreme Court -for the consideration of the question of certain castes and communitiesas backward classes whether it is in tune with the principle ofreasonableness, fairness, justice, equity and good conscience for theApex body of the judiciary to apply the one and only criterion of economiccriterion in the shape of creamy layer to de-list a caste or communityincluded in the backward classes after taking into consideration not onlysocial and educational backwardness but also economic backwardness.Such an act will tantamount to, usurping the benefits granted under thefacade of granting a concession but not actually granting, but takingaway what was granted to the community in whose favour suchconcession was granted. It is nothing but duping, doping and making thepitiable backward classes of citizens live on promises of grantingconcession for their advancement. Approbation and reprobation of thesame act would tantamount to producing a NIL effect of the act sought tobe done and the application of the economic criterion as stated above forthe advancement of the backward classes in the form and shape ofcreamy layer would be definitely besides justice.


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5.18 Supreme Court postulates that economic criteria alone cannot serve as abasis to include a community or class as Backward Class. In such aneventuality, the converse also must be true, i.e. it is not possible toexclude a segment within the Backward Class using economic / incomecriteria (creamy layer) though socially and educationally backward.

5.19 SWOT gird depicted below would point out the inherent weaknesses ofimplementation of creamy layer in not giving any succour and benefitsaccruing from reservation to the backward classes of citizens, but on thecontrary works to their detriment.

SWOT Analysis of the idea of Qualitative Exclusion of Creamy Layerimplemented by Union Government and States / Union Territories

Strength Opportunity• Supreme Court judgements.• Presence of hierarchy of higher castes at

the planning level at Government in largenumbers.

• LPG policy.• Growth of private sector.• Growth of global opportunities.• Globally SC/ST/Dalits only are imagined

as socially backward in Indian society;SEBCs have been darkened to outsideworld.

Weakness Threats• No provision is traceable to the

Constitution for imposition of creamylayer.

• As far as SC/ST is concerned exclusion isexpressly provided under the Constitution,but not for SEBC.

• Law made by judiciary applied byExecutive to favour higher castes.

• Political dominance of hierarchy of highercastes in northern and central parts ofIndia.

• Many States are not interested in providingreservation for BC.

• Lack of proportional reservation to BCsimilar to that of SC/ST.

• Constitution aims to secure socialistic andsecular society, where in all social groupsare to be considered for inclusive growth.

• Dichotomy regarding application ofeconomic criteria; that is for exclusion itcan be applied, but for inclusion it cannotbe applied.

• No quantifiable data to prove that advancedsections within each caste of SEBC haveavailed entirety of the reserved seats, suchthat there is nothing available for weakersections within such castes of the backwardclasses.

• Due consideration and importance, as hadbeen given to SC/ST/Muslim minorities inthe analysis and study of the participationand performance of different social groupsunder various schemes and plans, has notbeen given by Union Government.

• Central Government does not considercaste is attached to birth, as the OBCcertificate to creamy layer is denied,despite social educational backwardness.

• Criteria for creamy layer exclusionconsider Indian States on equal footing; butdistinct historical factors, differences insocial, educational and economicdevelopment prevailing in different Stateshave not been adequately considered.

• Qualitative exclusion is not an affirmativetool to bring up weaker among backward.


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6. QUANTITATIVE RESTRICTION,WHETHER QUINTESSENTIAL?

6.1 The view of M.R.Balaji vs. State of Mysore [AIR 1963 SC 649] that thereservation in all situations and eventualities should not exceed 50% or –to put it in a different way – should be less than 50% as stated by theSupreme Court is not the one and only voice but there are as manyvoices as there were / are Judges – occupying the corridors of judicialpower in the superior courts of jurisdiction and the voices so expressedare not in conformity or uniformity in the lone and sole voice of Balaji as ifmade in wilderness, not producing the echoing effect of ringing orlingering effects in the minds of the legal circles, leading to its effacementaltogether, in the sense of the same not being the “strict” or “mandatory”rule, not to be violated in all eventualities and circumstances.

6.2 This aspect of the matter has been dealt with vividly and elaborately byPandian,J. in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217]which gets reflected as follows:-

“184.The question of percentage of reservation was examined in Thomas[State of Kerala v. N.M.Thomas - (1976) 2 SCC 310 @ 387-388, para 191]wherein Fazal Ali J., not agreeing with Balaji has observed thus:-

“….. clause (4) of Article 16 does not fix any limit on the power of the Governmentto make reservation. Since clause (4) is a part of Article 16 of the Constitution itis manifest that the State cannot be allowed to indulge in excessive reservationso as to defeat the policy contained in Article 16(1). As to what would be asuitable reservation within permissible limits will depend upon the facts andcircumstances of each case and no hard and fast rule can be laid down, nor canthis matter be reduced to a mathematical formula so as to be adhered to in allcases. Decided cases of this Court have no doubt laid down that the percentageof reservation should not exceed 50%. As I read the authorities, this is, however,a rule of caution and does not exhaust all categories. Suppose for instance, aState has a large number of backward classes of citizens which constitute 80% ofthe population and the Government, in order to give them proper representation,reserves 80% of the jobs for them, can it be said that the percentage ofreservation is bad and violates the permissible limits of clause (4) of Article 16?The answer must necessarily be in the negative. The dominant object of thisprovision is to take steps to make inadequate representation adequate.”

185.Krishna Iyer,J., in the same decision has agreed with the above view ofFazal Ali,J, stating that “………the arithmetical limit of 50% in any one yearset by some earlier rulings cannot perhaps be pressed too far.”(SCC p.371,para 143).

186.Though Mathew, J, did not specifically deal with this maximum limit ofreservation, nevertheless the tenor of his judgment indicates that he did notfavour 50% rule.


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187.Chinnappa Reddy, J., in Karamchari [Akhil Bharatiya Soshit KaramchariSangh v. Union of India – (1981) 1 SCC 246] has expressed his view on theceiling of reservation as follows :-

“…….There is no fixed ceiling to reservation or preferential treatment infavour of the Scheduled Castes and Scheduled Tribes though generallyreservation may not be far in excess of fifty per cent. There is no rigidityabout the fifty per cent rule which is only a convenient guideline laid down byJudges. Every case must be decided with reference to the present practicalresults yielded by the application of the particular rule of preferentialtreatment and not with reference to hypothetical results which the applicationof the rule may yield in the future. Judged in the light of this discussion I amunable to find anything illegal or unconstitutional in any one of the impugnedorders and circulars……”

188.Again in Vasanth Kumar [K.C.Vasanth Kumar v. State of Karnataka –1985 Supp SCC 714] Chinnappa Reddy,J reiterates his view taken inKaramchari in the following words : (SCC p.752, para 58)

“ We must repeat here, what we have said earlier, that there is noscientific statistical data or evidence of expert administrators who have madeany study of the problem to support the opinion that reservation in excess of50 per cent may impair efficiency.”

189.x x x x

190.It should not be out of place to recall the observation of Hegde, J in HiraLal [State of Punjab v. Hira Lal (1970) 3 SCC 567] observing: (SCC p.572,para 8) “The extent of reservation to be made is primarily a matter for the State todecide. By this we do not mean to say that the decision of the State is notopen to judicial review. ….The length of the leap to be provided dependsupon the gap to be covered.” (emphasis supplied)

191.Desai, J in Vasanth Kumar expressed his view that in dealing with thequestion of reservation in favour of Scheduled Castes, Scheduled Tribes aswell as other SEBCs ‘Judiciary retained its traditional blindfold on its eyesand thereby ignored perceived realities.’ (SCC p.729, para 20)”

6.3 Sawant, J. in the same case expressed his views in para 518 (page 256)which reads as follows:-

“ 518.To summarise, the question may be answered thus. There is no legalinfirmity in keeping the reservations under clause (4) alone or under clause(4) and clause (1) of Article 16 together, exceeding 50%. However, validityof the extent of excess of reservations over 50% would depend upon thefacts and circumstances of each case including the field in which and thegrade or level of administration for which the reservation is kept. Although,further, legally and theoretically the excess of reservations over 50% may bejustified, it would ordinarily be wise and nothing much would be lost, if the


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intentions of the Framers of the Constitution and the observations ofDr.Ambedkar, on the subject in particular, are kept in mind. The reservationsshould further be kept category and gradewise at appropriate percentagesand for practical purposes the extent of reservations should be calculatedcategory and gradewise.”

6.4 It is worthwhile to extract what has been laid down in Indra Sawhney asrespects the extent of reservation which reflects as below:- [para 810p.439]

“810. While 50% shall be the rule, it is necessary not to put out ofconsideration certain extraordinary situations inherent in the great diversity ofthis country and the people. It might happen that in farflung and remoteareas the population inhabiting those areas might, on account of their beingout of the mainstream of national life and in view of conditions peculiar toand characteristical to them, need to be treated in a different way, somerelaxation in this strict rule may become imperative. In doing so, extremecaution is to be exercised and a special case made out.”

6.5 In such a backdrop and setting of the hues of view of the Judges of theSupreme Court, the views as expressed by the Andhra Pradesh HighCourt in B.Archana Reddy v. State of Andhra Pradesh [2005 (6) ALD582] that the quantum of reservation cannot at all exceed 50% as if it is amandatory or strict rule to be observed in all eventualities andcircumstances is not in conformity with the law laid down by the SupremeCourt. It is a different matter to say that there are no circumstanceswhatever warranting reservation in excess of 50% and to say – that 50%reservation is the rule in all eventualities and circumstances – as hadbeen said by the Andhra Pradesh High Court – is nothing but amisconception and misunderstanding of a plain rule of reservationevolved by the Supreme Court.

6.6 Article 16(4), in its present form, forms part and parcel of the originalConstitution as drafted by the founding fathers, provides for reservationof appointments or posts in favour of any backward class of citizenswhich in the opinion of the State is not adequately represented in theservices under the State. “State” as referred to therein includes theGovernment and the Parliament of India and the Government and theLegislatures of each of the States and all local and other authoritieswithin the territory of India or under the control of the Government ofIndia as has been stated in Article 12 of the Constitution. As such, it iscrystal clear that it is legally feasible or possible by the Government ofIndia at the Centre as well as the States and other authorities mentionedtherein to make laws for the reservation of appointments or posts infavour of any backward class of citizens which is not adequatelyrepresented in the services under the State. A cursory perusal of thesaid clause does not indicate the prescription of the extent of reservationto be provided for in favour of all the backward classes in the services


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under the State. The one and only restriction, if at all, which can bedeciphered from the language used therein cannot be anyone other thanthe one relatable to the inadequacy of representation in the services.The words or expressions viz., “not adequately represented in theservices under the State” has to be ascribed the meaning. The meaningof the word “adequate” as has been given in The Concise OxfordDictionary – The New Edition for 1990s – at page 14, runs as under :-

“adequate. adj. 1.sufficient, satisfactory (often with the implication ofbeing barely so). 2.(foll. by to) proportionate 3. barely sufficient.”

Such being the case, it goes without saying that it is permissible for theState for making any provision for the reservation of appointments orposts in favour of backward classes of citizens “in proportion” to theirpopulation.

6.7 The Supreme Court in many a decision held that the expression“backward class” as referred to in Clause (4) of Article 16 includessocially and educationally backward class, most backward class,Scheduled Castes and Scheduled Tribes. Pertinent it is to refer to at thisjuncture that there is no other specific provision traceable to theConstitution providing for reservation in a particular percentage toScheduled Castes and Scheduled Tribes. But right from day one of thecommencement of the Constitution, reservation for Scheduled Castesand Scheduled Tribes had been made by the State either forappointments or posts in the services of the State or for admission ineducational institutions proportionate to their population only underClause (4) of Article 16 of the Constitution. This sort of a reservation hasgot the seal of approval of the Supreme Court without there being anydemur or whisper all these years.

6.8 Axiomatic truth, it is, that the Central Government – right from the date ofcommencement of the Constitution in the year 1950 till up to 1992, theyear in which the Supreme Court delivered its judgment in IndraSawhney – did not at all make any provision for making reservation infavour of any backward class either in the appointment or posts in theCentral services or for admission in their favour in educational institutionsexcept providing for reservation for Scheduled Castes and ScheduledTribes both in the services of the State as well as in educationalinstitutions, proportionate to their population.

6.9 Article 15(4) which has been inserted by the Constitution (FirstAmendment) Act, 1951, prescribes that “Nothing in this article or inclause (2) of article 29 shall prevent the State from making any specialprovision for the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castes and Scheduled


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Tribes.” Of course, nothing is traceable from the said Article regardingthe extent of reservation to be provided to socially and educationallybackward classes of citizens or to the Scheduled Castes and ScheduledTribes for admission in educational institutions. The said Clause usesthe expression “special provision” can be made in favour of “socially andeducationally backward classes of citizens or for the Scheduled Castesand Scheduled Tribes.” This sort of a provision had been utilized by theState for making reservation in favour of socially and educationallybackward classes of citizens and Scheduled Castes and ScheduledTribes for admission in educational institutions.

6.10 Article 15(5) provides that “Nothing in this article or in sub-clause (g) ofclause (1) of article 19 shall prevent the State from making any specialprovision, by law, for the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castes and ScheduledTribes in so far as such special provisions relate to their admission toeducational institutions including private educational institutions, whetheraided or unaided by the State, other than the minority educationalinstitutions referred to in clause (1) of article 30.” This clause wasinserted by the Constitution (Ninety-third Amendment) Act, 2005 w.e.f.20/1/2006. This clause (5) is more or less akin to clause (4) of Article 15– the difference being that it specifically provides that the State can makespecial provision by law in favour of socially and educationally backwardclasses of persons and Scheduled Castes and Scheduled Tribes in sofar as the special provision relating to their admission in educationalinstitutions including private educational institutions, whether aided orunaided by the State, other than the minority educational institutionsreferred to in clause (1) of article 30.

6.11 A careful perusal of clauses (4) and (5) of Article 15 reveals that thespecial provision contemplated in those clauses is in the matter ofadmission to educational institutions of socially and educationallybackward classes of citizens or of Scheduled Castes and ScheduledTribes. Such sort of a restriction or limitation has been made only inrespect of backward classes and not Scheduled Castes and ScheduledTribes. It is not as if special provision can be made in the matter ofadmission to educational institutions in favour of all backward classes butonly in respect of such of those backward classes which are socially andeducationally backward ; but it is not so in the case of Scheduled Castesand Scheduled Tribes. There are no restrictions whatever in the matterof their admission to educational institutions. To put it otherwise, all theScheduled Castes and Scheduled Tribes can be favoured with admissionin educational institutions in proportion to their population without anyrestrictions whatsoever; but in the case of backward classes, reservationto be made in their favour relatable to admission to educationalinstitutions is only permissible in proportion to such of those backward


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classes which are socially and educationally backward and not inproportion to the entirety of the backward classes.

6.12 A combined reading of clauses (4) and (5) of Article 15 and clause (4) ofArticle 16 demonstrates that the reservation for Scheduled Castes andScheduled Tribes can be made in the matter of appointment or posts inservices under the State as well as admission to educational institutionsproportionate to their population whereas in the case of backwardclasses, reservation can be made in favour of such of those backwardclasses which are socially and educationally backward either in thematter of admission to educational institutions or in the matter ofappointment or posts in the services under the State proportionate to thebackward classes which are socially and educationally backward and nototherwise.

6.13 Article 330 speaks of reservation of seats for Scheduled Castes andScheduled Tribes in the House of the People while Article 332 speaks ofreservation of seats for Scheduled Castes and Scheduled Tribes in theLegislative Assemblies of the State. These Articles speak of reservationof seats in the House of People as well as the Legislative Assemblies ofthe States in favour of Scheduled Castes and Scheduled Tribesproportionate to their population. Article 16(4) makes a provision forreservation of appointments or posts in favour of any backward classesof citizens which, in the opinion of the State, is not adequatelyrepresented in the services under the State. [emphasis supplied].Article 16(4) emphasizes “not adequately represented” while Articles 330and 332 use the expression “proportion to the …………….population”.The expression “not adequately represented” put in the negative formcannot mean anyone other than to mean “adequate representation”.Many languages in the world inclusive of the English language except afew languages like the French have different expressions to mean oneand the same thing. The meaning of the expression “adequaterepresentation” cannot at all be stated to be different in any way from themeaning “proportionate representation” if one refers to the meaning ofboth these expressions in the English Dictionaries. The spokesman ofthe majority judgment in Indra Sawhney, B.P.Jeevan Reddy, J. referredto this aspect of the matter in paragraph 807 at page 438 which reflectsas under:-

“807. We must, however, point out that clause (4) speaks of adequaterepresentation and not proportionate representation. Adequaterepresentation cannot be read as proportionate representation. Principle ofproportionate representation is accepted only in Articles 330 and 332 of theConstitution and that too for a limited period. These articles speak ofreservation of seats in Lok Sabha and the State legislatures in favour ofScheduled Tribes and Scheduled Castes proportionate to their population,but they are only temporary and special provisions. It is therefore not


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possible to accept the theory of proportionate representation though theproportion of population of backward classes to the total population wouldcertainly be relevant. ……….”

The analogy as made by B.P.Jeevan Reddy, J. between “adequaterepresentation” and “proportionate representation” by making referenceto Article 16(4) and Articles 330 and 332, it is respectfully submitted,rather appears to be far from correct. His Lordship did not make anyeffort to find out the true meaning of the expressions “adequaterepresentation” and “proportionate representation”. If a little bit of efforthad been made towards that direction, there could have been noproblem in finding out the real meaning of those expressions. HisLordship simply speaks of by saying “adequate representation cannot beread as proportionate representation.” The principle of proportionaterepresentation is accepted only in Articles 330 and 332 of theConstitution in making reservation of seats in Lok Sabha and StateLegislatures in favour of Scheduled Castes and Scheduled Tribesproportion to their population. If this sort of an analogy as made by HisLordship is correct, then, how on earth, the reservation for ScheduledCastes and Scheduled Tribes in the matter of appointment or posts in theservices of the State under Article 16(4) can ever be made proportionateto their population about which the Supreme Court did never raise itslittle finger at any point of time. The adage “What is sauce for the gooseis sauce for the gander too” has been omitted to be taken into account bythe Supreme Court in the matter of interpretation of clause (4) of Article16 while making reservation in favour of backward classes of citizens aswell as Scheduled Castes and Scheduled Tribes in the matter ofappointment or posts in the services under the State. This apart, themillion Dollar question that arises for consideration is, what is meant by“adequacy of representation” in the matter of appointments or posts inthe services under the State in favour of Other Backward Classes whenespecially the rigidity of the rule of reservation to be always less than50% as propounded in M.R.Balaji had been thrown to winds by relaxingsuch a rule in subsequent decisions of the Supreme Court that thereservation can in extraordinary circumstances go far beyond 50%, whenthere is justification by way of quantifiable data available for suchexcessive reservation to be made therefor?

6.14 Say for instance, if the quantifiable data collected projects the figure of80% of Backward Classes out of the total population, whether it is, insuch a situation or circumstance, permissible to fix the reservation pointin their favour at 80% which is proportionate to their population or at anyother level of percentage between 50% and 80% if adequaterepresentation is to be provided for them? If reservation is made lessthan 80% or beyond 80%, it may not be in consonance with the synonymof “adequate representation”.


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6.15 In Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1], “OtherBackward Classes” in Section 2(g) of the Act 5 of 2007 had been clarifiedas follows :-

“If the determination of several backward classes by the Central Governmentis with reference to a ‘caste’ it shall exclude the creamy layer among suchcastes.” [para 669]

Such a holding of the Supreme Court, it is respectfully submitted, is farfrom correct. ‘Caste’ is peculiar to India and caste is practised only in theHindu religion. At the global level, caste is not at all practised in anyother religion other than the Hindu religion. The holding of the SupremeCourt as respects the concept of exclusion of creamy layer from ‘OtherBackward Classes’ in the process of determination of backward classesby the Central Government is with reference to a caste, means, thecreamy layer will not at all be applicable for the determination of otherbackward classes relatable to Christians and Muslims. This apart, theincorporation of creamy layer by the Supreme Court in either of theArticles 15(4) or 16(4) is not relatable to an adjudicatory act but referableto a legislative feat, why not say, it is a feat to be resorted to by aConstituent Assembly. Such being the case, it is not far wrong to saythat the Supreme Court acted, in the incorporation of creamy layer, as a“super legislature” or why, say, a “super Constituent Assembly” whichcannot at all happen in a democratic polity leading to autocracy.

6.16 To conclude, since Article 16(4) in its present form forming part andparcel of the original Constitution as drafted by the founding fathers, hadbeen implemented in letter and spirit by providing for reservation infavour of Scheduled Castes and Scheduled Tribes in the matter ofappointments or posts in the services under the State proportionate totheir population, it goes without saying that the reservation ofappointments or posts in the services under the State has to beproportionate to the population of such of those backward classes whichare socially and educationally backward, in view of the fact that theterminology “backward class” occurring in Art.16(4) comprises ofScheduled Castes, Scheduled Tribes and Other Backward Classes ashas been stated by the Supreme Court. Top of all, Art.16(4) is the loneand sole provision in the Constitution providing for reservation in theservices of the State both for Scheduled Castes, Scheduled Tribes onthe one hand and the Other Backward Classes on the other hand.


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7. BACKWARD CLASSES WITHOUT UNTOUCHABILITYWERE KEPT IN DARKNESS BY FOUNDING FATHERSOF INDEPENDENT INDIA

7.1 Ambedkar enrolled himself as an advocate in the Bombay High Court.He started legal practice from July, 1924.

7.2 He initially met with resistance by caste Hindus. His vast experience andlegal acumen helped him to make steady progress. He became apopular lawyer. He amassed wealth.

7.3 His unique quality was his concern for the downtrodden. This sort of aquality made him stand apart from others.

7.4 He founded an Association for the welfare of the “outcastes”. Thisassociation was known as ‘BAHISHKRIT HITKARANI SABHA’. Themain object of the Association was to eradicate the caste system fromthe Hindu society. Ambedkar through his Association toiled for theupliftment of the downtrodden. Consequently, the downtrodden sectionstarted adoring him. They began calling him ‘BABA SAHEB’.

7.5 A Conference of the depressed classes was convened in March 1927 atMAHAD. This Conference passed a resolution to start a movement tothrow open public places of utility to all, irrespective of caste and creed.

7.6 There was a public tank at COLOBA. It was known as CHOWDERTANK. There was a distressing practice of prohibiting the ‘untouchables’to draw or drink water from the tank. That tank was chosen as a place ofprotest by Ambedkar. Several people partook along with Ambedkar inthe protest. This was resented by the caste Hindus of all denominations.The Satyagrahis, in turn, calmly led by Ambedkar gave vent to theirprotest by burning copies of MANUSMRITI, the Book of Hindu Codebefore a huge gathering. This matter had been taken up before court.Finally, Ambedkar won.

7.7 This famous march of Ambedkar with his followers to the CHOWDERTANK came to be known as “MAHAD MARCH”.

7.8 In 1928, Ambedkar boycotted the boycott of SIMON COMMISSION bythe Indian National Congress. The reason for this singular stand is this:He did not see eye to eye with Mahatma Gandhi and the Congress intheir approach to the problem of the depressed classes. He submitted aMemorandum on 23rd October 1928 to the Simon Commission, ignoringits boycott by the Indian National Congress.


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7.9 Ambedkar was the only Indian who attended all the three Round-TableConferences in London. He put forth forceful arguments in theseConferences for the welfare of the untouchables. Such arguments didhave profound effect on the Prime Minister of England, RamsayMacDonald.

7.10 He was, however, not satisfied with his efforts in the Round TableConferences. He went to London again on his own, towards the end ofMay 1932. He pleaded for special attention to be paid to the depressedclasses before the British Ministers.

7.11 Such special pleading yielded good results. Prime Minister RamsayMacDonald announced separate electorates for the untouchables onAugust 16, 1932. This was known as the “communal award”. MahatmaGandhi opposed it. He announced a “fast unto death” to commence fromSeptember 20, 1932 in Poona.

7.12 However, a meeting was arranged between Mahatma Gandhi andDr.Ambedkar on September 24, 1932 through the good offices of Sir TejBahadur Sapru and Sri Rajagopalachari. An agreement was signed bythem the same day. This came to be known as “POONA PACT”.

7.13 Under this Pact, separate electorates, announced earlier by RamsayMacDonald were replaced by “Joint electorates”. Besides, reservationsin the Provincial Legislative Assemblies and also in the CentralLegislative Assembly (later it became the Parliament) were made forScheduled Castes.

7.14 Thus, Poona Pact paved the way for reservation for the ScheduledCastes and Scheduled Tribes in the Parliament and the StateAssemblies by the insertion of specific provisions in the shape of Articles330 and 332 in the Constitution of India.

7.15 Dr.Ambedkar became the Chairman of the Constitution DraftingCommittee. He also became the Union Law Minister. He wanted tocodify the Hindu Law. In October 1948, the work of the drafting of theConstitution was going on. He then moved the ‘Hindu Code Bill’ in theCentral Legislative Assembly. On the contents of the Bill, there was adifference of opinion within Congress party. Consequently, thediscussion on the Bill was postponed. Again, on February 11, 1951, hemoved the Bill in an amended form. The Bill had already met withresistance in the Nehru Cabinet. The Bill came up for final reading onSeptember 18, 1951. A hectic debate ensued. Ambedkar gave thereply, meeting all objections raised by several speakers. There was nosupport of the Prime Minister, Jawaharlal Nehru, to the Hindu Code Bill.


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Consequently the Bill moved by Ambedkar was voted out. Ambedkar feltdeeply hurt. He finally tendered his resignation on September 27, 1951.

7.16 Even after quitting office, Ambedkar’s fight against social injusticecontinued and lasted till the end of his life.

7.17 It is of some significance to note here the prevalence of a factualsituation that existed in the country at the time of the constitution of theIndian Constitution. The Congress Party, consisting predominantly ofhierarchy of higher caste people boycotted the Simon Commission andthe Round Table Conferences wholesale. Dr.Ambedkar alone, taking upthe cause of Scheduled Castes and Scheduled Tribes, participated in theproceedings of Simon Commission and also the Round TableConferences. He also took some special efforts in making several tripsto London and met the Prime Minister as well as the other Ministers ofthe Cabinet for the improvement of the status of Scheduled Castes andScheduled Tribes. But there was none in the Backward Classes at therelevant time pleading their cause either before the Simon Commissionor before the Round Table Conference or before the British Governmentalthough the leaders from Justice party taking up the cause of theBackward Classes such as Raja of Panagal, Arcot RamaswamyMudaliar, C.Natesa Mudaliar, Subbarayalu Reddiyar, P.MunusamyNaidu, Thanthai Periyar E.V.Ramasamy, P.T.Rajan and B.RamachandraReddi, in Tamil Nadu fought vehemently from outside for the welfare ofthe Backward Classes. It appears that there was a little or nilrepresentation, either in the original Constituent Assembly or in theDrafting Committee, belonging to backward classes projecting thedemands for the upliftment of the backward classes either from the Stateof Tamil Nadu or from other States in the Indian context. But theagonizing factor is that Tamil Nadu was very well represented in theConstituent Assembly and in the Drafting Committee of the Constitutionby the hierarchy of higher castes such as T.T.Krishnamachary, AlladiKrishnasamy Iyer and host of others from such class. Further, themembership of the Constituent Assembly would point out in crystal clearterms that most of the members emerged from the hierarchy of highercastes and Rajpramukhs of Princely States excepting a fewrepresentatives of Muslims and Scheduled Caste. To put it in a nutshell,the representatives of the Constituent Assembly mainly consisted ofpersonnel belonging to hierarchy of higher castes, Muslims andScheduled Caste. Muslims and Scheduled Caste protected theirinterest. The hierarchy of higher castes protected and safeguarded theirinterest and leaving in the lurch the interest of millions of backwardclasses eking out their livelihood in a poverty-stricken condition, with adowngraded status without any opportunity being given in the spheres ofeducation as well as in the services under the State.


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7.18 It is worthwhile to note at this juncture as to how His Holiness Sri KanchiKamakoti Paramacharya, a venerable protector of Hinduism had a visionto save Hinduism by means of a Constitutional guarantee for its survival,flourishment, development and what not in future by inclusion of thenecessary and requisite provision in the Constitution of India. Article 26is relatable to “Freedom to manage religious affairs”. In the final form ofdrafting, Art.26 ran thus:-

“26. Freedom to manage religious affairs.—Subject to public order,morality and health, every religious denomination or any section thereof shallhave the right —

(a) to establish and maintain institutions for religious and charitablepurposes;

(b) to manage its own affairs in matters of religion;(c) to own and acquire movable and immovable property; and(d) to administer such property in accordance with law.”

Agnihotram Ramanuja Tatachariar writes under the caption “The IdealProphet Of Our Age” in the book titled “Sankara and Shanmata” [Souvenirpublished in connection with the Conference on ‘Sankara and Shanmata’held in Madras from June 1 – June 8, 1969, published by MLJ Office,Madras] as follows:-

“ If such a constitutional guarantee has been got for the independent runningof religious institutions it is in no small measure due to the initiative of HisHoliness Sri Kanchi Kamakoti Paramacharya. Originally the wording wasonly ‘Every religious denomination shall have the right, etc.” Nobody foundany discrepancy in this wording, including the august Constitution-makers.His Holiness alone saw that this was not enough. No Hindu thinks that he isfirst and foremost a Hindu. He thinks only in terms of his sub-sect, e.g., thathe is a Vaishnavaite, a Saivaite, a Smartha or a Saiva Sddhanthin and so onand so forth. Similarly no religious institution in India is running under thelabel of Hinduism. We only have Vaishnava, Saiva, Smartha, SaivaSiddhantha, etc. etc., Mutts and monastaries. So the word “religiousdenominations” could not have constitutional application to many of theseinstitutions. Therefore His Holiness felt that the wording should be changedas “every religious denomination or any section thereof shall have the right,etc.” His supreme will was ultimately carried out!

In all this His Holiness remained behind the screen. But he was the onemoving spirit and great political leaders, eminent lawyers, distinguishedparliamentarians and experienced jurists just carried out his propheticschemes for the maintenance of our religious belief and for the constitutionalsafeguard for our religious institutions. This aspect which has not seen lightof the day till now deserves to be written in letters of gold in the history of ourreligion: perhaps also of our Constitution-making.”


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The following passages also find a place under the aforesaid caption:

“In particular I want to draw the attention of the public to two great incidents,which will, ever remain fresh in my memory.

When we were meeting the Matadhipathis throughout India, myself incompany with some others had an unforgettable audience with the thenPontiff of Sri Sringeri Sarada Peetham – Poojya Sri ChandrasekharaBharati. He was a divine personality. Though head of a Mutt, he was veryoften immersed in deep meditation and came to external consciousnessonly on rare occasions. When we called at Sringeri, as though by miraclethe great Acharya came out of his deep meditation, on the very same day.He appeared before us a huge mass of divine consciousness. His very firstquestion to us was, “Where did Shri Kamakoti Acharya perform VyasaPuja?” We replied it was at Madhyarjuna (Tiruvidaimarudur). His HolinessSri Sringeri Sankaracharya made glorious references about our Holiness.We narrated to him the politico-religious situation and about our KanchiKamakoti Paramacharya’s efforts to unify all the religious institutions inorder to make a concerted move to get constitutional safeguard for ourreligion. He replied with a beaming face: Only Sri Kanchi Acharyaunderstands the atmosphere precisely and knows what is fittest to do in theprevalent atmosphere. We all depend on what he does in this regard. Weare very grateful to him. If the Hindus are able to maintain Dharma even tothis extent it is primarily due to Sri Kanchi Acharya”.

Then and there he called one Shri Sangameswara Sastri and ordered himto accompany us to other Mutts having connection with Sri Sringeri, like,Theerthamukthapuri and Hariharaur to help us in persuading thoseMatadhipathis to join hands in our Paramacharya’s schemes.

We returned back to Sringeri after visiting these Mutts and conveyed ourgratitude to His Holiness Sri Sringeri Acharya. In turn His Holiness asked usto convey his gratitude to Sri Kanchi Kamakoti Acharya for his task towardsreligious revival.”

7.19 It will be interesting to note the prophetic vision of Acharya even at thetime when the Constitution was in the anvil of being drafted that at somepoint of time political parties professing irreligiousness may come topower in some States and therefore he took effective steps to see thatreligion and religious institutions included in the State List be transferredto the Concurrent List. On this aspect, what Agnihotram RamanujaTatachariar said is relevant and the passage reads as under:-

“Another incident of great importance: Originally the Drafting Committee hadincluded religion and religious institutions in the “State List” of theConstitution. When His Holiness Sri Kanchi Acharya’s attention was drawnto this he said “Religion of India is one. It does not differ on the basis ofStates. Similarly the religious institutions also belong to the whole of India.Therefore this item should be transferred from the State List”. Though HisHoliness did not put it in words, it is possible that he also saw prophetically


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that someday even parties professing irreligiousness may come to power insome of the States in which case religious institutions would have to suffervery badly.

We conveyed the views of His Holiness to the members of ConstituentAssembly, but they were afraid to take up the issue because even thenPandit Jawaharlal Nehru was feeling that the Central list was overburdened.Anyhow as the Taposhakthi of His Holiness would have it, somebody madebold in the party meeting to refer to the amendment we wanted. And thewonder of it! No less a person than Jawaharlal Nehru himself changed hisopinion on the spur of the moment, and proposed that religious institutionsshould be included in the Concurrent list. The proposal was moved all atonce – This was a very great gain – certainly not for His Holiness, who isbeyond loss and gain, but it was a great gain for Hinduism, and for thatmatter, any religion which has a following in India.”

7.20 As such, the dignitaries of Muslims, hierarchy of higher castes andScheduled Castes had effective representation in the ConstituentAssembly as well as the Drafting Committee of the Constitution andprotected their interest in the best of fashion possible and there wasnone belonging to the backward classes even to air their voices for theprotection of their interest.


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8. JUDICIAL INTERVENTION – A STUMBLING BLOCK INCAPACITY BUILDING OF BACKWARD CLASSES ANDWEAKER SECTIONS OF THE SOCIETY

8.1 Unwarranted thinking it is, in many quarters – without there being anyexception – commitment of the Constitution is for the abolition of castesand not for its perpetuation and reservation, if continued, wouldperpetuate the existence of caste system instead of its abolition in Indiansociety.

8.2 Such thinking, if analysed on the face of the provisions adumbrated inthe Constitution will point out in no uncertain terms, is far from correct.Article 17 proclaims for the abolition of untouchability, while Article 18provides for abolition of titles. In any other part of the Constitution, nospecific provision is traceable, either for the abolition of castes or for theprohibition of the practice of castes in any manner whatever. The sordidfact is that the Constitution does recognize castes. Caste is referred to invery many provisions of the Constitution such as Articles 15(1), 15(2),15(4), 15(5), 16(2), 16(4A), 16(4B), 46, 330, 332, 335, 338-A and 341.Despite reference to caste in very many articles, caste has not at allbeen defined in the Constitution. The reason is not far to seek. Caste,God and Religion are inextricably, mingled or connected with each otherin such a way that one cannot be separated from the other in Hindusociety. In no other part of the globe, recognition and practice of castes isthere, except the fact that the people therein are divided on the basis ofrace, religion or on the basis of colour such as blacks and whites.

8.3 The expression “Scheduled Caste” is not at all a caste in the ordinarysense of the term. It is a caste created by the Constitution by Article366(24) which prescribes:

“Scheduled Castes” means such castes, races or tribes or parts or groupswithin such castes, races or tribes as are deemed under article 341 to beScheduled Castes for the purposes of this Constitution”

8.4 From the definition as above, it is crystal clear that the Schedule Caste iscreated or constituted by including in its fold certain races or tribes orparts or groups within such castes, races or tribes as are deemed underArticle 341 to be Scheduled Castes for the purposes of this Constitution.Likewise, Scheduled Tribes has been defined, under Article 366 (25)prescribes as follows:

“Scheduled Tribes” means such tribes or tribal communities or parts of orgroups within such tribes or tribal communities as are deemed under article342 to be Scheduled Tribes for the purposes of this Constitution.”


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8.5 Article 341 empowers President of India to specify the caste, races ortribes, or parts of or groups within such castes, races or tribes whichshall, for the purposes of this Constitution, be deemed to be ScheduledCastes in relation to that state or Union Territory as the case may be.The Order as made by the President is final and the same is not subjectto challenge by Superior Courts of jurisdiction. Once the Notification isissued, even the President has no power of exclusion or inclusion fromthe lists of Scheduled castes so notified. However, the power of inclusionor exclusion to the list of Scheduled castes so notified, inheres in favourof the Parliament as specified in sub-clause 2 of Article 341. Itprescribes:

“Parliament may by law include in or exclude from the list of ScheduledCastes specified in a notification issued under clause (1) any caste, race ortribe or part of or group within any caste, race or tribe, but save as aforesaida notification issued under the said clause shall not be varied by anysubsequent notification.”

Similar provisions are traceable to Scheduled Tribes under Article 342.

8.6 The indication in Article 366(24) that the Scheduled Castes as had beenstated or created by way of deeming fiction for the purposes of theConstitution such as, reservation of seats for Scheduled Castes andScheduled Tribes in the House of People under Article 330, reservationof seats for Scheduled Castes and Scheduled Tribes in the LegislativeAssemblies of the State under Article 332, for consideration of claims ofScheduled Castes and Scheduled Tribes to services and posts underArticle 335, for making special provision for the advancement of anysocial and educational backward classes of citizens or for the ScheduledCastes or the Scheduled Tribes in so far as such special provisionsrelated to their admission to educational institutions including Privateeducational institutions, whether aided or unaided by the State, otherthan the Minority educational institutions referred to in clause(1) of Article30 under Article 15(5), for making any provision for the reservation ofappointments or post in favour of any Backward Classes of citizenswhich in the opinion of the state is not adequately represented in theservices under the State under clause (4) of Article 16, for making anyprovisions for reservation in matters of promotion, with a consequentialseniority to any class or classes of post in the services under the State infavour of the Scheduled Castes and the Scheduled Tribes which, in theopinion of the State are not adequately represented in the services underthe State under clause (4A) of Article 16, for considering any unfilledvacancies of a year which are reserved for being filled up in that year inaccordance with any provision for reservation made under clause (4) asa separate clause of vacancies to be filled up in any succeeding year oryears and such clause of vacancies shall not be considered together with


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the vacancies of the year in which they are being filled up for determiningthe ceiling of 50% of reservation of total number of vacancies in that yearunder clause (4B) of Article 16.

8.7 The Government of India during British Regime was following since1925, reservation for appointments in Government service for theredress of communal inequalities. The policy so adopted failed to securedue share of appointments to Muslims and consequently it wascontented that this sort of a position cannot at all be a remedied unless afixed percentage of vacancies is reserved for Muslims and otherMinorities. Consequently it was decided that 25% of all vacancies to befilled by direct recruitment of Indians, will be reserved for Muslims and 8-1/3% for other minority communities. In order to secure fairrepresentation for the depressed classes, duly qualified members ofthose classes were nominated to a public service; even thoughrecruitment to that service was being made by competition. This sort ofan information, we are able to gather from Appendix XXIII – Governmentof India Resolution of 1934 on Communal Representation of Minorities inthe services, Dated 4th July 1934.

8.8 The depressed classes were described in the Government of India Act1935, (for short “Act 1935”) as “Scheduled Castes”. The Government ofIndia, pursuant to the undertaking given in the Central LegislativeAssembly in 1942, reviewed the policy of reservation, relatable to thedepressed classes, described as “Scheduled Castes” in Act 1935.

8.9 The Government of India thought that, in the then state of generaleducation among these classes, they did not consider that any usefulpurpose would be served by reserving for them a definite percentage ofvacancies. In order, however, to secure fair representation forScheduled Castes, they directed that duly qualified members of thoseclasses might be nominated to a public service even though recruitmentto that service was being made by competition.

8.10 Various measures have been taken since then to secure increasedrepresentation of the Scheduled Castes in the public services. Theresults obtained had however not been substantial. The Government ofIndia felt that this was mainly due to the difficulty of getting suitablequalified candidates. Therefore, they considered that the reservation ofdefinite percentage of vacancies might provide the necessary stimulus tocandidates of these castes to obtain better qualifications and thusmaking themselves eligible for Government posts and services.

8.11 On the basis of proportion which the population of the Scheduled Castesbears to the population of the other communities entitled to a share in theunreserved vacancies, the Scheduled Castes would entitle to 12.75% out


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of the total number of such vacancies. It was, however, not likely thatsufficient number of candidates from the Scheduled Castes would beforthcoming to fill the full number of vacancies to which they were entitledto on a population basis. The Government of India, therefore, came tothe conclusion that it will be sufficient to reserve a somewhat smallerpercentage viz., 8-1/3%. They propose to consider the question ofraising this percentage as soon as a sufficient number of qualifiedcandidates from those classes were found to be available.

8.12 8-1/3% of all vacancies to be filled by direct recruitment of Indians in theCentral and Sub-ordinate Services to which recruitment is made on allIndia basis will be reserved for Scheduled Castes candidates. Whenrecruitment was made by open competition and Scheduled Castescandidates obtain fewer vacancies than were reserved for them, thedifference would, if possible, be made up by the nomination of dulyqualified candidates of those castes.

8.13 The information as above is culled out from the Appendix XXIV,Government of India Resolution of 1943 on Representation of theScheduled Castes in the Services, New Delhi, the 11th August 1943.

8.14 The Indian Constitution was drafted according to the Cripps proposalspublished on March 29, 1941.

8.15 Convention has no place in a place where there is a written constitution.England, for example, is not having a written constitution. There,convention plays a dominant role in the prescription of the procedure andthe policy to be persuaded by the Parliament of England.

8.16 India is admittedly having a written constitution, which is the largestwritten constitution at the global level. As such, convention has no placeto play a part in the Indian situation. A convention or practice hithertofollowed cannot prevail against the written provisions of the Constitution.Of course, during the British rule, as we have seen earlier reservation forScheduled Castes with regard to representation in services was given tosuch castes proportionate to their population.

8.17 Alas! In the Constitution of India, no provision is traceable for reservationfor Scheduled Castes with regard to services in the State or foradmission into educational institutions to be given to them proportionateto their population.

8.18 Clause 4 of Article 15 providing for reservation to Backward Classes ofcitizens, Scheduled Castes and Scheduled Tribes uses the compendiousexpression namely, “for the advancement of any socially andeducationally backward classes of citizens or for the Scheduled Castes


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or Scheduled Tribes”. But, on the other hand, Clause 4 of Article 16refers to the expression namely “Backward Classes of citizens “ only,without any reference to Scheduled Castes or scheduled tribes. ReadingClause 4 of Article 15 and Clause 4 of Article 16 together, one can cometo the conclusion that Scheduled Castes and Scheduled Tribes are alsoincluded in the Backward Classes. The reason why reservation forScheduled Castes and Scheduled Tribes is separately, provided is notfar to seek and rather obvious. If the Scheduled Castes and scheduledTribes are combined with Other Backward Classes and reservation isprovided for, the competing edge for the Scheduled Castes andScheduled Tribes may not be there and the entirety of the benefits ofreservation in all probabilities be knocked off by the Other BackwardClasses, leaving nothing for the Scheduled Castes and ScheduledTribes. That perhaps appears to be the reason for separate reservationhaving been provided for Scheduled Castes and Scheduled Tribes.

8.19 The reservation for Scheduled Castes and Scheduled Tribes either in thematter of admission into educational institutions, or in the matter ofappointments or posts in the services under the State had been madesince the inception of the Constitution proportionate to their population.No provision, as already stated, is traceable in the Constitution formaking proportionate reservation for Scheduled Castes and ScheduledTribes either for admission into educational institutions or forappointments or posts to the services in that State. Of-course, noprovision is also traceable in the Constitution for making reservationeither for admission into educational institutions, or for appointments orposts in the services of the State for the Backward Classes of citizensproportionate to their population. Such being the case, the rationale formaking reservation in favour of Scheduled Castes and Scheduled Tribesalone proportionate to their population, either for admission toeducational institutions or for appointments or posts in the services of theState is neither understandable nor comprehendible, especially,reservation either for admission in the educational institutions or forappointment or posts in the services of the State in favour of BackwardClasses of citizens are not made to their proportionate population.

8.20 Of-course, there are special provisions in the Constitution for reservationof seats for Scheduled Castes and Scheduled Tribes in the House ofPeople under Article 330 as well as reservation of citizens of ScheduledCastes and Scheduled Tribes in the Legislative Assemblies of the Stateunder Article 332 proportionate to their population. On the basis of suchprovisions, reserved Constituencies are created for Scheduled Castesand Scheduled Tribes in the House of People as well as in theLegislative Assemblies of the States.


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8.21 By way of reiteration, and for the sake of emphasis, it may be stated, thediscriminatory treatment in the absence of specific, special provisionsavailable in the Constitution, between Scheduled Castes and ScheduledTribes and the Backward Classes of citizens either for admission intoeducational institutions, or for appointments or post in the services of theState, is neither understandable nor comprehendible.

8.22 Article 14, the Supreme Court said, is a basic feature of the Constitution.Reservation in excess of 50% affecting equality principle, in a colossusway affects the basic infrastructure of the Constitution. The reservationfor Scheduled Castes and Scheduled Tribes having been fixed at 15%and 7.5% respectively equivalent to 22.5% based on the population, theSupreme Court said, the reservation, if any, to be made in favour ofsocially and educationally Backward Classes of citizens must have to beconfined in such a way that the percentage reserved for them, if added tothe percentage of reservation to Scheduled Castes and ScheduledTribes should be below 50% and not even equal to 50%. Having takenthis dictum into consideration, the Mandal Commission fixed thereservation for the socially and educationally Backward Classes ofcitizens at 27% making the total reservation, 22.5% + 27% = 49.5%,below 50%, notwithstanding the fact, the total socially and educationallyBackward Classes of citizens were estimated at 52%. This means thepercentage of reservation to such a Backward Classes of citizens willalways depend upon the extent of reservation made for ScheduledCastes and Scheduled Tribes which is fixed, proportionate to theirpopulation. When the percentage of reservation for Scheduled Castesand Scheduled Tribes gets increased proportionate to their population, itgoes without saying that the extent of reservation available for theeligible Backward Classes of citizens, will get decreased to the extent ofthe increase in reservation in favour of the Scheduled Castes andScheduled Tribes, notwithstanding the population of the eligibleBackward Classes gets increased beyond the existing level of 52%.Hypothetically, it may be stated, if the population of scheduled castesand scheduled tribes gets increased to the level of 49.5%, which is below50% there is every likelihood of the extent of reservation to the eligiblebackward classes getting reduced to negligible or nil percentage ofreservation.

8.23 The Supreme Court categorically declared that Creamy Layer is not at allapplicable to Scheduled Castes and Scheduled Tribes. While saying so,the Supreme Court rather appears to be oblivious of the sanguineprovisions adumbrated under Article 341(2). According to the clause (2)of the said Article, the power of exclusion or inclusion specially inheres infavour of the Parliament, though the Supreme Court does not have anypower of inclusion or exclusion of Scheduled Castes. Creamy layer is


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after all a different phraseology for “exclusion”. To say that Creamy layeris not applicable to Scheduled Castes and Scheduled Tribes, as hasbeen said by the Supreme Court, is contrary to sub-clause 2 of Article341. Creamy layer which is nothing but exclusion can be madeapplicable to Scheduled Castes and Scheduled Tribes by the enactmentof a law by the Parliament if circumstances warrant for such exclusion.

8.24 The power of determination of socially and educationally BackwardClasses vests in the State as defined under Article 12 and not for anySuperior courts of jurisdiction. The State resorts to such exercise by theappointment of Commission. After an elaborate enquiry, on the rationalecriteria evolved, the Commission decides the social and educationalbackwardness of a class or caste and affixes the label to such of thoseBackward Classes and submits a report to the State. The State in turn,after considering the report submitted, classifies the caste orcommunities to be included in the list of Backward Classes eligible forreservation. Once, a decision had been reached by the State, the powerof the Court begins to scrutinize, whether such classification falls withinthe ambit of reasonableness. If the Court decides that such classificationis beyond the frontiers of reasonableness, the same will be struck downas null and void. To put it otherwise, it is the power of the State to decideon the social and educational backwardness of the caste or thecommunity while it is the power of the Court to adjudicate on thereasonableness or otherwise of such classification. There is no power forthe Court to prescribe such classification. If the Court does so, it willtantamount to encroaching upon the executive activity of the State.Article 15(4) specifically states that nothing in this Article shall preventthe State, from making any special provisions for the advancement ofsocially and educationally Backward Classes of citizens or for ScheduledCastes or Scheduled Tribes. Thus, it is crystal clear that the power todetermine the question of social and educational backwardness of acaste, or community or class definitely vests with the state, of course,subject to the reasonableness of the classification being determined byCourts. Such being the case, the State decided the question of socialand educational backwardness of the caste, community or class by theappointment of Ambasankar Commission in the State of Tamil Nadu andthe appointment of Mandal Commission by the Central Government.Both the reports had been placed before the Supreme Court in IndraSawhney and Supreme Court accepting Ambasankar Commission’sreport, went to the extent of saying that the State report (Ambasankar)will prevail over the Central report (Mandal Commission), if there is anyinconsistency between the two reports. On the basis of the list of castesor communities as decided by Ambasankar Commission, as socially andeducationally Backward Classes, which had been accepted not only bythe State of Tamil Nadu, but also by the Supreme Court, reservation hasto be provided to such of those backward classes and Schedule Castes


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and Scheduled Tribes either for the purpose of Article 15(4) and Article15(5) or Article 16(4), 16(4A) and 16(4B).

8.25 There is no provision in the Constitution to provide for exclusion (Creamylayer) of any of the class or communities from the list of BackwardClasses as already decided. If at all, if there is any exclusion from the listof Backward Classes as already decided, the power vests with the Statealone for doing so. It is not constitutionally permissible for the SupremeCourt to snatch away such a power, inhering in favour of the State, tolegislate on Creamy layer (exclusion) in its judgement and make itoperative as an amendment to the Constitution and issue a direction tothe State to formulate creamy layer and exclude such creamy layer fromthe list of Backward Classes. The Supreme Court, as a matter of fact,under the façade of adjudication actually snatched away the legislativepower of the State in defining Backward Classes which has already beendecided by the State on the application of relevant criteria and saybackward class is one as has been decided by the State or CentralGovernment on the acceptance of report of the relevant commissionminus creamy layer.

8.26 The Supreme Court, not only caused injustice by providing forreservation for backward classes not exceeding 27% although populationof such backward classes was estimated at 52%, but also reduced theextent of reservation for Backward Classes to a still lower level of 27% bythe introduction of the application of creamy layer in determining theeligibility for Backward Class status for the purpose of reservation.

8.27 Once a community or caste, as already stated, is decided to be a sociallyand educationally backward class, it goes without saying that the entiretyof such Backward Classes must receive the benefits of reservation to thefullest extent of such Backward Class population. The eligible BackwardClass population having been decided at 52% by Mandal Commission,they have to be provided for a reservation to such an extent, unmindful ofthe 22.5% reservation in favour of Scheduled Castes and ScheduledTribes. If done so, the total extent reservation will come to52%+22.5%=74.5%. There is nothing wrong in making such a provisionof reservation to the Backward Classes and Scheduled Castes andScheduled Tribes, when especially such class of people had beenoppressed or suppressed for thousands of years by the upper crust ofhierarchy of higher caste, enjoying cent percent reservation themselvesto the exclusion of others.

8.28 Indian Constitution is a goal oriented, but not right oriented one as inUnited States of America. The goal of the Constitution had been clearlyspelt out in its preamble. The preamble provides,


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“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute Indiainto a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLICand to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity

and integrity of the Nation”

8.29 The word “fraternity” is not a mere rhetoric, but is an instrument forassuring (a) the dignity of the individual and (b) the unity and integrity ofthe Nation. It has a two-fold application – with reference to the “backwardclasses” and the religious minorities.

8.30 The first aspect has been highlighted by the nine-Judge Bench decisionof the Supreme Court in Indra Sawhney’s case. In that case, theSupreme Court observed that the words “fraternity assuring the dignity ofthe individual” “has a special relevance in the Indian context” because ofthe social backwardness of certain sections of the community who had inthe past been looked down upon and deprived of any participation in theadministration. This situation could not be remedied unless thebackward classes were brought up to the level of the rest of thecommunity and given a share in the administrative apparatus through themechanism under Article 16(4) of the Constitution.

8.31 Pertinent it is to point out here that the “dignity of the individual” had notbeen incorporated as a specific basic inalienable human right as afundamental right in the Constitution of India as had been done in theGerman Constitution, which aspect of the matter had been referred to indetail in the Chapter “Basic Structure” of the Constitution in this report.The remedial measures of the backward classes being brought up to thelevel of the rest of the community and given a share in the administrativeapparatus through the mechanism under Article 16(4) of the Constitution,as stated by the Supreme Court, is of no consequence when especiallyArticle 16(4) – though incorporated in Part III of the Constitution givingthe status of a fundamental right by the founding fathers of theConstitution – had been denied such a status by the Supreme Court, bygiving the status of an enabling right.

8.32 As such socialism, secularism and democracy formed the foundationedifice of the Constitution. All these three facets run through the woofand weft of the fabric of the Constitution in very many articles. Thesocialistic ethos is mainly adumbrated in the directive principles of Statepolicy under Part IV of the Constitution. As a matter of fact, Part IV givessocial rights, the economic rights, educational rights and cultural rightsfor the people, where as Part III, Fundamental chapter deals with Political


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and Civil rights such as right to life and liberty, speech and expression,right to religion and other rights.

8.33 The implementing authorities in this Country, under the façade ofinterpreting the Constitution, laid down in no uncertain terms that theprovisions as adumbrated under Part III of the Constitution alone arejusticiable in the sense that they are immediately enforceable in courts oflaw and the rights as adumbrated Para IV of the Constitution are notenforceable just like the Fundamental rights. The implementingauthorities further went to the extent of saying that in case of conflictarising between the provisions as adumbrated in chapters Part III andPart IV, the provisions as adumbrated in Part III shall prevail. This sort ofan approach did not at all advance the social, educational and economicstatus of the weaker and under privileged sections of the society to anyextent whatever.

8.34 The implementing authorities were not in a position to understand therationale or reason for the justiciability of the rights adumbrated underPart III and Part IV of the Constitution. If we take into consideration, therights as adumbrated under Part III of the Constitution, such rights, if not,immediately enforced will die instantaneously. Further, for enforcementof such rights, the exchequer need not spend any money at all. Thatperhaps was the reason for the justiciability of the rights under Part III.

8.35 If we take into consideration, the rights as adumbrated under Part IV, forthe enforcement of many of such rights, the exchequer need colossusamount of money and that apart, even if such rights are not enforcedimmediately, the rights will not get perished and can wait for theirenforcement. This can be explained by way of an example. If all theunder privileged sections of the society in the Country want to enforcethe right to food, shelter, education, such enforcement of rights is notfeasible unless the Government is in a position to spend colossusamount and even if rights are not immediately enforced, the underprivileged sections of the society, may not die immediately and they maywait for the opportune moment for the State to provide such facilities andamenities, when the fluid cash, needed for such purposes, is possessedof by the State. Until then, they can take shelter under nature givenamenities such as trees. They may not perish for want of food, thereason being, they can live on earth by resorting to eat nature’s bountysuch as fruits, roots, grass etc., hoping for the amenities of shelter andfood to be given to them by the Government at the opportune time, whenthere is fluid cash for affording such amenities.

8.36 If the rights given under Part III are to flourish, it goes without saying therights as adumbrated under Part IV must reach the people or otherwisethe people may not really enjoy the fruits of the rights under Part III.


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8.37 The adoption of dichotomous approach between Part III and Part IV bythe implementing authorities reversed the goal of the Constitution inestablishing socialistic pattern of society in the sense of not conferringthe benefits intended to be conferred upon the underprivileged sectionsof the society, resulting in the status quo position. Apart from the conflictcreated by the implementing authorities, between Chapter III andChapter IV, they also created a division of rights as justiciable and non-justiciable among the fundamental rights. Clause (1) of Article 15 hadbeen considered to be the justiciable fundamental right, while clause (4)of Article 15, though forming part and parcel of Article 15 as a sub-clausetherein, was not construed as a justiciable fundamental right, but wasonly given the status of an enabling right. Just like that clause (2) ofArticle 16 had been interpreted by the implementing authorities asjusticiable fundamental right, while interpreting clauses (4), (4A), (4B) ofArticle 16, though forming part and parcel of the same article, yetinterpreted to be a non-justiciable, but an enabling right for no reasonwhatever. Further, the implementing authorities construed the meaningof equality as figuring in Article 14, not in the context of the constitutionalscheme. The implementing authorities instead of taking intoconsideration, the nature of our Constitution being a goal oriented one inthe sense of conferring social justice to the under privileged sections ofthe society so as to raise to their status to the level of the upper crust ofhierarchy of other castes, thereby establishing an Egalitarian society, buton the contrary, adopted an approach of interpreting the term “equality”as understood in the Countries like United States of America, having aright oriented Constitution, which in turn, acted as a deterrence in theestablishment of Egalitarian set up of society as contemplated by theConstitution.

8.38 The late lamented Prime Minister Indira Gandhiji brought in 42nd

amendment of the Constitution in 1976 in and by which, primacy wasgiven to Part IV in case of any conflict arising between Part III and PartIV. This amendment as has been brought in 1976 was abrogated by 44th

amendment of the Constitution by Janatha Government, which came topower then. But for the repeal effected by 44th amendment brought in byJanatha Government, cocksure it is, this Egalitarian set up of a societycould have been established by now.

8.39 Granting justiciability to Part III and rendering lip-service to Part IV that itis more fundamental than the fundamental rights by the implementingauthorities would tantamount to dupe dope and make people live onpromises.

8.40 The implementing authorities created a stumbling block for theestablishment of an Egalitarian set up of society by propounding a basic


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structure theory of the Constitution. The basic structure “theory” was notat all defined. The implementing authorities say in an autocratic fashionthat as and when they say some aspect of the Constitution is a basicstructure, that aspect of the matter is the basic structure. Such sayingcannot be anyone, other than the saying of a dictator which lendsassurance to the thinking that, in a democratic set up, the mostundemocratic of an institution can’t be anyone other than the Judiciary.

8.41 The implementing authorities after propounding the basic structuretheory went to the extent of saying that any legislative provision beingopposed to basic structure of the Constitution if challenged before Courtof law, would be struck down as null and void as being opposed to basicstructure of the Constitution.

8.42 If any of the provisions of the Constitution is stated to be basic structureby the implementing authorities, then there is no scope for theamendment of the provisions of the Constitution by the constituentAssembly of the Parliament, notwithstanding the fact that such a powerof amendment had been conferred upon such Assembly by sanguineprovisions adumbrated under Article 368 Clause 1 which prescribes,“Notwithstanding anything in this Constitution, Parliament may inexercise of its constituent power amend by way of addition, variation orrepeal any provision of this Constitution in accordance with theprocedure laid down in this article.” It is thus clear that the constituentpower inheres in favour of Parliament to amend the provisions of theConstitution by way of addition, variation or repeal in accordance withtheir procedure laid down therein notwithstanding anything contained inthe provisions of the Constitution. The words of clause 1 of Article 368are so explicit in defining the constituent power of the Parliament. Thewords referred to therein are addition, variation or repeal. These threewords are with no prefix, for curtailment of their meanings. As such, thereis no restriction with regard to the meaning of those words. But none theless, the implementing authorities went to the extent of interpretingclause 1 of Article 368 by saying, that there is an implied restriction in theamending power- the constituent powerinhering in favour of theParliament for the amendment of the Constitution. They are placing suchan interpretation on the amending power, inhering in favour of theParliament to amend any provisions of the Constitution, which aredeclared to be the basic feature of the Constitution.

8.43 The theory of basic structure as propounded is in all fours contrary to theConstitutional canon, “the generation must be given a choice to have itsown Constitution”.

8.44 Constitution is a dynamic document and not a static one. It has to bechanged to meet the modern needs of the society marching towards the


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path of civilization. It is not a Qur'an to be unchanged as God given one.It has to be changed meeting the requirements of the society. TheConstitution as enacted by founding fathers can not at all be stated toremain the same in the sense that it was, is and will be the Constitutionforever.

8.45 What is said in paragraphs 6.10 to 6.21 under the title “Social justice,merit and privileges” in Chapter VI of Government of India Report of theBackward Classes Commission, first part (Volumes I to II) 1980 isrelevant and they reflect as under:

6.1 Equality before the law is the most precious democratic right of anIndian citizen and it is enshrined in Article 14 of the Constitution of India. Thisright is further elaborated and made specific in Article 15, 16 and 29 of theConstitution. These Articles prohibit discrimination against any citizen ongrounds only of religion, race, caste, sex, language or place of birth, whetherin respect of employment or admission to educational institutions, or accessto public places, etc.

6.2 The above Articles constitute the bed-rock of a citizen s fundamentalrights. But by ensuring equality of opportunity to all citizens in respect ofeducational and employment opportunities, we may he ignoring the specialproblems of some backward sections of our people who have suffered fromsocial, cultural, educational and economic deprivation for hundreds of years.On the face of it the principle of equality appears very just and fair, but it hasa serious catch. It is a well-known dictum of social justice that there isequality only amongst equals, To treat unequals as equals is to perpetuateinequality. When we allow weak and strong to compete on an equal footing,we are loading the dice in favour of the strong and holding only a mockcompetition in which the weaker partner is destined to failure right from thestart. This approach does ensure the survival of the fittest . But we must alsonote that survival of the fittest is the law of the jungle.

6.3 The humanness of a society is determined by the degree of protection itprovides to its weaker, handicapped and less gifted members. Whereas in a.jungle everybody fends for himself and devil takes the hind-most, in acivilized society reasonable constraints are placed on the ambitions andacquisitiveness of its more aggressive members and special safeguardsprovided to its weaker and more vulnerable sections. These considerationsare basic to any scheme of social justice and their neglect will brutalize anyhuman society.

In a limited sense, the right to social justice may be defined as the right ofthe weak, aged. destitute, peer, women, children and other underprivileged persons, to the protection of the State against the ruthlesscompetition of life, It seeks to give the necessary adventitious aids to theunderprivileged so that they may have the equal opportunity with the moreadvanced in the race of life. It is a bundle, of lights; in one sense it iscarved of other rights; in another sense it is a preserver of other rights. It


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is the balancing wheel between haves and have-nots. (Social Justice andLaw by Shri Justice K. Subba Rao, National, New Delhi)

6.4 Our Constitution markers were fully alive to the need for providingsafeguards to the weaker sections of society. Whereas Articles 15, .16 and29 create the overall impression of according equal access to all citizens toeducational, employment and other facilities, Clause (4) of Article 16stipulates (4) Nothing in this article shall prevent the State from making anyprovision for the reservation of appointments or posts it favour of anybackward class of citizens which, in the opinion of the State, is netadequately represented in the services under the State.

6.5 Subsequently as a result of the Constitution (First Amendment) Act,1951, a similar clause was added to Article 15 also. Thus, it will be seen thatClauses (4) of both Articles 15 and 16 make special provisions for theadvancement of any socially and educationally backward classes. Further,Article 46 enjoins upon the State the obligation to promote with special carethe educational and economic intereST of the weaker sections of the people.

6.6 On the face of it, it may appear that special safeguards provided toweaker sections under Articles 15(4) and 16(4) are in conflict with thefundamental rights to education, employment, etc. It has been forcefullyargued that the equality of opportunity and treatment granted to every citizenunder Articles 14, 15, 16 and 29 of the Constitution is greatly undermined byClauses 4 of Articles 15 and 1 6, which enable the State to make specialprovisions for the advancement of weaker sections of the society. Accordingto this line of reasoning these two Clauses give the State overriding powersto greatly dilute the principle of equality before the law contained inArticle 14.

6.7 Here the real conflict arises from the clash between the intereST of theindividual versus that of society. The Fundamental Rights are primarilyconcerned with the rights of the individual. Claims of society do not have thesame sort of immediacy and urgency as the claims of individuals. Wrongssuffered by individuals stick out much more pointedly than the wrongssuffered by the society. In view of this the exceptions contained underArticles 15(4) and 16(4) appear to confer a privileged status on backwardclasses status seems out of line with the over all scheme of FundamentalRights. It is only under Directive Principles of the State Policy that tile claimsof society in general are accorded due recognition.

6.8 By now the conflict between the Fundamental Rights and DirectivePrinciples of the State Policy has become a very familiar theme ofParliamentary debates and judicial pronouncements. This conflict was veryvividly highlighted by Pandit Nehru during the Parliamentary debates on theConstitution (First Amendment) Bill, 1951. He stated,

. . . . The Directive Principles of State Policy represent a dynamic movetowards a certain objective. The Fundamental Rights represent-something static, topreserve certain rights which exist. Both again are


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right. But somehow and sometime it might so happen that that dynamicmovement and that static stand still do not quite lit into each other.

.. The result is that the whole purpose behind the Constitution whichwas meant to be a dynamic Constitution leading to a certain goal step bystep is somewhat hampered and hindered by the static element beingemphasized a little more than the dynamic element and we have to findout some way of solving it.

.... If in the protection of individual liberty you protect also individual orgroup in equality, then you come into conflict with that Directive Principlewhich wants, according to your own Constitution, a gradual advance or letus put it another way, not so gradual but more rapid advance, whereverpossible, to a State where there is less and less inequality and more andmore equality. If any kind of an appeal to individual liberty and freedom isto mean as an appeal to the continuation of the existing inequality, thenyou get into difficulties. Then you become static, unprogressive andcannot realize that ideal of an egalitarian society which I hope most of usaim at.

6.9 The dilemma pointed out by Pandit Nehru is very real and has beenfaced repeatedly in the course of implementing legislation aimed at thecreation of a more just social order. Whereas we can take legitimate pride inhaving established a Democratic Republic in India, the elitist and unequalcharacter of Indian society cannot be considered as a matter of muchsatisfaction.

6.10 Before we examine this issue further, it will be useful to consider theimplications of Equality in the context of human societies. H. G. Gans hasobserved that three alternative outcomes of Equality are generallyconsidered (i) Equality of opportunity, (ii) Equality of treatment, and (iii)Equality of results. Equality of opportunity promised under Article 16(1) of theConstitution, is actually a libertarian and not egalitarian principle as it allowsthe same freedom to everybody in the race of life. People who start theirlives at a disadvantage rarely benefit, significantly from equality ofopportunity. because, unless they are distinctly superior in skills or upward-mobility tech they can never, catch up with the more fortunate and mostdisadvantaged people never even get access to the supposedly equalopportunity . . Equality of opportunity is also an asocial principle, because itignores the many invisible and cumulative hindrances in the way ofdisadvantaged; in fact, unless the children of the poor are taken from theirparents at birth and brought up in middle class homes, most arecondemned to inequality of opportunity

6.11 Equality of treatment, observes Gans, may be interpreted in two ways.On the one hand, it means treating people as roughly equal in impersonalsocial intersections On the other hand, it means providing people with thesame resources regardless of their current resources of socio-economicposition; used in this sense, equality of treatment suffers from the samedrawback as equality of opportunity for to treat the disadvantaged uniformly


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with the advantaged will only perpetuate their disadvantage. Even in thecourts which pride themselves on equality of treatment before the law, thedefendant who can afford only a poor or overworked lawyer will not oftenobtain equal treatment from the judge.

6.12 In view of the above considerations, Gans observes, Consequently, theonly truly egalitarian principle is equality, of results, which may require Unequal opportunity or treatment for the initially disadvantaged so that theyeventually wind, up equal in resources or rights.

6.13 If a tree is to be judged by its fruits, equality of results is obviously themost reliable test of our aspirations and efforts to establish a just andequitable order. A formidable task under any circumstance, it becomesparticularly so in a society which has remained segmented in a finely gradedcaste hierarchy for centuries.

6.14 In fact the essence of Fundamental Rights itself remains unrealisedunless proper conditions are created for protecting the legitimate rights of theunder-privileged. Soon after Independence every State enacted landreforms legislation, giving security of tenure to tenants and tillers, placed aceiling on land holdings, etc.. As the weak and poor tenants and cultivatorsdid not have the means to enforce their rights and the powerful land ownershad the resources and influence to evade ceiling laws, our land reformmeasures have fallen far short of their objectives. Stronger sections ofsociety keep perpetrating all sorts of atrocities against Harijans and otherbackward classes and they are generally able to get away without anypunishment. Our entire legal apparatus is so expensive and time-consumingthat under privileged sections of society generally do not have the meansor stamina to get justice from law courts. Under these circumstances, theclaim of Equality before the law does not carry much conviction with theweaker sections of Indian society. Equality of results being the real acid testof effective equality, there is no running away from the fact that oursovereign democratic republic will remain seriously flawed unless a fairshare of the fruits of freedom Equality of opportunity and Equality oftreatment are also made available to the backward sections of our people.In this connection, Shri Justice K.Subba Rao has observed:

@.......unless adventitious aids are given to the under privileged people,it would be impossible to suggest that they have equal opportunities withthe more advanced people. This is the reason and the justification for thedemand of social justice that the under-privileged citizens of the countryshould be given a preferential treatment in order to give them an equalopportunity with other more advanced sections of the community.

6.15 In this connection nothing generates so much heat and genuineindignation as the concept of merit . Whereas nobody objects to the grant ofspecial educational facilities and various other concessions to the backwardclasses, the provision of a reserved quota in educational institutions orservices for members of Scheduled Castes, Scheduled Tribes or OtherBackward Classes provokes sharp reaction. The advocates of merit find itvery unfair when a depressed class student securing 45% marks gets


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admission to a medical college in preference to a student from the generalquota obtaining 70% marks. The resentment is much greater when a lowerranked backward class competitor is selected in preference to a much higherranked general quota counterpart to an All India Service.

6.16 This sort of reaction is based on two considerations. First, it hurts aperson s sense of fair play to see that a more meritorious candidate hasbeen left out in preference to a less meritorious person on purelyextraneous grounds. Secondly, it is argued, that by selecting candidates withlower merit against reserved quota vacancies; the nation is being deprivedof the services o the best talent that is available to it.

6.17 This line of argument, though plausible on the face of it, suffers from aserious fallacy regarding the nature of merit . We shall try to illustrate, thispoint with a homely example. Mohan comes from a fairly well off middleclass family and both his parents are well educated. He attends one of thegood public schools in the city which provides a wide range of extra-curricular activities. At home, he has a separate room to himself and he isassisted in his studies by both the parents. There is a television and a radioset in the house and his father also subscribes to a number of magazines. Inthe choice of his studies and, finally, his career, he is continuously guided byhis parents and his teachers. Most of his friends are of similar backgroundand he is fully aware of the nature of the highly competitive world in which hewill have to carve a suitable place for himself. Some of his relations are fairlyinfluential people and he can bank on the right sort of recommendation orpush at the. right moment.

6.18 On the other hand, Lallu is a village boy and his backward class parentsoccupy a low social position in the village caste hierarchy. His father owns a4 acre plot of agricultural land. Both his parents are illiterate and his family of8 lives huddled in a two-room hut. Whereas a primary School is located inhis village, .for his high school he had to walk a distance of neatly threekilometers both ways. Keen on pursuing higher studies, lie persuaded hisparents to send him to an uncle at the Tehsil head quarters. He neverreceived any guidance regarding the course of studies to be followed or thecareer to be chosen. Most of his friends did not study beyond middle-schoollevel. He was never exposed to any stimulating cultural environment and hecompleted his college education without much encouragement from anyquarter. Owing to his rural background, he has a rustic appearance. Despitehis college education, his pronunciation is poor, his manners awkward andhe lacks self-confidence.

6.19 Assuming that Mohan and Lallu had the same level of intelligence at thetime of their birth, it is obvious that owing to differences in social, cultural andenvironmental factors, the former will beat the latter by lengths in anycompetitive field. Even if Lallu s intelligence quotient was much higher ascompared to Mohan, chances are that the former will lag far behind the latterin any competition where selection is made on the basis of merit .

6.20 Let us suppose that both of them sit for the All India Servicesexamination and Mohan secures 50% more marks than Lallu. Does it mean


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that Mohan s merit is 50% higher than that of Lallu or, that, he will be 50%more. efficient than that village boy. Is it possible to determine that, in view oftheir respective native intelligence, how these boys would have faired in casethey had exchanged places? If merit also includes grit, determination, abilityto fight odds, etc., should not the marks obtained by Mohan and Lallu besuitably moderated in view of the privileges enjoyed by the former and thehandicaps suffered by the latter?

6.21 In fact, what we call merit in an elitist society is an amalgam of nativeendowments and environmental privileges. Mohan and Lallu are not equalsin any fair sense of the term and it will he unfair to judge them by the sameyard stick. The conscience of a civilized society and the dictates of socialjustice demand that merit and equality are not turned into a fetish and theelement of privilege is duly recognised and discounted for when unequalsare made to run the same race .

8.46 Human rights are in alienable basic rights of human beings for a goodliving in a free and peaceful atmosphere. Such rights may includepolitical and civil rights such as right to life, liberty, freedom of speechand expression, religion etc., and economic and cultural rights such asright to shelter, food, clothing, education, sanitation and health etc.,Political and Civil rights are adumbrated under Part III fundamentalrights, while economic and cultural rights are listed in Part IV directiveprinciples of Constitution. Effective implementation and enjoyment of therights guaranteed under Part III is possible only by conferring upon thepeople, the rights as promised under Part IV. As such the entirety of thehuman rights as alleged both under Part III and Part IV of theConstitution are to be realized and enjoyed by the people. Such rightsshould be protected by rule of law which the implementing authoritieshave to preserve, protect and maintain or otherwise rebellion against thetyranny and oppression would raise their ugly heads. Pertinent to quoteat this juncture Part 3 of the preamble to the Universal Declaration ofHuman Rights 1948 which prescribes: “Whereas it is essential, if man isnot to be compelled to have recourse, as a last resort, to rebellionagainst tyranny and oppression , that human rights should be protectedby the rule of law”.

8.47 It is to be remembered here that when the founding fathers of theConstitution were engaged in the preparation of the draft Constitution,the Universal Declaration of Human Rights took shape and came intoexistence in 1948. As such, the founding fathers of the Constitution couldin all probability have seized knowledge of the serious consequences toflow in the society, but for the enforcement and protection of theinalienable human rights as a whole namely, Civil rights, Political rights,Social rights, Economic rights and Cultural rights, without giving anyundue importance to any of the rights. But the implementing authorities inthe process of interpretation of the provisions of the Constitution tinkeredit in such a way that the benefits intended to be conferred on the


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downtrodden, under privileged, marginalized sections of the society, as amatter of fact did not reach them and consequently, they cannot be onpar with others and put them in the main stream.

8.48 The implementing authorities right from the commencement of theConstitution, till up to now make it appear to the outside World as if thatthey are the sworn enemies of social justice by their judgements notreflecting the social ethos underlying in the Constitution, although theyhave rendered lip service in flamboyant style that they alone protect thesocial interest of the unprivileged and marginalized sections of thesociety. Such attitudes of the implementing authorities were sought to beprevented during the period of late lamented Prime Minister JawaharlalNehru, unable to bear the stumbling blocks created by the implementingauthorities in the march of social order establishing an egalitarian societyby enactment of legislation. Nehruji thought fit to prevent such authoritiesfrom interfering with the social reforms by the enactment of legislationsby the State and consequently inserted article 31(B) in the year 1951 andIX schedule in the Constitution. The effect of the said article and the IXschedule was that even if legislation is rendered null and void, the saidlegislation would automatically get revived without putting to thenecessity of enactment of such legislation again. Further, any legislationmade by the Parliament or the Legislature of a State, if put in the IXschedule after observing the necessary formalities prescribed therefor,the implementing authorities have no power to strike down suchlegislations even if they are opposed the fundamental rights.

8.49 Subsequently, so many legislations were enacted by the Parliament aswell as by the Legislatures of the various States on social reforms andhave been placed in the IX schedule so as to put them beyond the paleof challenge in any superior courts of jurisdiction.

8.50 By the formulation of the basic structure concept, the Supreme Courtmade the Parliament and the Legislatures of the State simply puppets,not being in a position to reverse the judgements of the Supreme Courtby a way of the amendment of the Constitution or to enact any newlegislation on social reforms. Thus the will the people in this Country isunable to be reflected either by the Members of the Legislative Assemblyof the States or by the Members of the Parliament by the enactment ofnecessary of legislations to fulfill the aspirations, hopes of the people ofthe Country and to set up an Egalitarian society as adumbrated by theConstitution.

8.51 As such there is no salvation for the under-privileged, marginalizedsections of the society, unless and until the Constitution is changed byway of referendum.


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8.52 The implementing authorities created a grudge and want of atmosphereof cordiality with feelings of animosity among the Scheduled Castesthemselves by declaring that they constitute a homogenous group ineach and every State or Union Territories as contained in the list notifiedby the President of India after the commencement of the Constitutionwith Nil or little imagination or realization of the factual factors orsituations, although the list of Scheduled Castes had been prepared foreach and every State or Union Territories from the list of castes andcommunities, race or tribes or part of such castes or communities, racesor tribes which by itself shows that Scheduled Castes is not a caste byitself in the ordinary sense and form a homogenous group of peoplewithout having a difference or distinction in the social milieu of suchgroup of people. They are in the very nature of things heterogeneous incharacter. As a consequence of such declaration the weakest of theweak among the Scheduled Caste did not in the least, enjoy the benefitsof reservation intended to be given to Scheduled Caste in differentpercentage in different States depending upon the population and only afew in the upper crust of the hierarchy of the Scheduled Castes enjoyedexclusively the benefits of reservation.

8.53 Thus the various decisions of the implementing authorities in this countrynot only created disharmony and conflict within the Backward Classes ofpeople on one hand, and the Scheduled Caste or Scheduled Tribe on theother hand and what further more worse is, there is pell-mell, turmoil andtension among the Scheduled Castes themselves.

8.54 These things apart, the social, educational and economic status of theBackward Classes and Scheduled Castes or Scheduled Tribes – thoughthere is a little bit raise – is, however, not up to the level of the uppercrust of the higher caste hierarchy of this country.

8.55 It will be a mirage for the ushering in, of an egalitarian society in Indiaunless and until the so called epoch making judgements alleged to havebeen rendered by the Superior Courts of jurisdiction of this country onthe interpretation of the various Articles of the Constitution such asArticle 14, 15, 16, 31(B) & 9th Schedule, 335, 341 and 368 are reviewedand thereby getting the Constitution amended, making suchamendments feasible. Without the review of the earlier decisions onvarious Articles as stated above and thereby getting the Constitutionamended, there can be no effective capacity building exercise for conflictresolution in this Country. The alternate remedy is for a new Constitutionby way of referendum.


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8.56 However, the Second Administrative Reforms Commission, Governmentof India suggested certain remedial measures for “Capacity Building forConflict Resolution”, as seen reflected in a crystallized form as under :-

8.2. Socio-economic survey8.2.1. No socio-economic survey has been conducted of the Other BackwardClasses in the country. Some State Governments have conducted socio-economic surveys of particular segments of the Other Backward Classes butit is difficult to get a comprehensive picture of the socio-economic conditionsof the other backward classes in the country. It is therefore necessary thatGovernment immediately take up a socio-economic survey of the OtherBackward Classes.

8.3. Socio-economic Indicators:8.3.1. Since 1998-99 some data relating to socio-economic position/status ofdevelopment of OBC has started appearing in various surveys viz.,

a) 1998-99 National Family Health Survey.b) 1999-2000 Consumption Expenditure sample Survey in NSSOc) 1999-2000 NSSO Report on Employmentd) 1999-2000 NSSO Report on Land Holdingse) 2002-03 NSSO Report on Household assets and liabilities or Assetand Debt Survey.f) 2004-05 NSSO Draft Report on Employment

An analysis of NSSO data contained various Surveys and Reports andprovides following picture of socio-economic status of OBC (Figures 8.1 to8.6)Poverty*The incidence of poverty among OBC is intermediate to that among SC/STon the one hand and the non-SC-ST-OBC (Others) on the other. In generalpoverty among SC/ST is 3 times that of the Others , while for OBC it isdouble that of the Others .Health Indicators*As far as the health indicators are concerned, the OBC are much closer toOthers , than to SC/ST, who are far behind.Unemployment*Open unemployment, as measured by the Usual Principal Status (UPS), ismore or less consistently higher among OBC than among Others .*Unemployment, including underemployment, as measured by the CurrentDaily Status (CDS) among OBC is the lowest among all social groups in ruralareas and not significantly less than the ST but less than Others in urbanareas.Asset Ownership*Asset ownership (including land) per household of OBC is double that of SCand ST, but only about two-thirds of Others in both rural and urban areas.Indebtedness*However, the incidence of indebtedness, and consequently the debt toasset ratio, is highest among OBC of all social groups. It also appears thatOBC borrow a lower proportion of their debt from institutional sources andhave higher dependence on informal sources as compared to all the othersocial groups.


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8.4 Social Empowerment8.4.1. Clearly, the socio-economic condition of the OBC is such that it wouldrequire intervention to bring them on par with the Others and put them in themainstream. Schemes such as the Centrally Sponsored Scheme of PostMatric Scholarship, which is available to SC, could be extended to OBCincluding minorities. Various evaluation studies conducted of the scheme by,among others, the Babasaheb Ambedkar National Institute of SocialSciences (2000), Tata Institute of Social Sciences (1999), Centre forResearch Action and Training (2000) have recommended that this benefitshould be extended to other economically and socially backwardcommunities including the minority communities.8.4.2. The 2001 Census shows that the literacy rate among Muslims at 59.1per cent is below the national average of 64.8 per cent. The educationalstatus of Muslim women, with a literacy rate of 50.1 per cent, is very low. Forthe educational uplift of the Muslims, particularly of the girl child, it isimportant to ensure that in localities with concentrations of population of theMuslim Community, primary schools are established in adequate numbers.8.4.3. On the whole, special schemes on the lines of the schemes for SCand ST need to be taken up for social empowerment of the OBC.8.5 Economic Empowerment8.5.1 as mentioned earlier, the NSSO surveys reveal that the incidence ofpoverty among OBC is intermediate to that among SC/ST on the one handand the Others , on the other. We have also seen how open unemploymentis consistently higher among OBC than among Others . As far as assetownership including land is concerned, the ownership is only about two-thirds of Others in both rural and urban areas. The incidence ofindebtedness and consequently the debt to asset ratio is highest amongOBC of all the social groups.8.5.2 Clearly, if the OBC are to be put on par with Others and made a partof the mainstream, they have to be empowered economically throughemployment and income generation activities and alleviation of poverty.What is required is a comprehensive package of schemes, on the lines ofthose drawn up for SC and ST, to enable the OBC to develop their potentialand capacities as agents of social change, through a process of planneddevelopment.8.6. Recommendationsa. Government may work out the modalities of a survey and take up astatewise socio-economic survey of the Other Backward Classes , whichcould form the basis of policies and programmes to improve their status.b. Government needs to formulate and implement a comprehensive schemefor capacity building of OBC that would bring them at par with the rest ofsociety.

8.57 This Commission endorses the factual findings, as recorded and therecommendations made therefor by the Second Administrative ReformsCommission, Government of India in its Seventh Report on “CapacityBuilding for Conflict Resolution.”


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9. BASIC STRUCTURE THEORY – A DANGLING SWORDABOVE THE HEADS OF BACKWARD CLASSES

9.1 The basic structure theory as propounded by the Supreme Court inKeshavananda Bharati v. State of Kerala [AIR 1973 SC 146] for the firsttime and got the affirmation by subsequent decisions calls for review.

9.2 In Sankari Prasad Singh Deo v. Union of India [AIR 1951 SC 458], theSupreme Court held that no part of our Constitution is unamendable andthat Parliament may, by passing a Constitution Amendment Act, incompliance with the requirements of Article 368, amend any provision ofthe Constitution, including the Fundamental Rights and Article 368 itself.But in Golaknath I.C. v. State of Punjab [AIR 1967 SC 1643], the majorityof 6 Judges of a Special Bench of 11 overruled Sankari Prasad Singhview that though there is no express exception from the ambit of Article368, the Fundamental Rights included in Part III of the Constitutioncannot, by their very nature, be subject to the process of amendmentprovided for in Article 368 and that if any such right is to be amended, anew Constituent Assembly must be convened for making a newConstitution or radically changing it.

9.3 The igniting case for the ushering in of the Constitution (Twenty fourthAmendment) Act, 1971 was the majority decision in Golaknath. Thedecision in Golaknath was superseded by the said amendment byinserting clause (4) in Article 13 and clause (1) in Article 368 as a resultof which an amendment of the Constitution, passed in accordance withArticle 368, will not be ‘law’ within the meaning of Article 13 and thevalidity of a Constitution Amendment Act shall not be open to question onthe ground that it takes away or affects a fundamental right. Thisamendment has been held to be valid and the decision in Golaknath hadbeen overruled by a Full Bench of the Supreme Court in KeshavanandaBharati.

9.4 Keshavananda Bharati also laid down a proposition that thoughfundamental rights constituted no limitation on the amending power,there were other implied limitations, viz., its power to amend could not beused to alter the basic features of the Constitution or to make a newConstitution. The late lamented Prime Minister Smt.Indira Gandhi, inrather a bid to contain and control the aforesaid proposition, insertedclauses (4) and (5) in Article 368 of the Constitution by the Constitution(Forty second Amendment) Act, 1976 which read as under :-


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“(4) No amendment of this Constitution (including the provisions of Part III)made or purporting to have been made under this article [whether before orafter the commencement of section 55 of the Constitution (Forty-secondAmendment) Act, 1976] shall be called in question in any court on anyground.

(5) For the removal of doubts, it is hereby declared that there shall be nolimitation whatever on the constituent power of Parliament to amend by wayof addition, variation or repeal the provisions of this Constitution under thisarticle.”

Thus, the later view in Keshavananda Bharati was superseded byclauses (4) and (5) providing that,-

(a) there was no limitation expressed or implied upon the amendingpower under Article 368 (1) on its “constituent power” ; and

(b) the Constitution Amending Act would not therefore be subject tojudicial review on any ground.

9.5 The Forty-second amendment has in its turn been superseded by aConstitution Bench decision in Minerva Mills v. Union of India [AIR 1980SC 1789] which has adhered to the decision in Keshavananda Bharati,invalidating clauses (4) and (5) as violating the basic features of theConstitution viz., the limited nature of the amending power under Article368 and judicial review. It is further stated therein that the donee of thepower, ie., the Parliament, cannot, in exercise of this limited powerconvert their limited power into an unlimited one, or destroy thelimitations on that power.

9.6 After the reaffirmation and extension of the applicability of the doctrine ofbasic structure or basic feature in the Minerva Mills case, it is obviousthat so long as the decision in Keshavananda Bharati is not overruled byanother larger Bench of the Supreme Court, any amendment of theConstitution is liable to be interfered with by the Court on the ground thatit affects one or other basic features of the Constitution.

9.7 In Smt. Indira Nehru Gandhi v. Raj Narain [AIR 1975 SC 2299] it hasbeen observed that the claim of any particular feature of the Constitutionto be basic feature would be determined by the Court in each case thatcomes before it. In result, it is for those responsible for amending theConstitution to give what surprise lies in store for them before theSupreme Court.


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9.8 The Constitution Bench in Waman Rao & Ors v. Union of India [AIR 1981SC 271], appears to have refused to give retrospective effect to thedoctrine of “basic feature” as propounded in Keshavananda Bharati. Thereason, it is said, is that since the doctrine of “basic feature” derives fromthe decision in Keshavananda Bharati, it should not be applied to re-open the validity to the Constitutional amendment which took place priorto 24/4/1973, the date of the judgment in Keshavananda Bharati. It isonly Amendment Acts passed subsequent to the day it should be liableto attack on the basis of the doctrine of basic feature, of course, onproper interpretation.

“In Keshavananda Bharati, decided on April 24, 1973, it was held by themajority that Parliament has no power to amend the Constitution so as todamage or destroy its basic or essential features or its basic structure. Wehold that all amendments to the Constitution which were made before April24, 1973 …… are valid and constitutional.

Amendments made to the Constitution on or after April 24, 1973, are open tochallenge on the ground that they, or any one or more of them, are beyondthe constituent power of the Parliament since they damage the basic oressential features of the Constitution or its basic structure.

The theory that Parliament cannot exercise its amending power so as todamage or destroy the basic structure of the Constitution, was propoundedand accepted for the first time in Keshavananda Bharati…..”

It would be profitable to reproduce herein what the Supreme Court saidin Waman and it gets reflected as under:-

“Going to divergence among the opinions of several judges, it is very difficultto ascertain what is the opinion of the majority in the 13 Judge Bench ofKeshavananda. It is the decision of Khanna J, which broke the tie betweenthe rest of the Judges. It is to his judgment that one must refer to find out themajority decision in Keshavananda. The majority held that though theConstitution itself did not exempt any of its provisions from the amendingpower conferred by Article 368 and though the said Article 368 does notadmit any implied limitations on the amending power, the meaning of thevery word “amend” is to the following limitations; ‘while any piecemealchange may be made, the old Constitution cannot be totally destroyed or soradically changed as to lose its identity.” Hence the basic structure or thebasic feature of the existing Constitution cannot be amended through theprocess of amendment as provided in Article 368.”

9.9 In M.Nagaraj v. Union of India [AIR 2007 SC 71], the Supreme Courttraced the origin of basic structure. The sum and substance of what itsaid in regard thereto, is getting reflected [at page 225] in paragraphs 20,22, 26 and 28, as below:-


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“The doctrine of basic structure has essentially emanated from the GermanConstitution. Therefore it may be useful to look at common constitutionalprovisions under German law which deal with rights, such as, freedom ofpress or religion, which are not mere values, they are justiciable and capableof interpretation. The values impose a positive duty on the State to ensuretheir attainment as far as practicable. The rights, liberties and freedoms ofthe individual are not only to be protected against the State; they should befacilitated by it. They are to be informed. Overarching and informing ofthese rights and values is the principle of human dignity under the Germanbasic law. Similarly, secularism is the principle which is the overarchingprinciple of several rights and values under the Indian Constitution.Secularism in India has acted as a balance between socio-economic reformswhich limit religious options and communal developments. Therefore,axioms like secularism, democracy, reasonableness, social justice, etc. areoverarching principles which provide linking factor for principle offundamental rights like Articles 14, 19 and 21. These principles are beyondthe amending power of Parliament. They pervade all enacted laws and theystand at the pinnacle of the hierarchy of constitutional values. For example,under the German constitutional law, human dignity under Article 1 isinviolable. The expression “life” in Article 21 of the Indian Constitution doesnot connote merely physical or animal existence. The right to life includesright to live with human dignity. It is the duty of the State not only to protecthuman dignity but to facilitate it by taking positive steps in that direction. Noexact definition of human dignity exists. It refers to the intrinsic value ofevery human being, which is to be respected. It cannot be taken away. Itcannot be given. It simply is. Every human being has dignity by virtue of hisexistence. The constitutional courts in Germany, therefore, see humandignity as a fundamental principle within the system of the basic rights. Thisis how the doctrine of basic structure stands evolved under the GermanConstitution and by the interpretation given to the concept by theconstitutional courts.”

9.10 Each country is having its own Constitution. While framing theConstitution, the founding fathers normally take into consideration thehistorical, sociological, economic and other relevant factors affecting thepeople at large and such other factors requisite and necessary for theushering in or formation of a societal order intended to be created,besides the type of the Government for the governance of the country,taking into account the peculiar and unique features then prevalent in thecountry.

9.11 No doubt true it is, that at the time when the Indian Constitution was inthe anvil of formulation, the Universal Declaration of Human Rights 1948had more or less virtually come into existence. Besides, the American,Russian, Australian and Canadian Constitutions were also in existencebefore the Indian Constitution was made. The founding fathers, whileframing the Constitution for India, copiously copied from the variousConstitutions then available at the global level and also from theUniversal Declaration of Human Rights, 1948.


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9.12 Several basic inalienable human rights had been recognised not only inthe Universal Declaration of Human Rights, 1948 but also in theConstitution of other countries at the global level.

9.13 Right to self-determination had been recognized as a basic inalienablehuman right in the Universal Declaration of Human Rights, 1948.Similarly, right to secession had been recognized in the Constitution ofUSSR and also of the United States. But so far as India is concerned,right to secession or self-determination had not been recognized as aninalienable fundamental right in Part III of the Constitution of India. Thefact that very many inalienable basic and immordial human rights hadbeen recognized as fundamental rights of human beings, it does notmean that all such inalienable fundamental rights of human beings arerequired to be incorporated in the Constitution of a country. It is onlysuch of those human rights inalienable, basic, as are recognized to beincorporated in the Constitution of any country which alone can beregarded as justiciable human rights and not other human rights.

9.14 In describing or extracting the human rights certain words, expressionsor terminologies are used in the Constitution. The meaning to beascribed to the words, expressions or terminologies used in theConstitution of India cannot at all be expected to be given the samemeaning as has been given to the same words, expressions orterminologies given by the superior courts in such other countries.

9.15 The concept of equality before law and equal protection of law clause istraceable to the Fourteenth amendment of the American Constitution.The meaning to be ascribed to the expression ‘equality before law’ or‘equal protection of law’ in the United States by the Courts therein cannotat all be expected to be ascribed in the Indian context by the IndianCourts when especially such expressions or words are not defined in theConstitution of the respective countries. In India, we are having suchclauses viz., ‘equality before law’ and ‘equal protection of law’ which aretraceable to Article 14 of the Constitution. Indian Courts, it appears,drew inspiration from the superior courts of the U.S. to ascribe themeaning to the expressions ‘equality before law’ and ‘equal protection oflaw’ clauses. Such attitude of Indian Courts actually more or lesstinkered the Indian Constitution to large extent. The reason bristles tothis: - In the United States, the economic policy is one of leissez faire innature. The structure of the society therein is different. Differentsections of the people belonging to different races are settled therein.There is no question of any caste. The standard of living of majority ofthose people is very high, being more or less equal. The structure of thesociety therein is such as it is possible for all the people to enjoy the


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minimum amenities of life with ease and grace and without any difficultywhatever. In India, the pernicious caste system has been prevalent fromtime immemorial. Caste is affixed or attached to a person on his birthand remains for ever from cradle to grave. A person belonging to onecaste, on death, cannot be buried in the graveyard of other caste people.Caste also creates status in society, i.e., the status of a person belongingto various castes is not one and the same. There is still recognition inHindu communities, of touch pollution and distance pollution. Thestructure of society in India is basically different from that of the UnitedStates. Vast majority of people living in India are poor and poverty-stricken. Only very few people are grotesquely rich. There is an oceanor gulf of difference in the standard of living of the various cross-sectionsof the society in the Indian context. The hierarchy of higher castespeople had been in the forefront in all walks of life. Right from the BritishRaj till upto the dawn of Independence, hierarchy of higher castesoccupied more or less the entirety of the services of the State andeducation – particularly University education – had been the exclusivepreserve of the hierarchy of higher castes, the consequences of which isthat they occupied almost all professional careers like medicine,engineering, etc. The education provided employment to such castes ofpeople and consequently they were enriched in their life. Most of thedowntrodden sections of the society viz., backward classes had beenliving in impecunious circumstances and they were denied of anyopportunity for good education and deprived of any position in theservices of the State. They were mostly eking out their livelihood byengaging themselves in agricultural operations or serving as labourers.The expressions “equality before law” and “equal protection of law” weremeant to mean formal or strict equality recognized by law in countrieslike the United States. Such meaning to those expressions, if given inIndia by courts, can anyone imagine that the downtrodden sections of thesociety viz., the backward classes, Scheduled Castes and ScheduledTribes can ever climb the ladder of life by entering into educationalinstitutions and occupying the services under the State held inoccupation by the hierarchy of higher castes? Therefore, theexpressions “equality before law” and “equal protection of law” cannot atall be expected to be ascribed the same sort of meaning as has beengiven in the U.S., in India by the courts in this country. Instead of formalequality or strict equality, equality of results must have to be recognizedand applied in the Indian context besides the adoption of positivediscrimination policy to enable the downtrodden sections of the societyas has been referred to above, to achieve a level playing field of theother sections of the society including the hierarchy of higher castes.


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9.16 In the Indian context, human dignity or respect has not at all beenrecognized to be incorporated as an inviolable human right. The GermanConstitution adumbrates the basic rights in Articles 1 to 19. Article 1deals with “Protection of Human dignity”. Basic rights such as rights ofliberty (Article 2), freedom of faith, of conscience and of creed whichincludes undisturbed practising of religion guaranteed (Article 4),freedom of expression including freedom of press (Article 5) and otherbasic rights are dealt with under Articles 6 to 19.

9.17 Clause (1) of Article 1 gives protection of human dignity. Human dignityis so sacrosanct and perhaps the dignity of man is inviolable. It enjoinson all State authorities a duty to respect and protect it; clause (2) ofArticle 1 acknowledges human rights as the basis of every community, ofpeace and of justice in the world; clause (3) prescribes that the basicrights bind the legislature, the executive and the judiciary as directlyenforceable law.

9.18 A cursory perusal of the provisions of the German Constitution does notat all enunciate or propound the doctrine of basic structure. Articles 2 to19 enumerates the basic rights of human beings such as right to liberty,equality before law, etc., as the fundamental rights had been the basicrights of human beings in the Indian Constitution.

9.19 The Supreme Court interpreted the German Constitution in such a waythat the basic rights adumbrated in Articles 2 to 19 – liberty and freedomof individuals – are not only to be protected against the State, theyshould be facilitated by it, and the citizens are to be informed of it. TheSupreme Court further says that overarching and informing of theserights and values is the principle of human dignity under the GermanConstitution. This sort of an interpretation and analogy rather appears tobe far from correct. Clause (1) of Article 1 of the German Constitutionplaces so much emphasis on human dignity and it should be protectedby all the State authorities. As such, it stands by itself and divorced ofother basic rights. To put it otherwise, a mandate is cast on all Stateauthorities to protect and respect the dignity of man. So far as the otherbasic rights adumbrated in the Indian Constitution as well as the GermanConstitution, as clause (3) of Article 1 says, shall bind the legislature, theexecutive and the judiciary as directly enforceable law. As such, there isno linking factor between the other basic rights as enumerated in Articles2 to 19 and the basic rights as adumbrated under Clause (1) of Article 1relatable to protection of human dignity.


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9.20 ‘Secular’ is in the adjective form for the word ‘Secularism’. The word“Secularism” has been defined at page 1093 of the Concise OxfordDictionary, The New Edition for the 1990s as below:-

“secular. 1. adj. concerned with the affairs of this world; not spiritual orsacred. 2.(of education etc.) not concerned with religion or religious belief.3.a.not ecclesiastical or monastic. b. (of clergy) not bound by a religious rule.4.occurring once in an age or century. 5.lasting for or occurring over anindefinitely long time.”

The opposite or antonym for the word ‘secularism’ is ‘spiritualism’. Themeaning for the word “spiritual” has been defined at page 1174 of thesaid Dictionary as below:-

“spiritual – adj.1. of or concerning the spirit as opposed to matter.2. concerned with sacred or religious things; holy; divine; inspired (thespiritual life; spiritual songs). 3. (of the mind etc.) refined, sensitive; notconcerned with the material. 4.(of a relationship etc.) concerned with the soulor spirit etc., not with the external reality (his spiritual home)”

9.21 The Preamble to our Constitution as originally enacted does not containthe words “socialist” and “secular”. These two words were inserted in thePreamble by the Constitution (Forty second Amendment) Act, 1976, witheffect from 3.1.1977. From the insertion of these two words, thePreamble read :

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute Indiainto a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC andto secure to all its citizens:

JUSTICE, social, economic and political;LIBERTY of thought, expression, belief, faith and worship;EQUALITY of status and of opportunity; and to promote among them allFRATERNITY assuring the dignity of the individual

and the unity and integrity of the Nation;”

As such, India has been proclaimed to be a “SOVEREIGN SOCIALISTSECULAR DEMOCRATIC REPUBLIC”. The various adjective-wordsviz., “SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC”declare in unambiguous terms the nature of our Nation. As such, Indiahas been declared to be a secular nation. It is not a theocratic nation.The word “secular” as such, has been added to the Preamble of theConstitution to indicate the nature of the Nation not with a view to serveas a linking factor to the principles of fundamental rights Articles 14, 19and 21 as has been stated by the Supreme Court. The Supreme Courtfurther stated that apart from secularism, democracy, reasonableness,social justice are also overarching principles which provide linking factorfor principle of fundamental rights like Articles 14, 19 and 21.


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The Supreme Court really admits and states that the exact definition ofhuman dignity exists. The expression “life” in Article 21 of the IndianConstitution, the Supreme Court says, does not merely connote merelyphysical or animal existence. The right to life includes right to live withhuman dignity. It is the duty of the State not only to protect humandignity but to facilitate it by taking positive steps in that direction. It is justlike the German Constitution wherein human dignity under Article 1 isinviolable. Under the German Constitution, human dignity is afundamental principle within the system of basic rights. This is how thedoctrine of basic structure has been evolved therein. The analogy of theSupreme Court is not acceptable. All fundamental rights guaranteedunder the Constitution are basic, inalienable and immordial rights ofhuman beings.

9.22 The Supreme Court, in M.Nagaraj, states that it is a fallacy to regardfundamental rights as a gift from the State to its citizens. Individualspossess basic human rights independently of any Constitution by reasonof the basic fact that they are members of the human race. Thesefundamental rights are important as they possess intrinsic value. Part IIIof the Constitution does not confer fundamental rights. It confirms theirexistence and gives them protection. Its purpose is to withdraw certainsubjects from the area of political controversy to place them beyond thereach of majorities and officials and to establish them as legal principlesto be applied by the courts. This statement of the Supreme Court inM.Nagaraj is far from correct.

9.23 As already stated, there are ever so many basic human rights and it isonly such of those human rights that are incorporated in the Constitutionas fundamental rights, are overarching and enforceable and not otherrights. Incorporation of basic human rights as a fundamental right in theConstitution has to be performed by the founding fathers of theConstitution viz., the Constituent Assembly. The Constituent Assemblyitself is nothing but a composition of the representatives elected by thepeople of the country so as to make the drafting of the Constitution asreflecting the will of the people of the country.

9.24 The Constituent Assembly constituted in India before the dawn ofIndependence by the efforts of the British Cabinet Mission does notconsist of the elected representatives of the people, but it did consist ofmembers indirectly elected for the various Provincial Councils then inexistence and State Rajpramukhs. As such, the composition of theConstituent Assembly which was responsible for the drafting of theIndian Constitution admittedly consisted of hierarchy of higher castepeople and the State Rajpramukhs who did not descend from anydowntrodden sections of the society. The Constitution was drafted bysuch a Constituent Assembly long before the dawn of Independence on


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August 15, 1947. India became a Republic in 1950 and the Constitutioncame into force. The first Parliamentary Elections took place in 1951.The constitution as devised and drafted before the dawn ofIndependence by the Constituent Assembly was not at all placed beforethe elected representatives of the people in the Parliament and got theirapproval. It is only the Constitution as drafted by such a ConstituentAssembly provided for the fundamental rights chapter under Part III ofthe Constitution. For the sake of necessity, it may be reiterated andstated that all human rights recognized as inalienable basic human rightsare not incorporated as fundamental rights under Part III of ourConstitution. The rights granted as fundamental rights under Part III ofour Constitution are granted by the so called Constituent Assemblyrepresenting the will of the people, though it is not actually so. Right toself-determination is a basic inalienable human right recognized by theUniversal Declaration of Human Rights 1948. Such a right is nottraceable anywhere in the Indian Constitution. Therefore, the inalienablebasic human rights included in the Constitution can be considered onlyas gifts granted. Therefore the view of the Supreme Court on suchaspect of the matter does appear to be far from correct.

9.25 The Constitution cannot be stated to be static. It must be a dynamic onecatering to the needs of the changing society and meet their aspirations,hopes and expectations. It must also be able to meet the ever changingatmosphere by the advancement of science and technology. Thefounding fathers of the Constitution lying in the grave cannot be expectedto lie that the Constitution they had enacted was a constitution forever,that is, for the past generation, for the present generation, for the futuregeneration and forever. The recognized Constitutional canon at theglobal level is that the generation must be given the choice to have itsown Constitution. Older generation cannot be expected to say that theConstitution as has been enacted by them is a Constitution forever. Ifthe Constituent Assembly had the power to incorporate a basic humanright as a fundamental right in the Constitution, it equally goes withoutsaying that the very same Constituent Assembly which granted it has thenecessary and requisite power to withdraw the rights earlier granted, inthe sense of amending, altering or repealing the provisions of theConstitution. It is equally so, the Constituent Assembly of the Parliamentconsisting of elected representatives of the people must have thenecessary and requisite power to change, amend, alter or repeal theprovisions of the Constitution.

9.26 Certain historic factors have to be explored relating to entry of Aryansinto India, their four Vedas, two great epics Ramayana andMahabharata, books of Brahmanas, the Aranyakas, the Upanishads andthe Puranas, in order to understand in a clear cut fashion the varnasystem coming into operation in the Indian context and getting


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perpetuated for thousands of years creating a division among the Indianfolks into various castes and communities granting graded status to suchcastes and communities not only affecting their dignity as a human beingbut also standing as an insurmountable obstacle for attaining equalgraded status to that level with the Brahmins sitting in the apex of thepyramid being superior to one and all.

9.27 The authoritative historical factors to be referred therefor are traceable tocertain books prescribed for school education as devised by NationalCouncil of Educational Research and Training (NCERT) syllabus. Thereis a lesson under the caption “5. The Vedic Period and ChalcolithicSettlements” in the textbook “Getting Ahead in Social Science 6 – History(as per the new syllabus prescribed by the NCERT). The said lessongives a vivid picture of:

(i) The coming of the Aryans (period when they came to India)(ii) Where did they come from?(iii) What is the evidence for the coming of the Aryans?(iv) Where did they live?(v) How were they ruled?(vi) What kind of a society prevailed?(vii) How was society categorized?(viii) What was their occupation?(ix) What did they worship?(x) The religious books of the Aryans(xi) Chalcolithic settlements in the rest of India

The portions of the lesson under the aforesaid various topics run asunder:-

“1.The coming of the AryansAround the time the Indus civilization declined, new groups of people cameinto the Indian subcontinent from the north-west. Historians call thesepeople the Aryans.We have learnt almost everything that we know about the Aryans from theirsacred religious books called the Vedas. This period of Indian history istherefore also known as the Vedic period.2. Where did they come from?The Aryans are thought to have originated in the areas surrounding theCaspian Sea in southern Russia. They were basically pastoralist (peoplewho kept cattle). When pasture land became scarce in their homeland,groups of Aryans are believed to have left their homeland in search of freshpastures for their cattle. Some groups went westwards towards Europe andsome, through Persia and Afghanistan, moved to India.The Aryans spoke a language which is believed to be the root of Greek,Persian, Sanskrit and German. There are several words in commonbetween these languages. For example, the word for ‘mother’ is mater in


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Latin, meter in Greek, mutter in German, and matr in Sanskrit; the word for‘father’ is pater in Latin and in Greek, vater in German, and pitr in Sanskrit.The Aryans brought with them the horse and the horse-drawn chariot, twothings which were relatively unknown in the Indian subcontinent. They arealso believed to have brought the use of iron into India. Hence, their arrivalmarks the beginning of the Iron Age in northern India.3. What is the evidence for the coming of the Aryans?There is some archaeological evidence of this period. Archaeologist identifytwo types of pottery that are believed to be associated with the Aryansettlers. One is black-and-red ware (BRW), found in the Indo-Gangeticdivide and the upper Ganga-Yamuna doab (the land between two rivers).This has been dated to around 1450 to 1200 BC. The second is paintedgrey ware (PGW), which has been dated to 1000 to 600 BC. It has beenfound in the middle and eastern Gangetic Plain. Major sites includeSardargarh, Bairat and Noh in Rajasthan, Panipat and Ropar in Haryana,Delhi and Alamgirpur, Hastinapur, Atranjikhera and Kannauj in UttarPradesh. Painted grey ware is typically grey in colour, finely made andpainted with black or red geometric patterns. The shapes include flat-basedconvex-sided dishes, bowls, and vases (lotas).4. Where did they live?The Rig Veda, the first book of the Vedas, tells us that after crossing theHimalayas, around 1700 to 1500 BC, the Aryans first settled down in theregion surrounding the Indus and its tributaries. The region was known asthe Sapta Sindhu. The people were grouped into tribes. Cattle was theirmain source of wealth as it gave them milk, ghee and meat. The more thecattle, the wealthier the tribe was. So, it was not uncommon to have cattlewares.From 1000 BC to around 600 BC, the Aryans spread from Sapta Sindhuregion into the Indo-Gangetic plains. They cleared the thick forests bycutting and burning them. The land was then used for cultivation andsettling.The people lived in wattle and daub houses. Wattle and daub houses havea frame made of interwoven branches or wooden rods (wattle) that are thencovered with clay (daub).5. How were they ruled?The rajan was the chief of the tribe. He was chosen by the people. He wasassisted by the commander in-chief of the army, known as the senani, andthe priest or the purohit. The rajan was also advised by two assemblies ofelders known as the sabha and the samiti. The most qualified member ofthe tribe was selected as the next rajan. The rajan received gifts in kind. Healso received a share of the plunder when cattle raids took place. There wasno regular tax.In course of time, the rajan became more powerful. The chiefs battledamong themselves for more land. The victorious chief assumed more titlesas more power was gained. From various texts and epics we know that Kuruand Panchala were powerful tribes. The rajan performed sacrifices like theRajasuya and Ashwamedha (horse sacrifice) to gain supremacy over otherchiefs.As the rajan became more powerful, the sabha and the samiti lost theirsignificance.


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6. What kind of a society prevailed?The smallest unit of society was the kula or the family. The eldest malemember of the family, who was known as the grahapati, headed the kula.His decisions were final. His children and grandchildren too lived with him asa joint family. A number of kulas together were known as a vis or clan; anumber of clans became a jana (tribe). A number of janas formed a grama(village).Some women participated in assemblies, but this was not a universalpractice. In later years, however, women came to be considered inferior.They were no longer allowed to attend assemblies.7. How was society categorized?The people who composed the Vedas called themselves arya or noble onesand those whom they opposed as dasyus or dasas. Historians believe thatthe dasyus were the original inhabitants of the land. As the Aryansincreased in number and started migrating further into the Indo-Gangeticplain and the Deccan Plateau, they had to fight the local inhabitants for thepossession of the land. The defeated people were taken as slaves.Aryan society was also classified on the basis of occupation or professioninto four varnas or classes. The Brahmins were the priests, the kshatriyaswere the rulers and the warriors, and the vaishyas were the traders,cultivators and skilled workers. The shudras served the other three groupsand did the menial jobs.There is a hymn in the Rig Veda which tells that the classes mentioned werenot hereditary and could be interchanged.However, over a period of time, it became difficult for people to move out ofthe varna or class they were born into. The system was no longer based onone’s profession. It had become hereditary. Imagine a pyramid. At the topwere the brahmins, the priestly class. They held high positions because theywere necessary for conducting all rituals. Next in importance were thekshatriyas or the warriors. By acquiring more lands, they had becomepowerful. The vaishyas were next on the pyramid. They had becomewealthy and powerful due to their trading activities. At the bottom of thepyramid were the shudras.8. What was their occupation?The Aryans led a simple life. Agriculture and cattle rearing were theirimportant occupations. As more people turned to agriculture as a means oflivelihood, cattle as a source of wealth became less significant and landbecame more valuable.The people grew rice, wheat and barley. People also worked as potters,weavers, carpenters and chariot makers. The barter system was in practice,i.e., goods were exchanged without the use of money. Long-distance tradewas not common.After 1000 BC, agriculture became the most important occupation. Ironmade farming equipments far more superior and this played a vital role inbringing more land under cultivation. With technology and a better lifestyle,a variety of occupations like leather making and jewellery making came up.The people started trading with places across the seas too.The Aryans appear to have given a lot of importance to recreation – theyengaged in hunting, wrestling, gambling, music and dance.


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9. What did they worship?The Aryans worshipped the sky, the wind, the rain, fire and other elements ofnature as gods and goddess. The god of thunder and war was Indra, themost important of all. Other gods worshipped included Surya, the Sun god,Varuna, the god of rain, Prithvi, the goddess of the Earth, and Agni, the godof fire. Sacrifices or yagnas were performed to keep the gods andgoddesses happy.In the course of time, as the Aryans slowly spread across northern India,they started worshipping new gods like Brahma, Vishnu and Shiva.Goddesses like Saraswati and Lakshmi were also worshipped. Severalrituals were considered necessary to make them happy. The rituals becameelaborate over time.10.The religious books of the AryansThe Vedas were the main religious books of the Aryans. The Vedas containhymns (songs in praise of god) composed in Sanskrit. They also containdetails of rituals to be performed to appease the gods.There are four Vedas – the Rig Veda, the Yajur Veda, the Sama Veda andthe Atharva Veda. The Rig Veda is the oldest of the Vedas – it is believed tohave been composed between 1700 and 1100 BC. It consists of 1029hymns. Apart from the Vedas, the other religious books of the Aryansinclude the Brahmanas, the Aranyakas, the Upanishads, the Puranas andthe epics – the Ramayana and the Mahabharata. These books tell us aboutthe life of the Aryans – their beliefs, the nature of their society, their politicalset-up, their dress and food habits, the occupations they followed, and thenature of their economy.11.Chalcolithic settlements in the rest of IndiaAround the time the Indus Valley settlements were declining in the north-west, and the Aryans started coming into India, agriculture-based life hadstarted in other parts of the country. More than a thousand Neolithic andChalcolithic sites that flourished between 2000 BC and 500 BC have beendiscovered in various parts of the country. The Chalcolithic Age, as you sawin Chapter 2, was a period when copper and bronze were used, along withstone, for the production of tools, weapons and ornaments. Thus, along withcopper tools, the Chalcolithic settlements also used stone microliths, flakesand blades, stone and terracotta sling balls.”

9.28 We may usefully refer to the following passages as available at pages 64to 66 of the textbook “Themes in Indian History Part I [Textbook inHistory for Class XII] :

“3.4. Beyond the four varnas: IntegrationGiven the diversity of the subcontinent, there were and always have been,populations whose social practices were not influenced by Brahmanicalideas. When they figure in Sanskrit texts, they are often described as odd,uncivilized, or even animal-like. In some instances, these included forest-dwellers – for whom hunting and gathering remained an important means ofsubsistence. …….Categories of people who were viewed with suspicion included populationssuch as nomadic pastoralists, who could not be easily accommodated withinthe framework of settled agriculturists. Sometimes those who spoke non-


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Sanskritic languages were labeled as mlechchhas and looked down upon.There was nonetheless also a sharing of ideas and beliefs between thesepeople. The nature of relations is evident in some stories in theMahabharata.

3.5. Beyond the four varnas: Subordination and conflictWhile the Brahmanas considered some people as being outside the system,they also developed a sharper social divide by classifying certain socialcategories as “untouchable”. This rested on a notion that certain activities,especially those connected with the performance of rituals, were sacred andby extension “pure”. Those who considered themselves pure avoided takingfood from those they designated as “untouchable”. In sharp contrast to thepurity aspect, some activities were regarded as particularly “polluting”.These included handling corpses and dead animals. Those who performedsuch tasks, designated as “chandalas”, were placed at the very bottom of thehierarchy. Their touch and, in some cases, even seeing them was regardedas “polluting” by those who claimed to be at the top of the social order.The Manusmriti laid down the “duties” of the chandalas. They had to liveoutside the village, use discarded utensils, and wear clothes of the dead andornaments of iron. They could not walk about in villages and cities at night.They had to dispose of the bodies of those who had no relatives and serveas executioners. Much later, the Chinese Buddhist monk Fa Xian (c. fifthcentury CE) wrote that “untouchables” had to sound a clapper in the streetsso that people could avoid seeing them. Another Chinese pilgrim, XuanZang (c. seventh century), observed that executioners and scavengers wereforced to live outside the city.By examining non-Brahmanical texts which depict the lives of chandalas,historians have tried to find out whether chandalas accepted the life ofdegradation prescribed in the Shastras. Sometimes, these depictionscorrespond with those in the Brahmanical texts. But occasionally, there arehints of different social realities.”

9.29 From what has been extracted above, the salient points necessary forthe present purpose are reflected as below:-

(1) The Rig Veda tells us that after crossing the Himalayas, around1700 to 1500 BC, the Aryans first settled down in the regionsurrounding the Indus and its tributaries;

(2) From 1000 BC to around 600 BC, the Aryans spread from SaptaSindhu region into the Indo-Gangetic plains. They cleared the thickforest by cutting and burning them. The land was then used forcultivation and settling;

(3) The rajan was the chief of the tribe. He was assisted by thecommander in-chief of the army, known as the senani, and thepriest or the purohit. The rajan was also advised by two assembliesof elders known as the sabha and the samiti.;

(4) The rajan received gifts in kind. He also received a share of theplunder when cattle raids took place. There was no regular tax;


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(5) The rajan performed sacrifices like the Rajasuya and Ashwamedha(horse sacrifice) to gain supremacy over other chiefs;

(6) The smallest unit of society was the kula or the family;(7) The eldest male member of the family, who was known as the

grahapati, headed the kula. His decisions were final. His childrenand grandchildren too lived with him as a joint family;.

(8) The people who composed the Vedas called themselves arya ornoble ones and those whom they opposed as dasuys or dasas.Historians believe that the dasyus were the original inhabitants ofthe land;

(9) As the Aryans increased in number and started migrating furtherinto the Indo-Gangetic plain and the Deccan Plateau, they had tofight the local inhabitants for the possession of the land. Thedefeated people were taken as slaves.;

(10) The Aryan society was classified on the basis of occupation orprofession into four varnas or classes.;

(11) The Brahmins were the priests, the kshatriyas were the rulers andthe warriors, and the vaishyas were the traders, cultivators andskilled workers. The shudras served the other three groups and didthe menial jobs.;

(12) There is a hymn in the Rig Veda which tells that the classesmentioned were not hereditary and could be interchanged.;

(13) However, over a period of time, it became difficult for people tomove out of the varna or class they were born into. The systemwas no longer based on one’s profession. It had becomehereditary.;

(14) Imagine a pyramid. At the top were the brahmins, the priestly class.They held high positions because they were necessary forconducting all rituals. Next in importance were the kshatriyas or thewarriors. By acquiring more lands, they had become powerful. Thevaishyas were next on the pyramid. They had become wealthy andpowerful due to their trading activities. At the bottom of the pyramidwere the shudras.;

(15) The Aryans worshipped the sky, the wind, the rain, fire and otherelements of nature as gods and goddesses. The god of thunderand war was Indra, the most important of all. Other godsworshipped included Surya, the Sun god, Varuna, the god of rain,Prithvi, the goddess of the Earth, and Agni, the god of fire.;

(16) In the course of time, as the Aryans slowly spread across northernIndia, they started worshipping new gods like Brahma, Vishnu andShiva. Goddesses like Saraswati and Lakshmi were alsoworshipped.;

(17) The Vedas are the main religious books of the Aryans. The Vedascontain hymns (songs in praise of god) composed in Sanskrit. Theyalso contain details of rituals to be performed to appease the gods.;


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(18) There are four Vedas – (1) the Rig Veda, (2)the Yajur Veda, (3)theSama Veda and (4)the Atharva Veda.;

(19) Apart from the Vedas, the other religious books of the Aryansinclude the Brahmanas, the Aranyakas, the Upanishads, thePuranas and the epics – the Ramayana and the Mahabharata.These books tell us about the life of the Aryans – their beliefs, thenature of their society, their political set-up, their dress and foodhabits, the occupations they followed, and the nature of theireconomy.

9.30 It is thus crystal clear that the four varna system – which wasinterchangeable – emerged into India only after the coming of Aryansand later it became hereditary as not interchangeable. In such a system,the Brahmanas occupied the top position.

9.31 Human dignity

The following Sanskrit slokam gives a clear picture of the status ofBrahmanas:

DEIVADEENAM JAGAT SARVAM !MANTRADEENANTHU DEIVATHAM !

TANMANTHRAM BRAHMANADEENAM!BRAHMANO MAMADEVATHA !!

Meaning: Gods are subject to mantras, mantras are subject to Brahmanas.Therefore, Gods are subject to Brahmanas and thus the superiority of Brahmanas isestablished. [Source: The Abbe J.A.Dubois, Hindu Manners, Customs andCeremonies, Oxford, Third Edition-1906, Page 136.]

In India, the main heartland of Hindus, discriminatory practices amongthe Hindus on the basis of varna or caste has been in existence fromtime immemorial. And the Vedas, Puranas and Epics like Ramayanaand Mahabharata also affirm the varna or caste system being affixed toindividuals at the time of their birth and this sort of a caste systemcreated gradation of status of very many people belonging to differentcastes, and the status so created never got extinguished right fromcradle to grave. The dignity and respect for the individual in a Hindusociety is not inviolable but always violable from one’s birth to death.This sort of a provision as respects individual dignity and respect musthave to be provided for in the Indian Constitution which alone has to beconsidered as a basic structure or feature of the Constitution. To affixthe seal of approval to each and every one of the basic human rightsrecognized as fundamental rights as basic structure and feature of theConstitution, appears to be far from correct, the consequence of which isthe various fundamental rights as adumbrated in Part III of theConstitution must be amenable to amendments by way of additions,alterations, deletions, etc, by the Constituent Assembly of the Parliament


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which reflects the will of the people of this country. In this context, it ispertinent to describe a case study regarding how the caste system isperpetuated in Indian society despite entering into information technologyage.

Endogamy and perpetuation of Caste system in Indian scenario -A Case Study.

‘Endogamy’ was considered as a socio-cultural phenomenon since Vedicperiod to prevent pollution of blood of higher castes through social intercoursewith other castes. Dharmasastra depits the child born to a ‘brahmin’ womanand ‘the lowest sudhra’ man, as ‘chandala’ (meaning a sinful human). Eventhere are arguments commenting that ‘sati’ was brought into practice in anendogamous marriage system to curtail all unforeseen possibilities of gettinga woman belonging to higher caste polluted by other caste men.

A person born as ‘brahmin’ cannot convert himself – even if he wishes to getrid of such social symbol – into a ‘vellalar’ or ‘chakkiliar’ community, likeconversion from one religion to another religion. Caste is unalterable inendogamous system of marriage. The caste hierarchy can be protected onlyif such endogamous practices are strictly followed.

It is true that many of the non-brahmin community rationalists, attracted by therational thoughts of leaders like Thanthai Periyar, contracted inter-castemarriages. The Government also legalized such inter-caste marriagesthrough legislative measures. Many of such marriages though exogamouswere held between two different groups which are equally placed in socialhierarchy. Some of the inter-caste marriages of higher castes hadinterestingly happened with lower caste persons for the financial, political orsuch other advantages of the higher caste persons, but not for the rationalisticprocess of achieving an egalitarian society. The number of inter-castemarriages, if surveyed, may be very negligible against the number ofendogamous marriages getting contracted in a given period.

There are arguments that the socially discriminated society as envisaged indharmasasthra does no longer exist, as all the people are equally treated inall public places in urban areas as well as rural areas. Any person can enterinto temples without any caste discrimination; we are travelling in transportsystems without any difference; eating in hotels, restaurant and eat-outequally, etc. Further, even the persons visualized as Spiritual Gurus, despitebelonging to hierarchy of higher castes and strongly following dharmasastraare thinking only of universal brotherhood before a god. There are severalsuch arguments trying to prove that there is no discrimination prevalent in thepresent world scenario.

contd .


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[The arguments as above this Commission feels are unacceptable.Hinduism cannot exist by itself without the existence of caste. Hinduismdivorced of caste is no Hinduism. Hinduism will die. Hindus may not beprepared to accept such a situation. Caste will, therefore, exist in India forever so long as Hinduism exists.]

But, in real life, even today, we have not left the Information Technology (IT)space free from caste discrimination. There are matrimonial informationcenters in the web meant only for the information of Brahmins, arunthathiyars,adi-dravidars, vellalars, etc., separately. There are marriage facilitationbusiness centers run for profit by persons belonging to higher castes amongHindus from same address in two different names, one for Brahmins and onefor non-brahmins ; in similar manner, the e-business sites are also different forBrahmins and non-brahmins. Who knows ……! In future, the socialdiscrimination will take whatever form and cause the inventions of newtechnology to perform in its favour to perpetuate the social inequality.

Article 17 of our Constitution abolishes ‘untouchability’ and forbids its practicein any form, but not ‘caste’. Ours is a caste constitution, which recognizescaste. Affirmative action under the Constitution is permitted. If at all thepolicy of reservation should go, the Constitution – recognizing caste for thepurpose of affirmative action – instead of abolishing untouchability, shouldabolish endogamy and forbid practice of caste in any form. Such a situation isunlikely within the next few generations to follow. Until and unless the humandignity and respect is valued and caste is abolished from the Hindu socialsystem, it is mandatory that the affirmative action should continue to securesocially suppressed and downtrodden sections from the clutches ofdiscriminating higher sections of the society. So called advocates or SocialEconomists should facilitate distribution of public goods to one and all withoutinequality; and also every citizen in the society should have equal stake in thegovernance and growth of the nation.

Ends.

9.32 The dignity of individuals is referred to in the Preamble portion of theConstitution as “Fraternity assuring the dignity of the individual and theunity and integrity of the Nation”. The word “integrity”, it appears, hadbeen inserted by the Constitution (Forty Second Amendment) Act, 1976,w.e.f. 3.1.1977. The word “fraternity” is an instrument for assuring thedignity of the individual and the unity and integrity of the Nation. Ofcourse, the dignity of the individual in the said portion of the Preamble, ithas to be pointed out here that the dignity of individual had not beenspecifically referred to as a basic inalienable human right in thefundamental rights chapter as has been specifically referred to andstated in clause (1) of Article 1 of the German Constitution. If it had beenincluded as a fundamental right in the Indian Constitution, pretty certain itis, the pernicious caste system arising from whatever source and having


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been practiced for thousands of years which created divisions of thesociety with graded status, social ostracisation and other deprivationsresulting to people in the degraded status could have been given awatery grave without any difficulty whatever. The Supreme Court simplyrendered a lip service to the human dignity as being included in theenforcement of the various human rights as incorporated in thefundamental rights chapter.

9.33 The Supreme Court, as already referred to, in Kesavananda Bharati, laiddown a proposition that though fundamental rights constituted nolimitation on the amending power, there were other implied limitations,viz., its power to amend could not be used to alter the basic features ofthe Constitution or make a new Constitution.

9.34 The late lamented Prime Minister Smt.Indira Gandhi, in a rather a bid tocontain and control the aforesaid proposition, inserted clauses (4) and (5)in Article 368 of the Constitution by the Constitution (Forty secondAmendment) Act, 1976 specifically providing for that no amendmentincluding the provisions of Part II, Part III shall be called in question inany court on any ground. Such an amendment has been superseded bya Constitution Bench decision in Minerva Mills case supra. This sort ofsupersession by the Supreme Court in a democratic polity like Indiacannot at all be allowed to remain in courts of law. The reason is not farto seek. The Constitution of India is a mother document adumbrating thepolicies to be pursued for the governance of the country. TheConstitution has to be originally framed by the Constituent Assemblyconsisting of elected representatives of the Parliament. The power whichhas been given to the Constituent Assembly of the Parliament to create aConstitution in the sense of enacting certain provisions must have thenecessary and requisite power to amend or alter the provisions theyhave enacted suiting the needs of the time and the situation warrantingsuch a course to be adopted. Once the Constitution is framed, the powerof judicial review relatable to Constitutional amendments, if allowed toexist, it is nothing but anathema to the democratic polity in the sense ofthe will of the people not getting reflected giving predominance to the willof the individuals sitting in the corridors of power in the ivory tower of thesuperior courts of jurisdiction like the High Courts and the SupremeCourt. Of course, any enactment enacted either by the Parliament or bythe Legislature of the individual States cannot run counter to the objectsand provisions of the Constitution enacted for the country. If such asituation is created, there is nothing wrong in the granting of power ofjudicial review to the superior courts of jurisdiction to set at naught theenactment which is against the mother document viz., the Constitution, inwhich case, the will of the people cannot at all be considered to be ashaving been thrown to winds.


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9.35 As such, the need of the hour is to restore the Forty-second amendmentproviding for inclusion of Clauses (4) and (5) in Art.368 of theConstitution for the restoration of democracy so as to prevent theautocratic exercise of power by the Judges of the Courts of superiorjurisdiction assuming to themselves the power of “super-Legislatures”and “super-Parliament”.

9.36 As such, the basic structure or basic feature theory as evolved by theSupreme Court requires a re-look and reconsideration by a larger Benchof the Supreme Court in the interest of the public at large.


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10. NEGLECT OF BACKWARD CLASSES IN APPOINTMENTSTO HIGHER JUDICIARY

10.1 A glimpse or glance of the provisions of the Constitution relating to theappointment of Judge of a High Court may now be made. Clause (1) ofArticle 217 of the Constitution is relatable to the appointment of HighCourt Judge. The interpretation of the said provision came up forconsideration before the Supreme Court in the seven Judge Benchdecision, S.P.Gupta Vs. Union of India [AIR 1982 SC 149] and in thenine Judge Bench decision – Supreme Court Advocate on record-Association Vs. Union of India AIR 1994 SC 268.

10.2 The decision given by the Supreme Court in later decision almostamounts to rewriting of the Constitution. The effect produced by such aview is the establishment of judicial supremacy in the matter of selectionand appointment of judges to the Superior Courts of Jurisdiction – HighCourts and Supreme Court. This apart, the Supreme Court inKesavananda Bharathi Vs. State of Kerala AIR 1973 SC 1461 under thefacade of interpreting the provisions of Article 368 propounded theconcept of the ‘basic structure’ of the Constitution without defining what‘basic structure’ means. Further the Supreme Court in Indira GandhiSmt. Vs. Rajnarayan AIR 1975 SC 2299 observed that the claim of anyparticular feature of the Constitution to be a “basic feature” would bedetermined by the Court in each case that comes before it. In the result,it is impossible for those responsible for amending the Constitution toguess what surprise lies in store for them before the Supreme Court.

10.3 Top of all, the Supreme Court struck down many a social welfarelegislations – based on the directive principles of State Policy asengrafted in Part IV of the Constitution – and enacted by theGovernment – in the early stages after the commencement of theConstitution on the ground that those legislations were opposed to thefundamental rights as enshrined in Part III of the Constitution, withoutreconciling in a harmonious way by construing the directive principles ofState Policy as reasonable restrictions imposed in the exercise of thefundamental rights. Even the late lamented Prime Minister Nehruindirectly criticized the Judges by stating that a good Constitution, likethe Constitution of India may be proved to be a bad Constitution and viceversa by the implementing authorities. The implementing authoritiescannot be anyone other than the Judges of the High Courts andSupreme Court. Even the late lamented Prime Minister Smt.IndiraGandhi criticized the interpretative analogy adopted by the SupremeCourt in giving primacy to Part III in case of conflict between Part III andPart IV of the Constitution and she went to the extent of amending the


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Constitution by the Constitution (42 Amendment) Act, 1976 by givingprimacy to Part IV of the Constitution in case of conflict arising betweenPart III and Part IV. The amendment so brought in was subsequentlyabrogated by the Janata Government by 44th amendment of theConstitution.

10.4 What is further worse is that the Supreme Court went to the extent ofbisecting and dissecting fundamental rights adumbrated in Article 15 andArticle 16 and stated that Clause (4) of Article 15 and Clause (4) ofArticle 16 are only enabling provisions, but not fundamental rights,consequently not having justiciability while Clause (1) of Article 15 andClause (2) of Article 16 are alone fundamental rights, havingenforceability. It is so obvious that such an interpretation is madeingenuously by the use of glib and semantic language with a view todeprive the benefit of reservations reaching the downtrodden sections ofthe society. If the 42nd amendment of the Constitution giving primacy toPart IV of the Constitution remained intact without getting repealed, cocksure it is, the social welfare measures taken by way of enactment oflegislations like the Tamil Nadu Act No. 45 of 1994 conferring the benefitof reservation to the extent of 69% in favour of backward classes,Scheduled Castes and Scheduled Tribes need not at all face thechallenge before the Supreme Court as to its constitutional validity. Ifthe Tamil Nadu Act 45 of 1994 is struck down as null and void, about 3crore of people declared as backward and Most Backward Class in thisState and about 20% of SC and ST of the total population of the Stateamounting to 6 crore who are limping to take a step forward in theirsocial, educational and economic advancement will be greatlyjeopardized by getting affected and pushed back to occupy the positionstatus-quo ante.

10.5 One must ponder over the question as to why the backward classes ofcitizens, the SC and ST, constituting nearly 80% of the population ofcountry are unable to improve their status socially, educationally andeconomically to the expected level even after the lapse of 55 years fromthe date of commencement of the Constitution, containing very manybenevolent provisions such as Clause (4) of Article 15, Clause (4) ofArticle 16, Clause (1) of Article 38, Clause (2) of Article 38, Clause (b) ofArticle 39, Clause (c) of Article 39, Article 46, Article 338, Article 339,Article 340, Article 341 and Article 342, for the welfare of the backwardClasses, SC and ST. The reason cannot be anyone other than thepower in the judicial corridors, getting snatched away by the people,belonging to higher castes in the caste hierarchy to the deliberateexclusion of others and interpreting the provisions of the Constitution tosuit the sectional interest of a small section of the society whichnumerically did not exceed 10% of the total population of the country.The state of the health of the nation was viewed through their eyes, and


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the improvement in its health was effected according to theirprescription. It is naïve to believe that the exercise of judicial power wascarried on impartially, that the sectional interests were subordinated tothe interest of the country and that justice was done to the backwardclasses of citizens, SC and ST. This state of affairs is being continuedwithout a stop.

10.6 Worthwhile it is to mention here that more than 90% of the Judges in theHigh Courts and Supreme Court are people belonging to higher castesin the hierarchy of castes. How did this happen? The answer to such aquestion reveals “interesting details”. Of course it is vociferouslyproclaimed by standing at the pinnacle of the hill that selection andappointment of judges are done by the collegium of judges by adoptingthe loftiest principle of merit and merit alone in the best interest of theadministration of the justice system tending to deliver equal justice to thepeople of the country uniformly and without any sort of discrimination,without the interference from any quarter whatever. Such a despoticpower – not conferred upon by the Constitution but seized of by theJudiciary under the façade of interpretation of the Constitution in thesense of reenacting the provisions of the Constitution relating to theappointment of Judges – which is admittedly beyond the pale of purviewinterpretation – if allowed to continue, pretty certain it is – that thecountry is to face disastrous consequences of affecting the largerinterest of the major bulk of the population of the country.

10.7 “The interesting details” are culled out from the book under the caption“Supreme Court of India, An instrument of Socio-Legal Advancement” byone Subhash Chandra Gupta. The passage occurring under theheading “Caste hegemony” at pages 79 and 80 is relevant and it readsas under:

“What really triggered of the policy of transfers was the situation in somesouthern states. There was a period of time when in Andhra Pradesh andin Karnataka, most judges in the High Courts, belonged only to a particularcaste. It is common knowledge that in Andhra Pradesh, for a long time,only a Reddy could become the Chief Justice, and in the State of Karnatakaonly a Lingayat could become the Chief Justice.

Though a shrewd process of manipulation, a person belonging to thesechosen caste would be appointed to the post of judge of the High Court atthe very young age of 40 to 42, much younger than the normal age at whicha person is appointed a judge of the High Court, to ensure that with the longtenure of service he would be senior most judge and thus become the ChiefJustice. Persons belonging to other castes or communities would beappointed at the age of 55 or 56, thereby ensuring that none of them wouldbecome the Chief Justice. The younger judge would outlive his olderbrothers on the Bench. This shrewd manipulation was masterminded inAndhra Pradesh by Jagmohan Reddy, who later become a judge of the


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Supreme Court. It was in order to break this pernicious practice, that forthe first time transfers of judges from other States were effected.

Justice Das Gupta was transferred to Karnataka. So strongly entrenchedwas the caste domination in some of these states that in relation to justiceChandra Sekhar of the Karnataka High Court, he even went to the extent ofwithdrawing the powers of the District Court to appoint peons and reposedthis power in the High Court, thus ensuring that even peons were appointedfrom a particular caste alone. In varying degrees, the same perniciouspractice existed in other States such as Uttar Pradesh and Rajasthan. Butfor the policy of transfers, it is now an established fact that in AndhraPradesh only a Reddy would have been Chief Justice upto the year 1999and in Karnataka only a Lingayat would have been Chief Justice upto theyear 2003. It is in this context, that the policy of transfers of Chief Justices,has to be viewed.”

10.8 From the extract as above, it is discernible that caste and caste alonewas considered as merit in the matter of selection and appointment ofjudges. What is further worse is that, from the Karnataka examplerelating to the appointment of peons, the Chief Justice Chandra Sekharwent to the extent of withdrawing the powers of the District Courts thusensuring, that even peons were appointed from a particular caste alone.Thus it is crystal clear that caste of the Chief Justice of the High Court isthe dominating factor not only in the matter of selection and appointmentof Judges but also in the matter of appointment of even peons – a shamdisgrace to the Judiciary. Another revealing factor is that “by a shrewdmanipulation a person belonging to these chosen caste would beappointed to the post of judge of the High Court at the very young age of40 to 42, much younger than the normal age at which a person isappointed a judge of the High Court, to ensure that with the long tenureof service he would be senior most judge and thus become the ChiefJustice. Persons belonging to other castes or communities would beappointed at the age of 55 or 56, thereby ensuring that none of themwould become the Chief Justice. The younger judge would outlive hisolder brothers on the Bench. By adopting this sort of a shrewdmanipulation meticulous care was taken to see that the Judgesbelonging to SC, ST and BC did not reach the senior most position tobecome the Chief Justice so as to continue the perpetuation of powerinhering in chosen higher castes in judiciary.

10.9 It is also widely said that a person from a chosen higher caste had beenappointed as a judge of a High Court at such an young age – meaningthereby, younger in age to all the existing Judges in various High Courts– to see that he becomes the Chief Justice of the Supreme Court and hewill be there as a Chief for a pretty long period. Such an appointment asmade – as widely said – must be brought to light by utilizing the relevantprovisions of the Right to Information Act, 2005 (Act 22/2005). The castewise particulars of the Judges of the High Courts and Supreme Court can


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also be brought to light in such a manner. The particulars obtained – ifgiven wide publicity – would expose in a revealing manner the credibilityof the judiciary in the matter of appointment of judges of High Courts andSupreme Court.

10.10 Then what is the salvation to save the people of India from the clutchesof the Judges of High Courts and Supreme Court in such a situation asbrought about above? What is the solution? What is the remedialmeasure to be undertaken to solve such problem? Before answering thequestions as posed, one can try to find out as to whether such a parallelproblem arose in any of the major countries of the world. The practiceprevailing in England and United States in the matter of appointments ofjudges to higher judiciary was probed into.

10.11 Parliamentary system of governance is in vogue in England whereas thePresidential system of governance is adopted in United States.Supremacy is given to the Parliament in England in the governance ofthe country. The consequence of which is, there is no judicial review andthe judiciary has to look to the parliament as to the meaning to beascribed to any word in the legislation and therefore the power of judicialreview is not at all given to the judiciary to strike down a statute orlegislation. The Judiciary has to see through the eyes of theparliamentarians to interpret legislation. Such being the case thequestion that arises for consideration is as to whether the Parliament canenact any legislation affecting in a larger way the interest of the people ofthe country. Of course, it has power to do so; but it will not do so, eventhough such legislation cannot at all fall within the purview of judicialreview by courts. The reason is not far to seek. The public opinionagainst the Government in power will get materialized with all hurry andhaste just like the waves getting developed and spread to the entirety ofthe pond, if a small stone is thrown into it, the consequence of which isthe Government will be thrown out of power in no minute. Thedemocracy works very well and the people reign supreme. Judicialsupremacy is not at all there and the people getting affected by judicialverdicts cannot even be imagined. Such being the case, theappointments effected to the higher judiciary are not likely to cause harmor jeopardize the interest of the society at large. The system ofappointing party – advocates to the higher judiciary by the party in power(which is in practice) is of no consequence in as much as the judges soappointed can see through the eyes of the parliamentarians and speakthrough the mouth of the parliamentarians.

10.12 In United States, the Judges to the higher judiciary are not selected andappointed as in India, but assume office after their election. The personselected as Judges by the senators are normally politicians of the party inpower, practicing as a lawyer. It looks odd to hear; but it is the real state


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of affairs therein. One cannot assume that all politicians are bad and allJudges are paragons of virtue. Black sheep are everywhere. It has tobe identified. That is the problem. In the process of election of Judgesfrom among politician lawyers, there are very many advantages. Apolitician-lawyer is an open book. A politician-lawyer who is found to behonest even during his career as a lawyer-politician, he is bound to behonest as a Judge and there cannot be any sort of doubt that during hiscareer as a Judge, he will swerve away from the path of virtue. Thisapart he undoubtedly possesses the vital and intimate knowledge gainedthrough their rich practical experience by moving with the vast populaceof the country besides actually seeing personally the living conditions ofthe people belonging to various segments of society. Such being thecase, they can very well understand the response, reaction, behavioralpattern, aspirations, hopes etc. of the people. Equipped with such anintimate knowledge of the people of the country they can, with ease andgrace and without any difficulty whatever give a legal fitment to a casecoming before them for decision.

10.13 The moment they assume office after their election, they cut offcompletely any link they had with any sort of people during their careeras a lawyer-politician and avoid mingling with the public throughout theirtenure of their office. The position in India is different. The personbefore his selection and appointment is not known to the outside world.His philosophy and ideology is not known. There is no transparency inthe selection and appointments. He is like a cat on the wall. He will jumpto which side, nobody knows. There are pitfalls which have beenelaborately dealt with earlier. The system of election of Judges by theSenators – with so much of transparency and openness – workedwonders in United States.

10.14 What is required for a Judge is human knowledge and experience of lifesituations of various segments of society. Knowledge of law thoughnecessary – can if at all play a secondary place. To illustrate this, theelection and appointment of Earl Warren as the Chief Justice of UnitedStates Supreme Court in 1950s may be referred to. He practiced Lawonly for a few years. He was a great humanist. Humanism pervaded inall his activities. Such being the case, no wonder it was, he was electedas Governor in his early life and continued to get elected as a Governorfor four terms. While he was in such a status and position, he waselected by the senators as the Chief Justice of United States andassumed office. It was astonishing to everyone. Legal circles wereeagerly awaiting to see as to how he was going to function as the ChiefJustice of the Supreme Court of United States without having adequateknowledge and experience in the field of law as a lawyer. Contrary to theexpectation of all, he proved to be the most successful Chief Justice andrendered many epoch making judgements. One of his decision was


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Brown Vs. Board of education (347 US 483) overruling the separate butequal doctrine evolved in Plessy V. Ferguson [163 US 537 (1896)] whichoutlawed the discrimination against blacks in the matter of admission ofchildren of blacks in educational institutions.

10.15 One can very well understand that the procedure, as now available inIndia, in the matter of appointment of Judges to High Courts andSupreme Court, needs drastic change by suitably amending the relevantprovisions of the Constitution. If the Judges, as usual, are to declaresuch amendment as opposed to the basic structure of the Constitution,then the Government has to take a decision to amend such provisions ofthe Constitution by a referendum. If such measures are not resorted to,one can assert in no uncertain terms that the revolution which is in theoffing is to erupt unexpectedly.


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11. POLITICAL POWER DYNAMICS OF INDIA –A CASE STUDY

11.1 Article 245 of the Constitution of India deals with the extent of laws madeby Parliament and by the Legislatures of States. Clause (1) of this Articleprescribes,

“Subject to the provisions of this Constitution, Parliament may make laws forthe whole or any part of the territory of India, and the Legislature of a Statemay make laws for the whole or any part of the State.”

The legislative power granted to the Parliament as well as theLegislatures of States is, however, subject to the provisions of theConstitution. The legislative power, as such, on either of theseinstitutions is circumscribed and very well limited by the provisions of theConstitution.

11.2 Schedule 7 of the Constitution contains three Lists viz.,

(1) List I – Union List;(2) List II – State List; and(3) List III – Concurrent List

List I – Union List contains 97 items/subjects; List II – State List contains66 items/ subjects and List III – Concurrent List contains 47 items/subjects. The various Lists as above are the fields of legislation; Lists Iand II are respectively the fields of legislation for the Union and theStates while List III is the concurrent fields of legislation wherein both theUnion and the States inhere the power to legislate in respect of thosefields.

11.3 There are certain other provisions in the Constitution in and by whichlegislative power is specifically vested in the Parliament. Articles2(Admission or establishment of new States), 3(Formation of new Statesand alteration of areas, boundaries or names of existing States),11(Parliament to regulate the right of citizenship by law), 246(Subjectmatter of laws made by Parliament and by the Legislature of States),262(Adjudication of disputes relating to waters of inter-State rivers orriver valleys), 343(Official Language of the Union) and 348 (Language tobe used in the Supreme Court and in the High Courts and for Acts, Bills,etc.).

11.4 Article 246 deals with distribution of legislative powers as between theUnion and the State Legislatures with reference to the different Lists inthe 7th Schedule. The gist of the Article, in short, is that the UnionParliament has full and exclusive power to legislate in respect of matters


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in List I and has also powers to legislate with respect to matters in List III.The State Legislature, on the other hand, has exclusive power tolegislate with respect to matters in List II, minus falling in Lists I and IIIand has concurrent power with respect to matters included in List III.The power to legislate as has been conferred by this Article upon theParliament as well as the State Legislatures is, however, subject to theprovisions of the Constitution as has been prescribed by Article 245.Article 248 deals with residuary power of the Legislation inhering infavour of Parliament. Parliament has exclusive power to make any law inrespect of any matter not enumerated in the Concurrent List or State List.Such power includes the power of making any law imposing a tax notmentioned in either of those Lists.

11.5 Article 249 deals with the power of Parliament to legislate with respect toa matter in the national interest. This Article empowers the UnionParliament to take up for legislation by itself any matter enumerated inList II. Despite the fact that clause (3) of Article 246 confers the requisitepower upon the State Legislatures to legislate in respect of mattersenumerated in List II, the procedure contemplated therein has to befollowed whenever the Council of States resolves, by a two-thirdsmajority, that such legislation is necessary or expedient in the nationalinterest.

11.6 Article 250 provides for a situation wherein power inheres in favour ofParliament to legislate in respect of any matter in the State List if aproclamation of emergency is in operation.

11.7. Article 251 provides that if there is any inconsistency between a lawmade by the Parliament and the laws made by the State Legislaturesunder Article 249 (in national interest) and Article 250 (proclamation ofemergency in operation), then the law as made by Parliament shallprevail and the law made by the Legislatures of States shall, to the extentof repugnancy, be inoperative so long as the law made by Parliamentcontinues to have effect.

11.8. Article 254 deals with a situation where inconsistency comes to prevailbetween a law made by Parliament and a law made by the State inrespect of matters enumerated in the Concurrent List. Clause (1) saysthat if the State law relating to a concurrent subject is repugnant to aUnion law relating to that subject, then, the Union law – whether prior orlater in time – shall prevail and the State law shall, to the extent of suchrepugnancy, be void. A perusal of Clause (2) thereunder does notrestrict or prohibit the power of the State Legislature in respect of mattersin Concurrent List concerning which the Parliament has made legislationor there is an existing legislation by Parliament contrary to suchlegislation. The legislation so made by the State will prevail if the same


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has been reserved for consideration of the President and has receivedhis assent. However, under the proviso thereunder, the Parliamentcannot at all be prevented from enacting at any time any law in respect ofthe same matter including a law adding to, amending, varying orrepealing the law so made by the Legislature of the State.

11.9. Entry 11 of List II – State List relatable to “Education” was omitted by theConstitution (Forty second Amendment) Act, 1976 w.e.f. 3/1/1977. Priorto the amendment, subject to Entries 63 to 66 of List I and Entry 25 ofList III, “Education, including Universities” was a State subject under theomitted Entry 11 of List II. This, it is said, led to much controversy as tothe scope of State jurisdiction vis-à-vis the Union power under Entries 63to 66 of List I. This controversy was sought to be obviated bytransferring Education entirely to List III, Entry 25 – excluding subjectsincluded in Entries 63 to 66 in List I. After the amendment, Entry 25 ofList III reads thus:-

“25. Education, including technical education, medical education anduniversities, subject to the provisions of entries 63, 64, 65 and 66 of List I;vocational and technical training of labour.”

As a result of this amendment, no part of the subject “Education”, nowbelongs to the exclusive State List. Barring the topics covered by Entries63, 64, 65 of List I, the residue of education has become concurrent.Hence, the problems arising out of Union legislation encroaching uponthe State sphere has been obviated.

11.10. From what has been stated above, on an analysis of various provisionsof the Constitution regarding distribution of powers between the UnionGovernment and the States, though it has been very well said that theIndian Constitution assumes the role or character of “Federal” as well as“Unitary” Constitution, a careful perusal of various provisions that havebeen taken up for discussion would point out in unmistakable terms thatthe Union Government can encroach upon the powers of the State inenacting legislations even in respect of matters in the fields of legislativeactivities of the State as contained in List II and List III of the SeventhSchedule of the Constitution. Of course true it is, that in an emergencysituation, the Union Government can encroach upon the powers of theState in “national interest” and “public interest” in order to protect andsafeguard the freedom of the nation from internal as well as externalaggression, assuming the role to be performed in a unitary Constitution.But even in normal peaceful situation, it cannot be said that the UnionGovernment cannot at all encroach upon the powers of the StateGovernment by enacting a legislation in the field of exclusive legislativeactivities of the State under List II as well as List III wherein a concurrentlegislative activity is contemplated both by the Union as well as the StateGovernments and take away the entirety of powers of the State


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Government under the façade of “national interest” reducing the States tothe level of mere municipalities or village panchayats.

11.11 A glaring example is the proposed Bill in the shape of “NationalCommission for Higher Education and Research Bill, 2010”. The mainaim of the said proposed Bill is to establish a National Commission forHigher Education and Research for twin purposes:-

(1) to provide for the determination, co-ordination, maintenance ofstandards in, and promotion of, higher education and research,including university education, technical and professional educationother than agricultural and medical education; and

(2) to promote the autonomy of higher educational institutions for thefree pursuit of knowledge and innovation, and for facilitating access,inclusion and opportunities to all, and providing for comprehensiveand holistic growth of higher education and research in acompetitive global environment through reforms and renovation andto provide for an advisory mechanism of eminent peers inacademia.

11.12 Section 2(k) of the said proposed enactment defines “Collegium” as theCollegium established under section 17 of this Act.

11.13 Section 2(t) defines “higher education” as such education, imparted bymeans of conducting regular classes or through distance educationsystems, beyond twelve years of schooling leading to the award of adegree or diploma; but does not include medical education or agriculturaleducation in institutions other than universities. As per this definition,medical education and agricultural education imparted in universities areincluded in higher education.

11.14 Section 2(u) defines “higher educational institution” as an institution oflearning including a university, an institution deemed to be university, acollege, an institute, an institution of national importance declared assuch by an Act of Parliament, or a constituent unit of such institution,which is imparting by means of conducting regular classes or throughdistance education systems, higher education or research therein.

11.15 Section 50 relates to overriding effect. It prescribes that the provisions ofthe Act shall have overriding effect notwithstanding anything inconsistenttherewith contained in any other law for the time being in force or in anyinstrument having effect by virtue of any law other than this Act.

11.16 It is thus crystal clear that education beyond twelve years of schoolingleading to an award of a degree or diploma excluding medical and


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agricultural education in institutions other than universities means highereducation within the four corners of this proposed legislation.

11.17 Section 4 contemplates the establishment of a National Commission forHigher Education and Research. The Commission shall be a bodycorporate. It has power to acquire, hold and dispose of properties, bothmoveable and immovable and to contract, and shall, by the said name,sue or be sued.

11.18 The Commission, according to Section 5 shall consist of a Chairpersonand six other Members. The office of the Chairperson and three otherMembers shall be whole time and salaried. The Chairperson and theother whole time Members shall be scholars being persons of eminenceand standing in the field of academics and research possessingleadership abilities, proven capacity for institution building andgovernance of institutions of higher learning and research.

11.19 The Members other than the whole time Members shall be persons ofeminence with high academic credentials with proven contribution toeconomic and social development and experience of engagement withinstitutions of higher learning and research.

11.20 The Chairperson and other Members shall be appointed by the Presidenton the recommendation of a Selection Committee consisting of:-

(i) the Prime Minister, who shall be the Chairperson of the Committee;(ii) the Speaker of Lok Sabha; and(iii) the Leader of Opposition in Lok Sabha; and(iv) the Minister in charge of Higher Education in the Government of

India;(v) the Minister in charge of Medical Education in the Government of

India.

11.21 The Selection Committee shall make its recommendation from a panel ofthree names, submitted by the Collegium under clause (c) of sub-section(1) of section 19, for each vacancy.

11.22 Section 17 prescribes that there shall be established a “Collegium”consisting of core Fellows and co-opted Fellows, being persons ofeminence and integrity in academia in higher education and research.

11.23 No person shall be eligible for appointment as a Fellow of the Collegiumunless he –

(a) is a citizen or an Overseas citizen of India; and


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(b) has made substantial contribution to the advancement ofknowledge demonstrated through publications which areinternationally acknowledged and peer-reviewed.

11.24 A core Fellow of the Collegium shall be a person

(a) who is, or has been, a National Research Professor; or(b) who is a recipient of the Nobel Prize or Field Medal; or(c) who is a recipient of the Jnanpith award; or(d) who is a Member of an Academy of international standing.

11.25 Section 19(1)(c) prescribes that the Collegium shall, “when called uponto do so and in respect of appointments of Members and Chairperson ofthe Commission, recommend a panel of three persons for each post tothe Selection Committee constituted under sub-section (4) of section 5.

11.26 Thus it is abundantly clear that even the Selection Committee constitutedunder sub-section (5) of section 5 consisting of the highest dignitarieslike the Prime Minister etc., shall have no power to recommend forappointment either as Member or as Chairperson to the Commission anyperson who is finding a place in the panel of names recommended by theCollegium comprising of Core Fellows and Co-opted Fellows as definedunder Sec.19. The Core Fellows and Co-opted Fellows as contemplatedby the said Section cannot at all, in normal circumstances, be expectedto be coming from people other than the hierarchy of higher castes in thesituation and circumstances now prevailing in India. If the selection fallsin the hands of such a Collegium of Members, it is obvious as obviouscould be, that the selected persons cannot be expected to originate fromany source other than their own groups going by the adage, “Birds ofsame feather flock together” as and when an opportunity forth comes forthe creation of such a situation.

11.27 Section 20 contemplates preparation of National Registry of personseligible and qualified for appointment as Vice Chancellor or head ofinstitution of national importance. The Collegium shall recommend, fromtime to time and in such manner as may be prescribed in concurrencewith the Commission, for inclusion in the National Registry, names ofpersons eligible and qualified for appointment as Vice Chancellor of auniversity or the head of an institution of national importance. TheCentral Government and the State Governments may also refer thenames of suitable persons to the Commission for inclusion in theNational Registry of persons eligible and qualified for appointment asVice Chancellor or head of institution of national importance. The merereference by the Central Government or State Governments for inclusionof eligible persons for appointment as Vice Chancellor or head ofinstitution is not by itself sufficient for inclusion of their names in theNational Registry of persons eligible and qualified for appointment as


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Vice Chancellor or head of institution of national importance. The merereference by the Central Government and the State Governments to theCommission for inclusion of eligible persons for consideration as ViceChancellors of Universities is not by itself sufficient for inclusion of theirnames in the Registry of Persons eligible and qualified for appointmentas Vice Chancellors and Head of Institutions of national importance.What is further required is, the Collegium may assess the suitability andcompetence of such persons for such inclusion in the Registry somaintained. Thus, the Collegium is all in all powerful in the matter ofselection and appointment of Vice Chancellors and Head of Institutionsof national importance. There is thus no control over the Collegium bythe Government in the matter of appointment of Vice Chancellors andHead of Institutions of national importance. Taking into consideration theoverriding effect of the Act as contemplated under Section 50 and thepower ingrained in favour of the Collegium, there is little or no scope atall for any other class of citizens other than the class of citizensbelonging to hierarchy of higher castes to be appointed as ViceChancellors and Head of Institutions of national importance. To say thatthe fabric of the National Commission for Higher Education andResearch Bill 2010 has been woven into by the threads of variousprovisions contained therein by a shrewd process of manipulation, willnot only usurp the powers of the various State Governments in thematter of higher education, but also bury the social justice fathom deepby annihilating the reservation provisions as contained in the legislativeenactments of the various States framed under Articles 15(4) and 16(4)of the Constitution.

11.28 This enactment contains a Repeal and Savings provision in the shape ofsection 56 in and by which the University Grants Commission Act, 1956[3 of 1956], the All India Council for Technical Education Act, 1987 [Act52 of 1987], the National Council for Teacher Education Act, 1993 [73 of1993] are repealed with effect from such date, not later than one yearfrom the date of coming into force of this Act, as the Central Governmentmay, in consultation with the Commission, notify.

11.29 These things apart, various enormous powers have been ingrained infavour of the Commission such as grant of authorization for thecommencement of first academic operations as well as revocation ofauthorization. Therefore, the Collegium constituted under the Act carvesout a separate kingdom in the field of education subject to the control ofNational Education Tribunal to which an appeal is provided under section38 in favour of the aggrieved persons either for the grant of or refusal orrevocation of authorization under the Act. In a democratic polity, thethree pillars viz., judiciary, executive and the legislative are expected toperform or discharge their respective functions. The governance oradministration of various institutions established normally comes under


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the executive. Establishing or creating a Commission like the NationalCommission for Higher Education and Research and leaving the entiresubject of higher education in all perspectives to such an institution, isnothing but shirking the responsibility of administration and execution ofsuch institutions in a democratic polity, thereby making a mockery ofgovernance of institutions established by the Government by leaving it atthe hands of a few individuals just like a private entrepreneurialenterprise with hundred per cent funds of the Government, who can rideon the horse of higher educational institutions without any control fromany quarter whatever inclusive of the Government, of course, subject tothe provisions contained in the Act which confers untrammeled powers tothe members of the Collegium which cannot be curtailed or restricted bythe provisions contained in any other law – State or Central – say forexample, reservation Laws in existence – by the inclusion of anoverriding provision in the Act in the shape of Section 50 – which in theprocess of sands of passage of time is likely to bury social justice fathomdeep by denying admission in higher educational institutions, therebycreating a facile situation or atmosphere, not making it possible for thesocially downtrodden sections of the society getting employed in theservices under the State and making the doors open for the hierarchy ofhigher castes people to permeate and pervade in the entire atmosphereof employment in the services of the State.

11.30 The Indian federation as compared to American Federation may now fallin the arena of comparison and contrast in order to understand as to howthe provisions of the Indian Constitution reduce the States in the countryto the level of Municipalities or Village Panchayats.

“The points of difference between the American Federation and the IndianFederation are mainly two. In the U.S.A. this Dual Polity is followed by adual citizenship. In the U.S.A. there is a citizenship of the U.S.A. But thereis also a citizenship of the State. No doubt the rigours of this doublecitizenship are much assuaged by the Fourteenth amendment to theConstitution of United States, which prohibits the States from taking awaythe rights, privileges and immunities of the citizens of the United States. Atthe same time, as pointed out by Mr.William Anderson, in certain politicalmatters, including the right to vote and to hold public office, the States mayand do discriminate in favour of their own citizens. This favouritism goeseven farther in many cases. Thus, to obtain employment in the service of aState or local Government one is in most places required to be a localresident or citizen. Similarly, in the licensing of persons for the practice ofsuch public professions as law and medicine, residence in or citizenship ofthe State is frequently required; and in business where public regulationsmust necessarily be strict, as the sale of liquor and of stocks and bonds,similar requirements have been upheld.

Each State has also certain rights in its own domain that it holds for thespecial advantage of its own citizens. Thus, the wild game and fishing in a


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sense belong to the State. It is customary for the State to charge higherhunting and fishing license fees from non-residents than from its owncitizens. The States also charge from non-residents higher tuition fees instate colleges and universities, and permit only residents to be admitted totheir hospitals and asylums except in emergencies.

In short, there are a number of rights that a State can grant to its owncitizens or residents that it may and does legally deny to non-residents, orgrant to non-residents only on more difficult terms than those imposed onresidents. These advantages, given to the citizen in his own State,constitute the special rights of State citizenship. Taken all together, theyamount to a considerable difference in rights between citizens and non-citizens of the States. . . . . .”[Ambedkar & The Making Of The Indian Constitution – A Tribute toBabasaheb B.R.Ambedkar :: H.V.Hande (Macmillan Publishers India Ltd –pp29-30]

11.31 The U.S. also is a democratic republic, besides being a secular State.The form of government established therein is a Presidential form ofdemocratic set up wherein the President is directly elected and is verypowerful in matters relating to administration of the country. Even in ademocratic country like the U.S., the power of the States is not at allsnatched away by the Federal Government. The rights of the residentsor citizens of the State either in matters relating to education or relatableto jobs in the services of the State are very well protected, in the sense ofgranting better rights relating thereto within the State than that of therights given to citizens of the Federation.

11.32 The policy of the US is laissez faire policy. The standard of life of thecitizens of the U.S. is of a very high order. People without jobs are livingabove the poverty line and their number is negligible or more or less NIL.Therefore the Constitution framed therein is right-based one. There is afew or NIL restrictions in respect of fundamental rights inhering in favourof the citizens and as such the constitutional provisions create aconducive atmosphere for the establishment of a capitalistic society.

11.33 But the Indian Constitution is a goal-oriented Constitution. It is notleaning in either of the extremes – establishment of a capitalistic societyor of a communist order. To enable it to establish a society in betweenthese two extremes, i.e., socialistic society with egalitarian aims, thereasons are manifold. India is the one and only country at the globallevel wherein pernicious caste system has been in vogue for timeimmemorial, apart from the practice of Untouchability with regard tocertain sections of the society. These things apart, wealth isconcentrated in a few hands of the hierarchy of higher castes and amajority of people are below the poverty line. Most of the people livingbelow the poverty line are persons suffering from caste stigma of


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belonging to lower gradation of castes in the society. The varna systempractised here created a gradation of status between them and thatapart, ordains are prescribed on the professions to be engaged in. Inthe pyramid of different caste system, the hierarchy of higher castesoccupying top positions in the pyramid where exclusive privilege ofeducation and consequently they were provided with the opportunity ofknocking away the white-collared jobs in the country. More than 50% ofthe earnings of the State, it appears, has been spent in the disbursementof the salaries to its servants, and such salary from the income of theState is likely to go to the coffers and pockets of hierarchy of highercastes to the entire exclusion of the downtrodden sections of the State inthe absence of reservation to BCs, SC and ST.

11.34 In framing the Constitution for any country, factors like historical,sociological and economic and other relevant factors and situationsprevailing then in the country were to be taken into consideration to setup the type of government needed to be established for a societal orderin the country. A cursory perusal of the Preamble and the DirectivePrinciples, Fundamental Rights Chapter, and other provisions in theConstitution will reveal that the goal of the Constitution is to attain asocialistic pattern of society, egalitarian in character, in the sense ofavoiding the concentration of assets in a few hands and lifting thedowntrodden sections of the society – backward classes in this case – toa level playing field with all immordial and inalienable fundamental rightsnormally made available to the citizens in a democracy. As such, theconcept of capitalism is anathema to the goal of our Constitution.

11.35 The introduction of Liberalization, Privatization and Globalization [LPG] inthis country is a sly move of the vested interests belonging to thehierarchy of higher castes in rather a bid to abolish or take away thereservation policy hitherto having been followed in the services under theState. The act of the Union Government in establishing a NationalCommission for Higher Education and Research by the introduction ofthe National Commission for Higher Education and Research Bill, 2010 –which is now put on hold – utilizing the power inhering in its favour underthe various provisions of the Constitution – as had already been referredto – the scheme of distribution of powers between the UnionGovernment and the States in rather a bid to snatch away the powersinhering in the States relatable to education under the façade of “nationalinterest” and to invest such powers in the hands of panchamurtisCollegium members giving them full authority in the matter ofappointment of Chairperson and Members of the Commission and in thematter of selection and appointment of Vice Chancellors of allUniversities in India and Head of Institutions of national importance, andfor determination, coordination, maintenance of standards in andpromotion of higher education and research including university


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education, technical and professional education – which, in the verynature of things cannot at all comprise of persons other than personsbelonging to hierarchy of higher castes – will only deprive thedowntrodden masses of this country viz., the Backward Classes and theScheduled Castes and Scheduled Tribes of the benefits of reservation inhigher education and institutions.

11.36 If the National Commission for Higher Education and Research Bill, 2010is allowed to be enacted by the Union Government, the rights of thepeople of the State in getting higher education and getting admission inUniversities for science and technology courses or for professionalcourses like engineering or medicine will be once and for all thrown towinds. The further consequence to be ensured therefrom is that theremight not be any availability of people from the State for gettingemployed in top-notch posts not only in the fields of technology andscience but also in the fields of medicine and engineering which, in theeventuality of all probabilities, is likely to increase with the growth of theState at an alarming level. Any in-surmounting obstacles in Universityeducation are likely to rise. The first obstacle is the medium or languageof instruction to be adopted for teaching the various post-graduatestudies in the Universities to be established under the aforesaid Act. TheConstitution of India contains provisions relatable to official languages ofthe States and the Centre. There is no “national language” at all ashaving been provided for in the Constitution of India. Hindi, thoughspoken by majority of the people of the country, is not the “nationallanguage”. It is not as if Hindi is the only language spoken to in all theStates in India. Very many languages are being spoken to and suchlanguages became not only the official language of those States but alsooccupy the position of the medium of instruction in their schools.Besides, the official language is being introduced as the medium ofinstruction in colleges in the Southern States like Tamil Nadu, not only inscience and arts but also for courses in medicine and engineering,although English is generally used as the medium of instruction incolleges and Universities throughout India for all courses of studies. Ifone particular language, say Hindi, which is not the “national language” isto be prescribed as the medium of instruction in higher education by theCollegium contemplated under the Act, no one can prevent theintroduction of Hindi as the medium of instruction. The power that hasbeen granted under the Act in favour of the Collegium is so colossal andenormous that even the Union Government cannot have any say in thematter; Collegium is such an independent body, as already stated, withuntrammeled powers, by the enactment of an overriding provision in theshape of Section 50. If such sort of a situation comes into existence,pretty certain it is that, there is every likelihood of a rebellion that suchdictatorial powers having been granted to the Collegium, the UnionGovernment cannot take shelter by saying that it cannot interfere in the


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activities of the Collegium in view of the fact of the Collegium being anindependent authority under the Act.

11.37 Better it is, therefore, for the State Government to avoid such a pell-mellcatastrophic situation by the rebellion mood of the people of the State, toavoid such strong protests against the enactment of the Bill. Orotherwise, the State has to initiate measures for the amendment of theprovisions of the Constitution of India which, as already referred to, arelikely to snatch away the powers of the State in the matter of educationunder the façade of national or public interest by the Centre.

11.38 The American Constitution works well by following dual polity in creatingcitizenship of State as well as citizenship of U.S.A. By such dual polity,the rights of the citizens of the State are demonstrably superior to that ofthe citizenship of U.S.A. in the matter of getting admission in schools,colleges and Universities in the State besides getting recruited to theservices under the State. The option open to the State is to prescribecitizenship or residency in the State for getting admitted in educationalinstitutions or entering into State services.

11.39 In order to protect the rights of the people of the State, there is no needto create a dual citizenship in India, but it would be suffice to amend theprovisions of the Indian Constitution in such a way in not encroachingupon the rights of the State in all matters inclusive of education and theright to employment under the State except in circumstances where asituation has arisen in which the governance of the State cannot becarried on in accordance with the provisions of the Constitution as hasbeen contemplated by Article 356 of the Constitution of India.

11.40 The rights of the people of the States are often tampered upon by theUnion Government and reduce the States to the level of Municipalities orVillage Panchayats under the façade of high-sounding phenomenon of“national interest”. For example, reference may be made to Telenganaissue. The predominant Telugu speaking people in the Telengana regionwant a separate State for them to be created. This is a long-felt demandof those people. When the formation of a linguistic State is the order ofthe day in India, and when especially all the States have been formed onlinguistic basis, there is no meaning in refusing to create Telengana as aseparate State on linguistic basis. The formation of such a State ishaving its own advantages to the people of the State. It can beexplained with reference to certain recruitments sought to be made in thePolice as well as Judicial departments of the State of Andhra Pradesh.The people belonging to Telengana region made agitations demandingcertain percentage of posts in Police as well as State Judiciary to beseparately allocated for Telengana region. Such a demand had beennegatived on the sole ground that regional allocation in the matter of


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recruitment to the posts is not in tune with the Constitution and thereforethat the demand was rejected on such a ground. If Telengana State wasformed, there could have been no hurdle or obstacle in the matter ofrecruitment of people in the Police and Judiciary departments. Theentirety of posts in those departments could have been filled up byTelengana region people without any sort of a legal or constitutionalhurdle. In order to quell the agitation being taken to the streets, better itwould be, to maintain peace and tranquility in the area, to concede withthe people’s demand of establishment of separate Telengana State.

11.41 Even if Telengana State is formed, the trampling of rights of the people ofTelengana region by the Union Government as relatable to matters ofgaining admission in educational institutions as well as in entering intothe services under the State by resorting to an enactment like theNational Commission for Higher Education and Research Bill, 2010under the façade of “national interest” or “public interest” under therelevant provisions of the Constitution, is plausible or possible.

11.42 As such, in order to avoid a pell-mell, calamitous situation very oftenarising in this country in different States, the need of the hour is totransform by way of amendment of the unity nature of the Constitution toone of federal structure like the United States of America.

11.43 It can be concluded by saying that the very sanguine provisions just likethe ones that have been referred to in the earlier discussion shall beconsidered to be ones which would maintain and preserve the unity andintegrity of the nation at the time of framing of the Constitution, are nowproving to be antithesis to the very aim and purpose for which thoseprovisions were originally framed.


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12. RESERVATION UNDER TAMIL NADU ACT 45 OF 1994 -EXISTENCE OF QUANTIFIABLE DATA - JUSTIFIABILITYOR OTHERWISE THEREOF

12.1 On the 20th December, 1978, Shri Morarji Desai, the then Prime Ministerof India announced on the floor of the Parliament the decision to appointBackward Classes Commission under the Chairmanship of ShriB.P.Mandal and four other members.

12.2. The Commission started the work after the inaugural speech of ShriMorarji Desai, Prime Minister of India on the 21st March, 1979 and endedwith the valedictory address by Smt.Indira Gandhi , the then PrimeMinister of India on the 12th December, 1980.

12.3 The terms of reference of the Commission were :-

(i) to determine the criteria for defining the socially and educationallybackward classes;

(ii) to recommend steps to be taken for the advancement of the sociallyand educationally backward classes of citizens so identified;

(iii) to examine the desirability or otherwise of making provision for thereservation of appointments or posts in favour of such backwardclasses of citizens which are not adequately represented in publicservices and posts in connection with the affairs of the Union or ofany State; and

(iv) present to the President a report setting out the facts as found bythem and making such recommendations as they think proper.

In this connection, the Commission may also examine therecommendations of the Backward Classes Commission appointedearlier and the considerations which stood in the way of the acceptanceof its recommendations by Government.

12.4 The Mandal Commission evaluated the population of Other BackwardClasses [OBC] at 52%; the population of Scheduled Castes [SC] at 15%and the population of Scheduled Tribes [ST] at 7.5% both totalling22.5%.

12.5 The Supreme Court rendered a decision in M.R.Balaji v. State of Mysore[AIR 1963 SC 649] saying that the totality of reservation should alwaysbe less than fifty per cent and not even fifty per cent, i.e., the reservationmade in favour of OBC and SC/ ST put together should be less than 50%and in any circumstances, the reservation should not go beyond 50%.


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12.6 The Mandal Commission took into consideration the dictum laid down bythe Supreme Court in the matter of reservation, recommended forreservation of seats for the OBC in the Central services only to the extentof 27% after deducting 22.5% [SC = 15% and ST = 7.5%] from 50%which is the ceiling of reservation, and that perhaps was the reason thatthe Mandal Commission did not even venture to recommend reservationof 27.5% in favour of OBC though it evaluated the population of OBC at52%. The Union Government issued an Official Memorandum in O.M.No.36012/31/90-Estt.(SCT) Government of India, Ministry of Personnel,Public Grievances & Pensions (Department of Personnel & Training),dated the 13th August, 1990 reserving 27% of the vacancies in civil postsand services under the Government of India for Socially andEducationally Backward Classes [SEBCs] i.e., OBC, with a statementthat the candidates belonging to SEBCs recruited on the basis of merit inan open competition on the same standards prescribed for the generalcandidates shall not be adjusted against the reservation quota of 27 percent. It is further stated that the aforesaid reservation shall take effectfrom 7/8/1990. However, this will not apply to vacancies where therecruitment process has already been initiated prior to the issue of theseorders.

12.7 The Official Memorandum was issued by the Government of Indiagranting reservation of 27% to SEBCs to the extent of 27% vacancies incivil posts was challenged before the Supreme Court in Indra Sawhney &ors vs. Union of India and several other Writ Petitions. This case ispopularly known as the “Mandal case” or Indra Sawhney’s case reportedin 1992 SCC (L&S) Supp 1.

12.8 The Supreme Court expressly and explicitly said and laid down theproposition that the reservation to be made in favour of SEBCs in theCentral services can go far beyond 50% in certain extraordinarycircumstances and such reservation cannot be put in a straight-jacketthat it shall always be less than 50% as has been laid down in M.R.Balajisupra. The Supreme Court formulated the concept of “creamy layer” inthe matter of providing reservation to SEBCs in the services though aspecific provision traceable to such aspect of the matter is not foundadumbrated in any of the provisions of the Constitution.

12.9 Article 16(4), though formed part and parcel of the fundamental rightschapter, the Supreme Court laid down the dictum that it is not afundamental right but it is only an enabling right. The “creamy layer”concept, therefore, must be considered as an enabling right falling underArt.16(4). The manner and methodology of determination of a caste orcommunity or class falling within the groove of SEBC and the power ofthe State and the Courts of superior jurisdiction thereto has been earlierdiscussed in detail in this report. The power to prescribe creamy layer


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and the stage of its application has been vested in the State Governmentand similarly the power to test the reasonableness or otherwise thereof isvested in the courts of superior jurisdiction. The power of prescription ofcreamy layer by such courts even at the initial stage does not appear tobe correct. Further, at the time of prescription of creamy layer, thejudiciary had not at all been provided with or taken into consideration anydata for the prescription of creamy layer. All these aspects have earlierbeen discussed in a detailed fashion. However, the correctness orotherwise of such prescription of creamy layer cannot at all becanvassed and bypassed by this Commission till up to the review orreversal of such prescription of creamy layer which is binding on allauthorities under Art.141 of the Constitution of India. It may however bestated at this juncture that if the factual matrix of the case in a givensituation does not warrant the application of creamy layer concept, in thesense, a situation arising for the top most layer of SEBCs not entirelyknocking away the benefit of reservation leaving enough to the bottom-most layer of such class, there is no need at all for the application ofsuch a concept in preventing the entry of eligible SEBCs by making themineligible.

12.10 The decision in Indra Sawhney was rendered on 16.11.1992. In betweenM.R.Balaji in the year 1951 and Indra Sawhney in the year 1992, many adecision of the Supreme Court emerged regarding extent of reservationto be provided for SEBCs in the services under the State under Art.16(4)about which detailed discussion has been made earlier. However, thehues of views expressed by different Hon’ble Judges of the SupremeCourt may be referred to herein at the risk of repetition to explain theprobable reason why the nine-Judge Bench in Indra Sawhney went tothe extent of saying that reservation within 50% is not an inflexible ruleand it could go beyond 50%, quite contra to what the Hon’ble Judgessaid in M.R.Balaji.

12.11 This aspect of the matter has been dealt with vividly and elaborately byPandian,J. in Indra Sawhney which gets reflected as follows:-

“184. The question of percentage of reservation was examined in Thomas[State of Kerala v. N.M.Thomas - (1976) 2 SCC 310 @ 387-388, para 191]wherein Fazal Ali J., not agreeing with Balaji has observed thus:-

“….. clause (4) of Article 16 does not fix any limit on the power of theGovernment to make reservation. Since clause (4) is a part of Article 16of the Constitution it is manifest that the State cannot be allowed toindulge in excessive reservation so as to defeat the policy contained inArticle 16(1). As to what would be a suitable reservation withinpermissible limits will depend upon the facts and circumstances of eachcase and no hard and fast rule can be laid down, nor can this matter bereduced to a mathematical formula so as to be adhered to in all cases.Decided cases of this Court have no doubt laid down that the percentage


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of reservation should not exceed 50%. As I read the authorities, this is,however, a rule of caution and does not exhaust all categories. Supposefor instance, a State has a large number of backward classes of citizenswhich constitute 80% of the population and the Government, in order togive them proper representation, reserves 80% of the jobs for them, can itbe said that the percentage of reservation is bad and violates thepermissible limits of clause (4) of Article 16? The answer mustnecessarily be in the negative. The dominant object of this provision is totake steps to make inadequate representation adequate.”

185. Krishna Iyer,J., in the same decision has agreed with the above view ofFazal Ali,J, stating that “………the arithmetical limit of 50% in any one yearset by some earlier rulings cannot perhaps be pressed too far.”(SCC p.371,para 143).

186. Though Mathew, J, did not specifically deal with this maximum limit ofreservation, nevertheless the tenor of his judgment indicates that he did notfavour 50% rule.

187. Chinnappa Reddy, J., in Karamchari [Akhil Bharatiya Soshit KaramchariSangh v. Union of India – (1981) 1 SCC 246] has expressed his view on theceiling of reservation as follows:-

“…….There is no fixed ceiling to reservation or preferential treatment infavour of the Scheduled Castes and Scheduled Tribes though generallyreservation may not be far in excess of fifty per cent. There is no rigidityabout the fifty per cent rule which is only a convenient guideline laid downby Judges. Every case must be decided with reference to the presentpractical results yielded by the application of the particular rule ofpreferential treatment and not with reference to hypothetical results whichthe application of the rule may yield in the future. Judged in the light ofthis discussion I am unable to find anything illegal or unconstitutional inany one of the impugned orders and circulars……”

188. Again in Vasanth Kumar [K.C.Vasanth Kumar v. State of Karnataka –1985 Supp SCC 714] Chinnappa Reddy,J reiterates his view taken inKaramchari in the following words : (SCC p.752, para 58)

“We must repeat here, what we have said earlier, that there is noscientific statistical data or evidence of expert administrators who havemade any study of the problem to support the opinion that reservation inexcess of 50 per cent may impair efficiency.”

189. x x x x

190. It should not be out of place to recall the observation of Hegde, J in HiraLal [State of Punjab v. Hira Lal (1970) 3 SCC 567] observing: (SCC p.572,para 8)

“The extent of reservation to be made is primarily a matter for the Stateto decide. By this we do not mean to say that the decision of the State is


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not open to judicial review. ….The length of the leap to be provideddepends upon the gap to be covered.” (emphasis supplied)

191. Desai, J in Vasanth Kumar expressed his view that in dealing with thequestion of reservation in favour of Scheduled Castes, Scheduled Tribes aswell as other SEBCs ‘Judiciary retained its traditional blindfold on its eyes andthereby ignored perceived realities.’ (SCC p.729, para 20)”

12.12 In K.C.Vasanth Kumar supra each of the five Judges gave their ownseparate but independent judgments.

12.13 What Justice E.S.Venkataramaiah said as to why this necessity arose forreservation of backward classes is relevant and it runs as under:“perhaps, not all inequalities can ever be rectified and it is certain thatsome can be rectified only by creating new inequalities and newgrievances.” By strict application of general equality what would be theresult; it will result in permanent injustice or permanent inequality. Thissort of a proposition was first enunciated by the Permanent Court ofInternational Justice in the famous case of Minority Schools in Albeniaetc. In that case, the Permanent Court of International Justice held thatthe application of perfect equality may result in inequality. Thereforeprotection is given in the form of reservation. It has been termed as“protective discrimination” or “compensative discrimination” and JusticeVenkataramaiah coined a new word “result-oriented discrimination”.Then, such a competition must be fair. Not only it must be free but itmust also be fair. The competition to be fair, we must have to givecertain weightage or certain handicaps or certain reservations for thosepersons who are hailing from such socially or educationally backwardclasses of persons and that is why the classification or reservation isprovided under the Constitution. While discussing this issue, JusticeVenkataramaiah said, “for generations, i.e., for thousands of years, somecommunities have been kept in the dark and they were not permitted tolearn.” Such a situation cannot be rectified in a short span of forty or fiftyyears but it has to go on for a number of years till the State comes to aconclusion that all of them have attained certain amount of advancement.Then, he says, “Inalienable rights cannot be earned posthumously.”“Social injustice always balances its books with the red ink”. What hemeans by saying so is that if we do not take proper protection orconsideration, it will result in revolution. According to him, caste is arelevant factor for consideration in determining the backwardness of aclass or caste.

12.14 Sawant, J. in the same case expressed his views in para 518 (page 256)which reads as follows:-

“ 518. To summarise, the question may be answered thus. There is no legalinfirmity in keeping the reservations under clause (4) alone or under clause


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(4) and clause (1) of Article 16 together, exceeding 50%. However, validityof the extent of excess of reservations over 50% would depend upon thefacts and circumstances of each case including the field in which and thegrade or level of administration for which the reservation is kept. Although,further, legally and theoretically the excess of reservations over 50% may bejustified, it would ordinarily be wise and nothing much would be lost, if theintentions of the Framers of the Constitution and the observations ofDr.Ambedkar, on the subject in particular, are kept in mind. The reservationsshould further be kept category and gradewise at appropriate percentagesand for practical purposes the extent of reservations should be calculatedcategory and gradewise.”

12.15 At the time when the decision in Indra Sawhney was rendered by theSupreme Court, the State of Tamil Nadu was having 69% reservation ineducational institutions as well as in the services under the State forBackward Classes of citizens and for persons belonging to ScheduledCastes and Scheduled Tribes.(i.e.,BC-30%; MBC-20%; SC-18%; andST-1% all totaling to 69%)

12.16 Various representatives of political parties and social Forumsrepresenting backward classes had requested the State Government toconsider all the ramifications of the Supreme Court judgment in IndraSawhney regarding reservation under Art.16(4) and take steps to maketheir interests bequeathed.

12.17 The State of Tamil Nadu, in order to protect the existing reservation of69% as stated earlier, passed the Tamil Nadu Backward Classes,Scheduled Castes and Scheduled Tribes [Reservation of Seats inEducational Institutions and of Appointments to the Posts in the Servicesunder the State] Act, 1993 [Act 95/1994] which received the assent of thePresident of India on the 19th July 1994. Section 5(1) of the said Actprescribes,

“5(1) Notwithstanding anything contained in any judgment, decree or order ofany court or other authority, having regard to the inadequate representationin the services under the State, of the Backward Classes of citizens and thepersons belonging to the Scheduled Castes and the Scheduled Tribes, whoconstitute the majority of the total population of the State of Tamil Nadu, thereservation for appointments or posts in the services under the State, for theBackward Classes of citizens and for the persons belonging to theScheduled Castes and Scheduled Tribes, shall be sixty-nine per cent.”

Thus, 69% reservation which was in existence had been protected by thesaid Act notwithstanding the decision of the Supreme Court in IndraSawhney restricting the reservation to 50%.

12.18 One Thiru S.P.Sampathkumar filed a Writ Petition in the Supreme Courtin W.P. No. 454/1994 challenging the validity of the Tamil Nadu Act 45 of


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1994. The petitioner also filed a prayer for stay of the implementation ofthe said Act. Some other writ petitions were also filed before theSupreme Court on the same grounds. The above said writ petition andthe other petitions connected therewith were taken up for considerationby the Supreme Court on 1.8.1994 and the matter was referred to aConstitution Bench. The Supreme Court did not stay the operation of theaforesaid Act.

12.19 However, the Supreme Court passed an interim order dated 18.8.1994directing the Government of Tamil Nadu to create additional seats inprofessional colleges to accommodate students who would have beenselected if the 50% rule was there instead of 69% rule. Such similarorders were passed every year in the subsequent years till up to 2010.W.P. Nos.454/94, 473/94, 238/95 and 35/96 came up before the FullBench of the Supreme Court comprising of the Hon’ble The ChiefJustice, and K.S.Radhakrishnan and Swatanter Kumar JJ., and theBench passed orders on 13.7.2010 which gets reflected as below:-

“Writ Petition (C) Nos.454/1994, 473/1994, 238/1995 and 35/1996:

The short question which arises for determination in these writ petitionsis, whether the quantum of reservation provided for in Tamil Nadu BackwardClasses, Scheduled Castes and Scheduled Tribes [Reservation of Seats inEducational Institutions and of Appointments to the Posts in the Servicesunder the State] Act, 1993, is valid?

The impugned Act received the Presidential assent on 19th July, 1994.

Subsequent to the filing of the above writ petitions, Articles 15 and 16 ofthe Constitution have been amended vide Constitution [Ninety-thirdAmendment] Act, 2005, and Constitution [Eighty-first Amendment] Act, 2000,respectively, which Amendment Acts have been the subject matter ofsubsequent decisions of this Court in the cases of M.Nagaraj & ors vs. Unionof India & ors, reported in 2006 (8) S.C.C. 212 and Ashoka Kumar Thakurvs. Union of India & Ors reported in 2008 (6) S.C.C. 1, in which, inter alia, ithas been laid down that if a State wants to exceed fifty per cent reservation,then it is required to base its decision on the quantifiable data. In thepresent case, this exercise has not been done. Therefore, keeping in mindthe said parameter, we direct the State to place the quantifiable data beforethe Tamil Nadu State Backward Classes Commission and, on the basis ofsuch quantifiable data amongst other things; the Commission will decide thequantum of reservation. We are informed by learned Solicitor General thatsuch data in the form of Reports, which are subsequently prepared, isalready available.

Consequently, these writ petitions stand disposed of with a direction tothe State Government to re-visit and take appropriate decision in the light ofwhat is stated above. It needs to be mentioned that the interim orderspassed by this Court from time to time in relation to admissions to


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Educational Institutions shall continue to be in force and in operation for aperiod of one year from today.

In the circumstances, we are not expressing any opinion on the validity of1993 Act at this stage.

The Registry is directed to send the records and proceedings, if any,connected to these writ petitions back to the State.”

12.20 VOICE (Consumer Care Council) knocked at the doors of the SupremeCourt in W.P. (Civil) No.194/2006 impleading the State of Tamil Nadu asrespondent and sought a direction to the State of Tamil Nadu toimplement the directions of the Supreme Court contained in its judgmentdated 16.11.1992 in the case of Indras Sawhney in the context ofidentification and exclusion of the creamy layer from among thebackward class communities in the State of Tamil Nadu. The SupremeCourt, on 3.1.2011 passed an order as below on the petition so filed.

“The matter is squarely covered by our order dated 13th July, 2010 in WritPetition (C) No.259 of 1994 and others (including Writ Petition (C) Nos.454of 1994, 473 of 1994, 238 of 1995 and 35 of 1996). By the said order wehave directed the State of Tamil Nadu to collect and place the quantifiabledata before the Tamil Nadu State Backward Classes Commission and on thebasis of such data the Commission should decide the quantum ofreservation.

In the light of our order dated 13th July, 2010 in the above writ petitions, weare directing the Tamil Nadu State Backward Classes Commission also toexamine the grievance of the petitioner herein and, accordingly, decide thematter within the time bound programme given in our order dated 13th July,2010. In short, we hold that the facts of Writ Petition (C) No.194 of 2006 filedby VOICE (Consumer Care Council) against the State of Tamil Nadu standscovered by our order dated 13th July, 2010. Accordingly, the writ petitionstands disposed of.”

12.21 From what has been extracted above, it is thus crystal clear that the writpetitions filed before the Supreme Court challenging the constitutionalvalidity of the Tamil Nadu Act 45 of 1994 had been disposed of by theSupreme Court without expressing any opinion on the constitutionalvalidity of the said Act and the records relevant to such writ petitionswhich were available in the Supreme Court have been remitted back tothe State. While effecting such a disposal, the Supreme Court furtherreferred to its decisions in M.Nagaraj & ors vs. Union of India & ors,reported in 2006 (8) S.C.C. 212 and Ashoka Kumar Thakur vs. Union ofIndia & Ors reported in 2008 (6) S.C.C. 1 and stated that in thosedecisions “it has been laid down that if a State wants to exceed fifty percent reservation, then it is required to base its decision on thequantifiable data.” The Supreme Court further directed that “keeping inmind the said parameter, we direct the State to place the quantifiable


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data before the Tamil Nadu State Backward Classes Commission and onthe basis of such quantifiable data amongst other things, theCommission will decide the quantum of reservation.”

12.22 Even prior to the passing of the enactment viz., Tamil Nadu Act 45 of1994 admitted fact it is that the reservation in existence for BackwardClasses was to the tune of 50% and for the Scheduled Castes to thetune of 18% all totalling to 68%. The Tamil Nadu Second BackwardClasses Commission, popularly known as the Ambasankar Commission,was set up, pursuant to the orders of the Supreme Court, by the TamilNadu Government in G.O. Ms. No.3078, Social Welfare Department,dated 13th December 1982 under the Chairmanship of ThiruJ.A.Ambasankar, I.A.S.(Retd), former Chairman, Tamil Nadu PublicService Commission with 12 other members. Further, an addition ofeight members was made thereto and making a total of 21 members inall inclusive of the Chairman. The said Commission, within a time frameof two years, conducted the stupendous task of surveying five crores ofpeople, collected details relatable to social, educational, economical andother attendant factors inclusive of caste and submitted two reports tothe Government – one by the Chairman and the other by the majoritymembers constituting the Commission. After elaborate discussion of thereports prepared by the Chairman as well as the majority members’report prepared by them, in the Commission’s meetings held on 18th and19th February 1985, eventually, the Chairman called the members toattend the meeting on 26th February 1985 at the office of the Commissionto sign the final report.

12.23 While the decisions of the Commission had been completely unanimousin all the meetings of the Commission on four subjects there werediffering opinions. They were:

“(1) Limits to Reservation.—Whether the existing 50 per cent shouldbe continued or increased or whether it should be restricted to 32per cent for the Backward Classes.

(2) Deviation from the State average. — After a thorough examinationof the yardstick laid down by Balaji and Mandal Commission thisCommission had tentatively decided to have the divergence of 10per cent from the State average. All the tables were worked outon this basis and were available to the Members. It was then timefor them to take a final decision.

(3) Compartmental Reservation and (4) Preparation of one orseparate list for Article 15(4) and Article 16(4) – These subjectswere thrown open for discussion.”

Both the reports were submitted to the Government on 28.2.1985 forconsideration and action.


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12.24 Pertinent it is to refer to the passing of G.O.Ms. No.242, BackwardClasses Welfare, Nutritious Meal Programme and Social WelfareDepartment, dated 28.3.1989, bifurcating the reservation made in favourof Backward Classes to the extent of 50% only to two categories – onefor Backward Classes providing 30% reservation and the other for MostBackward Classes and Denotified Communities providing reservationupto 20%. The reservation thus in existence then under variouscategories was:-

Scheduled Castes and Scheduled Tribes .. 18%Most Backward Classes and Denotified Communities .. 20%Backward Classes .. 30%Open Competition .. 32%

In the year 1990, based on the directions of the High Court, Madras, inW.P. No.1692 of 1987, the Government issued orders in G.O. Ms.No.1090, Adi-Dravidar and Tribal Welfare Department, dated 22.6.90providing for 1% reservation for Scheduled Tribes taken from the 32%reservation then available under Open Competition. Thus, the 69%reservation had been in vogue in the State of Tamil Nadu since 1990.

12.25 The Tamil Nadu Act 45 of 1994 was framed, as already stated,subsequent to the decision in Indra Sawhney on 16.11.1992 in order topreserve and maintain 69% reservation then in existence.

12.26 It is to be pointed out here that at the time when the writ petitionschallenging the reservation of 69% filed before the Supreme Court cameto be disposed of, learned Solicitor General, it is said, informed theSupreme Court that such quantifiable data is already available. Thereference made by learned Solicitor General with reference toquantifiable data is traceable to the report of the Tamil Nadu SecondBackward Classes Commission headed by Thiru J.A.Ambasankar. Thelist of Backward Classes as prepared by the said Commission wascontinuously updated by the State on the recommendations made by thisBackward Classes Commission constituted on the mandate issued bythe Supreme Court in Indra Sawhney. Therefore, the list of BackwardClasses/communities as available in the State of Tamil Nadu is an up-to-date list as of now. The quantifiable data relatable to the representationin the services under the State were not available at the time of disposalof the abovesaid cases by the Supreme Court. The State thereforecalled for particulars from each and every Department under it regardingthe representation of all castes and communities irrespective ofbackward classes or otherwise from among the employees of the Statetotalling to about 12 lakhs. All such particulars collected by the State hadbeen sent to this Commission for consideration and evaluation of the


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effective representation of various communities and castes underArt.16(4). For comparison purposes, this Commission also called forparticulars from the Union regarding the representation of OtherBackward Classes in the Central services, by resorting to filing ofpetitions under the Right to Information Act. Pursuant thereto, particularsin respect of certain departments of the Union had been received in thisCommission.

12.27 The State also called for particulars regarding the representation ofBackward Classes in educational institutions and professional collegesdirecting that the particulars be sent directly to this Commission. Suchparticulars called for by the State had also been received by thisCommission.

12.28 Apart from the collection of such quantifiable data materials from thesources as indicated above, either furnished or obtained by the State orreceived by this Commission directly from the educational institutionsand professional colleges as per the directions of the State, quantifiabledata materials were also sought to be supplied by the State by placing somuch reliance on the report of the Tamil Nadu Second BackwardClasses Commission. The Commission had taken up on itself almost astupendous task of collecting data from several massive surveys. One ofthem was on a census basis covering one crore of households. The datacollected from this census gave a complete picture of the educationalattainments of the various communities together with their population.The entire information was computerized and the output tables enabledthe Commission after several permutations and combinations and after agood deal of trial and error, to arrive at a rational scientific and verysatisfactory set of criteria for determination of educational backwardness/advancement.

12.29 For evaluating the social backwardness of all communities in the State ofTamil Nadu, the Commission undertook a one per cent Random SampleSurvey. Even this meant covering more than a lakh of households. Theitems surveyed included a wide range of subjects, for example, theassets and the liabilities, the income and expenditure of the households,the extent of indebtedness, the reasons for such indebtedness and thesource from which the loans were taken, the nature of employment, theparticipation of women in hard manual labour and the employment ofchildren in fields and factories, the marital status and the age atmarriage, the maternal and infantile mortality were also covered by thesurvey. There was also an exhaustive survey of the impact of thewelfare measures. The social customs, usages and prohibitions amongthe various backward communities were also gathered. Such exhaustivedata formed the formidable base of the Commission’s analysis of socialbackwardness.


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12.30 For purposes of evaluating the adequacy or otherwise of representationsof the various communities in the services of the State, local bodies andpublic sector undertakings, a cent per cent survey of the employees ofthese three sectors was conducted.

12.31 Other adhoc surveys about school education, collegiate education,admissions to institutions of higher learning and selection by the TamilNadu Public Service Commission were also undertaken.

12.32 The analysis, with the help of experts in the field and the determination ofappropriate criteria, and indicators for backwardness was somethingunique that the said Commission had completed.

12.33 The said Commission, on a rational and scientific basis had actuallydecided the backwardness or otherwise of all communities answeringthese criteria and indicators and had given an impressive and exhaustiveset of tables in support of every conclusion in the report. The saidCommission of course collected mountains of data. It had utilized only atiny fraction of it, that portion that is necessary and sufficient for arrivingat reasonable, rational and convincing set of criteria for the determinationof social and educational backwardness. The rest of the data will provea mine of information for any planner or administrator. A probingresearcher might find in it fruitful sources of material for drawing thesocial and educational picture of the State of Tamil Nadu. All suchdetails and information voiced by the Chairman Thiru J.A.Ambasankar inthe Foreword minuted by him.

12.34 The Members of the said Commission, it appears, did an intensivetouring of all the district centres for more than thirty days, heard andrecorded the evidence of more than 2000 witnesses. Two seminarswere held, one at Madurai where Members and experts in various fieldsmet and exchanged ideas about the identification of backwardness andhow to improve the lot of the unfortunate backward classes. Very helpfulconclusions were arrived at as a result of these deliberations.

12.35 During the course of the stupendous and delicate work of the saidCommission, many legal questions, it appears, had arisen. To clearthem a seminar was arranged at Chennai under the Chairmanship of thevery able and erudite scholar and retired Chief Justice Hon’ble ThiruRamaprasada Rao. Besides learned advocates presenting papers inwhich they gave free expression and deep thought to the subject, theseminar helped the Members of the said Commission to clear many oftheir doubts.


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12.36 A census survey of 500 lakh of inhabitants of the entire State of TamilNadu was conducted. More than 25000 employees of the StateGovernment and local bodies were hand-picked, specially trained andput on the job. The items gathered by this census survey were larger innumber when compared to the survey conducted by the Government ofIndia, as the Chairman of the said Commission would say. The saidCommission also collected population figures and the entire educationpicture of each and every member of all the inhabitants of nearly 5 crore.The figures so collected were analysed in record time and output tableswere placed in the hands of the Members.

12.37 To determine the social backwardness, exhaustive information about alakh of families in the State were collected through a random samplesurvey for approximately one per cent households in the State. Thecomputerized tables relating to the sample survey were also handed overto the Members.

12.38 More than 8.5 lakh employees of Government/Local Bodies and PublicSector Undertakings were enumerated with full details of the nature oftheir job, their salary, their qualification and the community to which theybelonged. The Members were supplied with the relevant tables of thesurvey.

12.39 Many adhoc surveys were also conducted. About 2000 schoolsfurnished particulars about their students. All the 232 colleges suppliedinformation about those undergoing studies. The particulars aboutadmission to professional colleges like medicine, engineering, law andveterinary for the past three years were also collected. The details ofrecruitment made by the Tamil Nadu Public Service Commission weregathered and enumerated. The impact of the welfare measures of theGovernment executed by the Backward Classes Department was alsostudied in detail. From a cursory glance of the large number of tablesprepared by the Commission it could be pointed out how the Commissionhad exhaustive information on all issues – social and educational – not tospeak of the economic conditions of the people. Based on the mountainof statistics so gathered and the evidence of 2000 and odd personsrecorded during the sittings and the deliberations in the two seminars,the draft recommendations were given to the Members for the purpose ofhaving a detailed discussion. The Members were also told that theywere free to express their views without any reservation. The Chairman,it appears, had pointed out that differences would be reconciled andrational decisions would be arrived at.

12.40 The materials as stated above have been collected from the separatereport of the said Chairman’s recommendations.


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12.41 On an analysis of the materials so collected, the majority Members of theTamil Nadu Second Backward Classes Commission prepared andpresented a separate report containing their recommendations. Themajority Members of the Commission in their report expressed the viewthat the reservation for Backward Classes should be 67% which isproportionate to their population or at least the then existing level ofreservation for them at 50% contrary to what the Chairman of theCommission said that the totality of reservation in accordance with thedictum of the Supreme Court should be not exceeding 50% byreservation to BCs has been kept at the level of 32%, keeping in view thereservation to be made to SC at 18% which is proportionate to theirpopulation making the totality of reservation to the extent of 50%.

12.42 The Chairman of the said Commission in his recommendations added aspecial note on Mond Golla which gets reflected at page 23 thereof, asnoted below:-

“ The community ‘Mond Golla’ finds a place both in the list of BackwardClasses throughout the State of Tamil Nadu (Item No.119) and in the list ofMost Backward Classes throughout the State of Tamil Nadu (Item No.20) inthe Annexure to G.O. Ms. No.72, Social Welfare Department, dated 1st

February 1980. In the printed list of communities where code numberswere given for surveys, ‘Mond Golla’ has been given Code No.120 amongthe Most Backward Classes and ‘Yadavar’ of whom ‘Mond Golla’ forms parthas been given Code No.279. Census results have been separatelytabulated for these two items. It is only fitting and proper that the figures for‘Mond Golla’ (Code No.120) should be merged with those of ‘Yadavar’(Code No.279) which forms part of it. This has been done accordingly.”

12.43 Besides, the Chairman had also made a specific Note in respect ofcertain individual entries relatable to “Eravallar” and “Koravars/Koachas”.Such specific Notes are traceable to page 26 of his report as gettingreflected below:-

“(5) Specific notes in respect of certain individual entries:-(a) Eravallar (Code No.108) is treated as a Scheduled Tribe through the

State of Tamil Nadu. Hence not included in this revised list.(b) All Koravars/Korachas in the list of Denotified communities (including

Koracha in the list of Backward Classes besides Veppur Parayar andVenganur Adi Dravidar have been dropped as per contents of item (1)indicated above.

(6) New communities are added as per the final recommendations of theCommission.”

The Chairman also recommended for the deletion from the existing list ofBackward Classes as being ineligible for reservation which is gettingrevealed by the Table appended to his report at page 36 under the


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caption “Ineligible for reservation Nu (1) Table – Existing BackwardClasses”. The majority Members of the Commission prepared aseparate list of recommendations. The reason why the majorityMembers of the Commission prepared a separate report containing theirrecommendations is traceable to the preamble portion of their reportwhich gets reflected as under:-

“ The Tamil Nadu Second Backward Classes Commission has beenconstituted by the Government with twenty one Members including theChairman. No special status was ascribed to the Chairman different fromand above that of any other Member, as per the order constituting thecommission. Experts in the field have also given the opinion that the view ofthe majority Members including the Chairman will be taken as the view of theCommission, even though the Chairman is opposed to that view. In theSecond Backward Classes Commission almost all the Members are havingthe same view on all vital issues in determining the backwardness of thepeople, whereas the Chairman holds an independent view. Butunfortunately the Chairman has been trying to maintain and to pass of hisindividual view as the view of the Commission and the other Members canonly record a dissenting note to his report. The Chairman has divulged histrue colour only towards the fag end of the tenure of the Commission. Hehas taken the Members for a ride and has not taken the Members intoconfidence regarding the results of the survey, which came to his possessionseveral months ago. The Chairman misled the Members by giving theimpression that he would incorporate the view of the majority of Members asthe Commission’s view. The application of the results of the survey was firstdisclosed to the Members during the third week of February so as to cripplethe Members in the discharge of their function. Most of the Members aredistinguished politicians with a high caliber of understanding the problems ofthe backward classes with sufficient expertise in the field besides vastexperience. Instead of discussing the policy in drafting the report beforehand and ascertaining the views of the majority, the Chairman has broughtout his report first and adopting the pressure tactics to obtain the signaturesof the Members on dotted lines in his report. Now every member hasrealized that the Chairman is putting the cart before the horse.”

This apart, there was a sharp division of opinion between the majorityMembers and the Chairman with reference to four subjects about whicha reference has been made in the earlier part of this report.

12.44 The “Plan of Action of the Commission” as contained in Chapter 2 ofVolume I at pages 4 and 5 indicates in clear-cut terms the methodologycontemplated for the enumeration of backwardness of “all castes” in theState of Tamil Nadu, the resultant product of deep thinking anddeliberation in a scientific manner. The Commission did not at all go intothe survey for identifying the socially and educationally backward classesby evolving the criteria or indices for such identification. It is worthwhileto note, as indicated earlier, the survey conducted for the purpose ofidentifying all such castes that were in existence in the State to provide


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succour and welfare to such sections of the society. The entire Chapter2, extracted here, is proof positive of the intention of the Commission forconferring the benefits on all deserving sections of the societyirrespective of their caste in a scientific manner. Chapter 2 runs thus:-

“CHAPTER 2

PLAN OF ACTION OF THE COMMISSION

2.01. On receipt of G.O.Ms.No.3078, Social Welfare Department, dated 13th

December, 1982, setting up the Commission, the Chairman assumed Officeon 17th December 1982.

2.02. In order to elicit public opinion, a questionnaire was designed, coveringa wide range of subjects touching the population of each community, itssocial status, its educational achievements, its share in public services, itseconomic progress, its housing conditions and its participation in FamilyWelfare. It was issued to the General Public. After receipt of replies to thisquestionnaire, the Commission programmed a tour of the entire State to hearall the public representatives and record their evidence.

SEMINAR ON BACKWARDNESS

2.03. In order to give the members of the Tamil Nadu Backward ClassesCommission, an exposure to modern thought on social and educationalbackwardness that form the main ingredients of Articles 15(4) and 16(4) ofthe Constitution, a seminar was arranged in the Madurai Kamaraj UniversityCampus. The main objective of this seminar was to start a well-informeddebate on the terms of reference of the Commission and establish a rapportbetween its members and academics. SpecialiST in Sociology, SocialSciences, Social History and Social Anthropology besides experts in the fieldof education as well as distinguished professors, research scholars,economiST and econometricians participated in the seminar. There was afree and frank exchange of views between the members of the Commissionand the experts in the various fields who participated in the seminar.

LEGAL SEMINAR

2.04. The main term of reference of the Commission was to review theexisting list of backward classes with reference to Articles 15(4) and 16(4)and other relevant provisions of the Constitution keeping in mind the variousdecisions of the Supreme Court. For such a review, a thorough grasp of therelevant Articles of the Constitution and the important decisions of severalHigh Courts and Supreme Court bearing on them is necessary. For thispurpose a seminar was arranged at Madras inviting leading practitioners ofLaw, JuriST and legal luminaries to discuss Legal points that have arisen forthe consideration of the Commission in reviewing the existing list ofbackward classes.


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SOCIO-ECONOMIC SURVEY STAGE—I POPULATION STATISTICS

2.05. The Commission was requested to make a scientific and factualinvestigation of the conditions of the backward classes. According to theSupreme Court’s order the commission’s work was to cover all suchquestions and issues as have a bearing upon the enumeration andclassification of the backward classes in the State and reservation inadmission to educational institutions as well as appointments in Governmentservice. For any meaningful analysis of the conditions of the backwardclasses or reservations of seats in educational institutions or forappointments in Government service, precise population of the backwardcommunities caste-wise is essential. It is found that enumeration ofbackward classes caste-wise was stopped as early as 1931. The latestcensus report does not furnish the population of backward classes caste-wise. The absence of such figures was indeed keenly felt by the previouscommissions who had to resort to projections over a long period of time – asmany as 50 or 60 years – to arrive at the population of the backwardcommunity adopting the uniform overall growth rate of the entire population.This projection suffers from two serious lapses. Projection over a long periodof time or over a wide area may not yield any reliable or accurate figure.Adopting the overall growth rate for the entire population for the projection ofthe population of backward communities whose growth rates might bedifferent, cannot ensure accuracy. It was therefore decided to embark upon acent per cent door-to-door enumeration for carrying out the directive of theSupreme Court for enumeration and classification of backward classes.

EDUCATIONAL STATISTICS

2.06. It is essential to know the strength of students now in schools andcolleges in the various classes. Since there are as many as 37,000 schools(primary, middle, high schools and higher secondary schools) in the State, a5 per cent Random Sample Survey of these schools was taken up forsurvey. A comprehensive questionnaire designed for issue to all the 232colleges and 7 Universities in the State to elicit information about thestrength of students in the various classes and also the considered opinionof the heads of these institutions on many questions touching theeducational achievements of backward communities and possible ways ofimproving them.

SOCIO-EDUCATIONAL-CUM-ECONOMIC SURVEY-STAGE II

2.07. For the identification of the backward classes with reference to thecriteria for educational and social backwardness, a purposive randomsample survey of 1 per cent of households was conducted.

EMPLOYEES’ SURVEY

2.08. For an analysis of the existing conditions obtaining in the employmentof backward classes under the State Government, a full scale survey wasfound necessary to determine the exact number of Government servants in


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each grade as on 1st July 1983. This survey also covered Local Bodies andState Government Public Sector undertakings. Detailed information and fullparticulars about the employees were obtained by addressing nearly 12,500Drawing Officers. Particulars of candidates selected for various services byTamil Nadu Public Service Commission during the years 1980, and 82 werealso called for.

REVIEW OF THE RESERVATIONS MADE TO BACKWARD CLASSSTUDENTS IN INSTITUTIONS OF HIGHER LEARING AND TECHNICALCOURSES

2.09. Detailed information was called for from the Director of TechnicalEducation, Director of Medical Education, Vice-Chancellors of the AnnaUniversity of Technology, Madras, the Agricultural University at Coimbatoreand the Director of Legal Studies about the candidates admitted in thevarious courses for the three years 1980, 81 and 82.

2.10. To assist the Commission in its deliberations the following committeeswere constituted;

EXPERT COMMITTEE

For identification of Backward Classes it is very essential to lay down criteriafor social and educational backwardness in conformity with court decisionsand Constitutional provisions. To help the Commission in determining suchcriteria a Committee of Experts was set up (vide Appendix 2).

EVALUATION COMMITTEE

Huge mass of data collected from various sources has to be analysedthrough sophisticated methods for arriving at acceptable conclusions. Forthis purpose, an Evaluation Committee (vide Appendix 3) consisting ofEconometricians, Statisticians and Educationists with research experiencehas been drawn up. This Committee had several sittings and drew updetailed procedures for the analysis of the data.

HOSTEL COMMITTEE

Exhaustive particulars were called for from the District Backward ClassesWelfare Officers and Wardens of the Backward Class Hostels. Theseparticulars relate to the sanctioned strength of the hostels, the numberadmitted and the location of the hostels. A Committee (vide Appendix 4)consisting of administrators, medical officers and nutrition experts has goneinto this question in all its aspects.”

41.The Chairman of the Commission, utilizing the materials gathered,prepared a Statement showing the indices and scores for the backwardnessof the communities in the State under different Tables. The Tables preparedby him were :-


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Alpha Table

Section A Most Backward ClassesSection B Backward ClassesSection C Backward Class communities of Kanniyakumari

District and Shencottah Taluk in TirunelveliDistrict.

Section D Denotified CommunitiesSection E Backward Classes communities of other

ReligionsSection F Backward Class communities with 1 or No

schedules canvassed in Stage II Survey

Beta Table(1) Communities not eligible because of non-eligibility under education

Beta Table(2) Communities which are not eligible because oflack of minimum score

Beta Table(3) Communities with 1 or No Schedules canvassedunder Stage II Survey but not eligible due towant of minimum score under education

Beta Table(4) Communities under Others

Gamma Table(1) Forward Communities eligible for inclusion in theBackward Classes List

Gamma Table(2) Forward Communities covered by Stage IISurvey only and found eligible for inclusion

Delta Table(1) Forward Communities enumerated in bothSurveys and found not eligible for inclusionunder Backward Classes List

Delta Table(2) Forward Communities covered by Stage IISurvey and found not eligible

NOTE :(1) ALPHA TABLE: Showing the indices and scores of the existingBackward Classes which are eligible for retention in the BackwardClasses list.(2) BETA TABLE : Showing the indices and scores of the existingBackward Classes which are not eligible for retention in the BackwardClasses list(3) DELTA TABLE: Showing the indices and scores of the existingForward Communities claiming inclusion in the Backward Classes listNOT ELIGIBLE FOR INCLUSION.(4) GAMMA TABLE: Showing the indices and scores for the ForwardCommunities claiming inclusion in the Backward Classes list ELIGIBLEFOR INCLUSION.


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The Tables as aforesaid contain the following Columns:

(1) Serial Number(2) Code number of the community(3) Caste(4) Mainly Manual Labour(5) Women participation(6) Child Labour

Occupation

(7) Katcha House(8) Loans for subsistence(9) Loans from Pawn Broker

Poverty

SocialBackwardness

(10) H.S.S. and above(11) H.S. only(12) Dropout(13) Illiterates

EducationalBackwardness

Indices forBackwardness

(14) Caste(15) Occupation(16) Poverty(17) Total

Social

(18) H.S.S. and above(19) H.S. only(20) Dropout or Illiterates(21) Total

Educational

(22) Grand Total

Score forBackwardness

All the Tables as above are annexed in the APPENDIX to this Report.

12.45 The Chairman of said Commission also prepared separate Tables for thepurpose of reservation under Art.15(4) as well as under Art.16(4).

12.46 The Chairman of said Commission also prepared another set of Tablestaking into consideration the Stage average as the basis for determiningthe social and educational backwardness as desired by the Members.Separate Tables have been prepared for the purpose of reservationunder Art.15(4). The details of the aforesaid Tables as contained at page44 of Chairman’s recommendations were:

A Backward Classes eligible for retention in the Backward Classes listB Backward Classes not eligible for retention in the Backward Classes listC Forward Classes that represented for inclusion in the backward classes

and found eligible for inclusion in the backward classes listD Forward Classes that represented for inclusion in the Backward Classes

but found not eligible for inclusion in the backward classes list


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According to the Members there is no need for preparing a separate listfor purposes of reservation of appointments under Article 16(4) and assuch no separate list has been prepared for reservation under Article16(4). There will be a common list for purposes of reservation underboth Articles 15(4) and 16(4) as desired by the Members of theCommission.”

These Tables as contained at pages 50 to 86 of the said Report of theChairman’s Recommendations are also annexed in the APPENDIX tothis Report.

12.47 The Chairman’s recommendations on the review of existing list ofBackward Classes are contained in pages 3 to 5 of his report ofRecommendations. It is extracted as below:-

“RECOMMENDATIONS

REVIEW OF THE EXISTING LIST OF BACKWARD CLASSES.

Principles and procedures:- It is useful to recapitulate the principles andoutline the procedures followed by the Commission in the review of theexisting list of backward classes and in disposing of the claims of forwardcommunities for inclusion in the list of backward classes prepared by theCommission.

Basic material:- G.O.Ms.No.72, Social Welfare Department, dated 1st

February 1980 contains the approved list of backward classes as anAnnexure. This forms the basis of analysis by the Commission.

Enumeration and classification of communities – Census survey – TheSupreme Court in Writ Petitions No.4995, 4996, 4997/80 and Writ PetitionNo.402/81 ordered that the reference to the Commission should cover allsuch questions as had a bearing on the enumeration and classification ofBackward Classes. The Commission was also required to make a scientificand factual investigation of the conditions of the backward classes. For thispurpose, a complete list of all the communities in the State including ForwardCommunities was prepared by the Statistics Department. All cases offorward communities that claimed inclusion in the list of Backward Classescontained in the references from Government and Director of BackwardClasses received till then were also included. The communities so compiledwere given code numbers. The Stage-I (Census) survey began on 1st July1983 with these materials.

Random sample Survey:- While this survey was on, petitions were receivedby the Commission from several communities for declaring them asBackward Classes. Similar requests were also made by some communitiesduring the sittings of the Commission. The Government sent a list of some


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more communities for evaluation. Since the Stage-I census had alreadystarted and was fast progressing these communities could only be includedand given code numbers in the random sample survey conducted by theCommission. They bear code Nos.951 to 986.

Addition of certain communities by Government:- In their D.O. letterNo.107210/BC 1.3/84-2, dated 14th December 1984, Government orderedthat in reviewing the existing list of Backward Classes the commission’sreport would also deal with all such questions and issues as having abearing upon the enumeration and classification of Backward Classes in theState with reference to Clause (viii) of the terms of reference. They alsopointed out that some additional entries were made to the Annexure ofG.O.Ms.No.72, Social Welfare Department, dated 1st February 1980.

In G.O.Ms.No.1409, Social Welfare Department, dated 12th May 1982,Government ordered that the term Labbai included Rowthar and Marakayar.Serial No.55 of the Backward Classes list was modified as “55. Labbaisincluding ‘Rowther’ and ‘Marakkayar’ (whether their spoken language isTamil or Urdu)”.

The Commission had already assigned to the communities Labbai,Marakayar and Rowthar Code Nos.802, 803 and 804 respectively. Since thesurveys contained figures about these three communities separately inpursuance of the Government orders they were clubbed together andanalysed.

Similarly, in G.O.Ms.No.2029, Social Welfare Department, dated 5th August1983, Government ordered the inclusion of Christian Nadar, Shanar andGramani in the list of Backward Classes. This inclusion was after thecommencement of Stage-I survey in which the Christian Nadar, Shanar andGramani were enumerated under converts to Christianity from BackwardClasses who were then among forward communities. However, in pursuanceof the G.O. a separate code number 986 was given in Stage-II survey forChristian Nadar, Shanar and Gramani and enumerated. The results thrownup in this survey were analysed for evaluation of the Christian Nadar, Shanarand Gramani under the backward class group.

Transferred Territories:- Kanniyakumari district and Shencottah taluk ofTirunelveli district were the territories transferred from the erstwhileTravancore State to Tamil Nadu during the State’s Reorganisation in 1956.These territories had a distinct culture of their own, followed customs andtraditions peculiar to their area and were highly advanced in education.Comparison of the 21 communities belonging and peculiar to the transferredterritories with reference to the average of the whole of Tamil Nadu will workto the detriment of these communities. They were therefore, treated as aseparate unit and their backwardness evaluated.

Peculiar cases:- In the course of the State II survey it was found that therewere communities with small population scattered throughout the Statewhich would not produce even one schedule for evaluation. There werecertain other communities which produced just one schedule which would


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not help in the proper appreciation of their social backwardness. TheCommission, therefore, decided to maintain the status quo ante of thesecommunities as far as their social status was concerned. Such communitiesif they score at least under one criterion/indicator under education they willbe eligible for inclusion/retention in the Backward Classes list.

Special Steps:- There was complete blackout about the social andeducational backwardness of eight forward communities which requestedinclusion in the backward classes list. Special steps were, therefore, taken toenumerate them under the guidance and control of the Special Officer(Statistics) of this commission of the rank of a Joint Director, Statistics. Thefigures thrown up in this Survey were also used for evaluation of thesecommunities.

Dictum of the Supreme Court:- The Commission followed the dictum of theSupreme Court that a community should be both socially and educationallybackward for eligibility for inclusion in the list of Backward Classes underArticles 15(4) and 16(4) of the Constitution.

Criteria and indicators for backwardness:- The following are the criteria andindicators for social and educational backwardness and assignment ofweightage:-

A. SOCIAL BACKWARDNESS

(1) Caste/Class accepted as socially backward.

(2) Occupational backwardness:- Caste/Class which mainly depends onmanual labour or unclean or regarding occupations for its livelihood.

(or)Caste/Class whose percentage of women engaged in manual labour is morethan that of the State by at least 10 per cent of it.

(or)Caste/Class whose percentage of children employed is more than that of theState by at least 10 per cent of it.

(or)(3)Poverty:- Caste/Class whose percentage of households living in Katchahouses is more than that of the State by at least 10 per cent of it.

(or)Caste/Class whose percentage of households taking subsistence loans ismore than that of the State by at least 10 per cent of it.

(or)Caste/Class whose percentage of households getting loans from money-lenders/pawn brokers is more than that of the State by at least 10 per cent ofit.


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B. EDUCATIONAL BACKWARDNESS

Level of educational achievement:- (1) Caste/Class whose percentage ofpopulation who have passed only the 10th standard or its equivalent is lessthan that of the State by at least 10 per cent of it.

(2) Caste/Class whose percentage of population who have passed thehigher secondary or its equivalent and above is less than that of the State byat least 10 per cent of it.

Extent of educational backwardness:-3 Caste/Class whole percentage ofilliteracy is more than that of the State by at least 10 per cent of it.

(or)Caste/Class whose percentage of dropout is more than that of the State byat least 10 percent of it.

Assignment of weightage:- Each of the indicators for social backwardnesswill be assigned 5 points. Each of the indicators for educationalbackwardness will be assigned 2 points—

Eligibility of the existing backward classes for retention in the list ofBackward Classes.- If any of the existing communities in the BackwardClasses list scores a minimum of 8 points out of the total of 15 points with atleast one score under each of social and educational backwardness it will beretained in the list. Otherwise it will get deleted.

Inclusion of Forward Communities in the Backward Classes list:- TheForward Communities applying for inclusion in the list of backward classesprepared by the Commission will not be given any marks for their caste asbeing higher in the hierarchy. Excluding this the total score comes to 12.Only such of those communities which score a minimum of 6 points with atleast one credit under each of the criteria for social and educationalbackwardness will be eligible for inclusion in the Backward Classes list. Theclaims of others will be rejected.”

12.48 The Chairman of the said Commission also made his recommendationsregarding the review of list of Backward Classes eligible for reservationof appointments under Art.16(4) of the Constitution which gets reflectedat page 5 of his recommendations as under:-

“RECOMMENDATIONS

REVIEW OF THE LIST OF BACKWARD CLASSESELIGIBLE FOR RESERVATION OF APPOINTMENTS

UNDER ARTICLE 16(4) OF THE CONSTITUTION.

Among those castes/classes who are declared as socially and educationallybackward those whose total representation in services (Government, LocalBodies and State, Public Sector Undertakings taken together) is less than


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the State average will be eligible for reservation of appointment under Article16(4) on quantitative basis. This is furnished in Lamba Table. Lamba Table(1) shows the castes/classes among the existing forward classes who qualifyto be considered as backward and who are eligible for reservation ofappointments under Article 16(4) on quantitative basis. These tables showthe Code number name of the community, population and ratio ofrepresentation.

Those castes/classes whose representation though above the Stageaverage is below it in at least two of the four groups to which the employeeshave been classified taking into account their scales of pay will be eligible forreservation of appointments on qualitative basis. The liST of suchcastes/classes belonging to existing backward classes and those belongingto the existing forward classes who have qualified to be considered asbackward are given in Mu (1) and Mu(2) Tables.

The Nu Table shows the castes/classes who are ineligible for reservation ofappointments under Article 16(4) as their existing level of representation bothquantitatively and qualitatively is adequate.

Certain communities who claimed to be included in the Backward Classeslist after the commencement of Stage I Survey could be included only inStage II random sample survey and were given code numbers 951 to 986.The data obtained from this Stage II Survey were utilized to determine Socialand Educational backwardness and, therefore, their eligibility for reservationin article 15(4) of the Constitution.

The sigma table shows the castes/classes among these forward classes whoare socially and educationally backward. Details about their employment inservices are not available as they were not separately included in the surveyof employees. The Government will have to collect the employmentparticulars and decide the question whether they are inadequatelyrepresented quantitatively or qualitatively and their eligibility for reservationof appointments under Article 16(4).”

12.49 Taking into consideration the report of the Recommendations of theChairman, the report of the Recommendations of the majority Membersof the said Commission, the State Government issued G.O. Ms.No.1564, Social Welfare Department, dated 30th July 1985 accepting thereport of the majority Members of the Commission and revising the list ofBackward Classes accordingly. The said revised List contains 201entries as Backward Classes.

12.50 The Tamil Nadu Second Backward Classes Commission enumerated thepopulation in the State of Tamil Nadu during 1983 District-wise. Theparticulars of District-wise population of Scheduled Castes, ScheduledTribes, Backward Classes and Others as enumerated by theCommission are as under:-


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District-wise Population of SC, ST, BC and Others enumeratedby the Tamil Nadu Second Backward Classes Commission (1983)

District SC ST BC Others Total %

Madras 477695 6555 1828234 1268552 3581036 7.2%

Chengalpattu 965993 50647 1975204 687897 3679741 7.4%

North Arcot 886260 96734 3094974 402538 4480506 9.0%

South Arcot 1133179 56525 2743818 443994 4377516 8.8%

Dharmapuri 283792 47985 1500981 221298 2054056 4.1%

Salem 570688 128626 2619180 207314 3525808 7.1%

Periyar 354428 16878 1643164 144936 2159406 4.3%

Coimbatore 503819 24090 2079756 489902 3097567 6.2%

The Nilgiris 168039 22259 365755 130614 686667 1.4%

Tiruchirapalli 700551 53916 2443680 491719 3689866 7.4%

Thanjavur 961735 6560 2751181 422708 4142184 8.3%

Pudukottai 194283 1818 884507 99835 1180443 2.4%

Madurai 709991 15679 3459618 473828 4659116 9.3%

Ramanathapuram 614966 6973 2667704 277320 3566963 7.1%

Tirunelveli 621450 12958 2433921 573351 3641680 7.3%

Kanyakumari 62048 6715 1079128 320297 1468188 2.9%

Total 9208917 554918 33570805 6656103 49990743 100.0%

% of population 18.42% 1.11% 67.15% 13.31% 100.0%

Population enumerated in the Census, 1981 48297456

From the Table above, it could be seen that the population enumeratedas found traceable to Census, 1981 is 4,82,97,456 while the populationenumerated by the Tamil Nadu Second Backward Classes Commissionin 1983 is 4,99,90,743. The difference between these two figures is17,00,287 which is the difference in population due to the expiry of twoyears from the Census enumerated in the year 1981 and the consequentincrease in population in the succeeding two years. That perhaps is thereason for the marginal difference in population figures to the tune of17,00,287.This shows the authenticity and dependability of theenumeration of the population of the State of Tamil Nadu belonging toScheduled Castes, Scheduled Tribes, Backward Classes and Others,conducted by the Tamil Nadu Second Backward Classes Commission.


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12.51 The Government issued orders in G.O. Ms.No.242, Backward ClassesWelfare, Nutritious Meal Programme and Social Welfare Department,dated 28.3.1989, providing for 20% reservation for Most BackwardClasses and Denotified Communities from out of the 50% reservationthen available for all Backward Classes leaving the remaining 30% forBackward Classes. However, separate lists of Most Backward Classesand Denotified Communities were maintained consequent on theissuance of G.O.Ms. Nos.1566 and 1567, Social Welfare Department,both dated 30th July, 1985. The aforesaid two Government Orders wereissued by the Government consequent on the recommendations madeby the Tamil Nadu Second Backward Classes Commission.

12.52 The enumeration of population of Scheduled Castes, Scheduled Tribesand Backward Classes by the Tamil Nadu Second Backward ClassesCommission, as already stated, is an authentic and dependableenumeration in view of the fact that it more or less corresponds with theenumeration made by the Census Department in 1981. Of the totalpopulation of the various communities in the State of Tamil Nadu,67.15% belonged to Backward Classes, 18.42% were Scheduled Castesand 1.11% were Scheduled Tribes, besides 13.3% represented ‘Others’

12.53 Even before the enactment of Tamil Nadu Act 45 of 1994, the reservationthen prevailing was 50% for Backward Classes, 18% for ScheduledCastes and 1% for Scheduled Tribes, the total of such reservation being69% in all. It could be seen from the above that even though thepopulation of Backward Classes was 67.15% the reservation made forBCs was only to the tune of 50% which is far lesser than their populationof 67.15%. The majority Members of the Tamil Nadu Second BackwardClasses Commission, at that time, pressed for 67% reservation toBackward Classes in proportion to their population, in the services underthe State under Art.16(4) as well as in admission in educationalinstitutions under Art.15(4) of the Constitution. It is to be noted here thatthe Scheduled Castes were given reservation of 18% in the servicesunder the State as well as in admission in educational institutions in theState of Tamil Nadu proportionate to their population, besides granting1% reservation to the Scheduled Tribes which is more or lessproportionate to their population, both in the services under the State andin the matter of admission in educational institutions. Art.16(4) is the oneand the only provision in the Constitution providing for reservation forBackward Classes which terminology, according to the Supreme Court,includes Scheduled Castes, Scheduled Tribes, Backward Classes andMost Backward Classes. Such being the case, it goes without sayingthat the Backward Classes population amounting to 67.15% of the totalpopulation deserves reservation proportionate to their population just likethe Scheduled Castes and Scheduled Tribes. But that sort of areservation of 67% was not at all given to the Backward Classes under


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the Tamil Nadu Act 45 of 1994 and instead, reservation to the extent of50% alone was granted both for the purposes of Art.15(4) and Art.16(4)of the Constitution notwithstanding the fact that quantifiable data asavailable then was justifying the reservation far in excess of 50% to thetune of 67%. Of course, the Preamble to the Tamil Nadu Act 45 of 1994did not refer to the statistical data relatable to the enumeration ofBackward Classes in the State of Tamil Nadu in the year 1983 whileproviding reservation for Backward Classes to the tune of 50%. If theState had duly applied its mind, reservation to the tune of 67% couldhave been given for the Backward Classes based on the quantifiabledata available then besides providing for 18% reservation for ScheduledCastes and 1% reservation for Scheduled Tribes which are proportionateto their population, all totalling to 86%. The prompting for making 69%reservation by the Tamil Nadu Act 45 of 1994 was due to the fact that theexisting reservation was to the tune of 69% then available in the State.Even at that time there was enough justification for making reservation of67% for Backward Classes, 18% for Scheduled Castes and 1% forScheduled Tribes, totalling to 86%. But the reservation actually made forBackward Classes under the said Act is only to the tune of 50% which isperfectly justified on the basis of the quantifiable data available then.

12.54 VOICE (Consumer Care Council) approached the Supreme Court ofIndia by filing Writ Petition (Civil) No.194 of 2006 seeking exclusion ofcreamy layer from the benefit of reservation in the matter of admission toeducational institutions and in the matter of employment in variousservices under the State of Tamil Nadu. The Full Bench of the SupremeCourt disposed of the above Writ Petition by observing as follows:-

“ The matter is squarely covered by our order dated 13th July, 2010 in WritPetition (C) No.259 of 1994 and others (including Writ Petition (C) Nos.454of 1994, 473 of 1994, 238 of 1995 and 35 of 1996). By the said order wehave directed the State of Tamil Nadu to collect and place the quantifiabledata before the Tamil Nadu State Backward Classes Commission and on thebasis of such data the Commission should decide the quantum ofreservation.

In the light of our order dated 13th July, 2010 in the above writ petitions,we are directing the Tamil Nadu State Backward Classes Commission alsoto examine the grievance of the petitioner herein and, accordingly, decidethe matter within the time bound programme given in our order dated 13th

July, 2010. In short, we hold that the facts of Writ Petition (C) No.194 of2006 filed by VOICE (Consumer Care Council) against the State of TamilNadu stands covered by our order dated 13th July, 2010. Accordingly, thewrit petition stands disposed of.”

12.55. No doubt true it is that the Tamil Nadu Act 45 of 1994 does not at allcontain any creamy layer exclusion provision.


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12.56 The concept of introduction of creamy layer originates from the principlethat the benefit of reservation are often snatched away by the top layer ofthe Backward Classes/ Castes leaving nothing to the bottom layer ofsuch classes or castes. This sort of a concept of creamy layer wasconceived to give succour and benefit to the backward classes in thesense of full benefits accruing from out of the reservation to be given tosuch backward classes and the intention underlying such a concept wasnot at all to deprive such classes of the benefits accruing out ofreservation.

12.57 The concept of creamy layer had been introduced by the nine-JudgesBench decision of the Supreme Court in Indra Sawhney and the relevantportion in the judgment occurring in paragraphs 791 and 792 areextracted as below:-

“791. On the other hand, the learned counsel for the States of Bihar, TamilNadu, Kerala and other counsel for respondents strongly oppose any suchdistinction. It is submitted that once a class is identified as a backward classafter applying the relevant criteria including the economic one, it is notpermissible to apply the economic criteria once again and sub-divide abackward class into two sub-categories. Counsel for the State of TamilNadu submitted further that at one state (in July 1979) the State of TamilNadu did indeed prescribe such an income limit but had to delete it in view ofthe practical difficulties encountered and also in view of the representationsreceived. In this behalf, the learned counsel invited our attention to Chapter7-H (pages 60 to 62) of the Ambasankar Commission (Tamil Nadu SecondBackward Classes Commission) Report. According to the respondents theargument of ‘creamy layer’ is but a mere ruse, a trick, to deprive thebackward classes of the benefit of reservations. It is submitted that nomember of backward class has come forward with this plea and that it willbecomes the members of forward classes to raise this point. Strong relianceis placed upon the observations of Chinnappa Reddy, J in Vasanth Kumar tothe following effect: (SCC p.763, para 72)

“….One must, however, enter a caveat to the criticism that thebenefits of reservation are often snatched away by the topcreamy layer of backward class or caste. That a few of the seatsand posts reserved for backward classes are snatched away bythe more fortunate among them is not to say that reservation isnot necessary. This is bound to happen in a competitive societysuch as ours. Are not the unreserved seats and posts snatchedaway, in the same way, by the top creamy layer of society itself?Seats reserved for the backward classes are taken away by thetop layers amongst them on the same principle of merit on whichthe unreserved seats are taken away by the top layers of society.How can it be bad if reserved seats and posts are snatched awayby the creamy layer of backward classes, if such snatching awayof unreserved posts by the top creamy layer of society itself is notbad?”


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792. In our opinion, it is not a question of permissibility or desirability of suchtest but one of proper and more appropriate identification of a class – abackward class. The very concept of a class denotes a number of personshaving certain common traits which distinguish them from the others. In abackward class under clause (4) of Article 16, if the connecting link is thesocial backwardness, it should broadly be the same in a given class. If someof the members are far too advanced socially (which in the context,necessarily means economically and, may also mean educationally) theconnecting thread between them and the remaining class snaps. Theywould be misfits in the class. After excluding them alone, would the class bea compact class. In fact, such exclusion benefits the truly backward.Difficulty, however, really lies in drawing the line – how and where to drawthe line? For, while drawing the line, it should be ensured that it does notresult in taking away with one hand what is given by the other. The basis ofexclusion should not merely be economic, unless, of course, the economicadvancement is so high that it necessarily means social advancement. Letus illustrate the point. A member of backward class, say a member ofcarpenter caste, goes to Middle East and works there as a carpenter. If youtake his annual income in rupees, it would be fairly high from the Indianstandard. Is he to be excluded from the Backward Class? Are his childrenin 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 afactory owner himself. In such a situation, his social status also rises. Hehimself would be in a position to provide employment to others. In such acase, his income is merely a measure of his social status. Even otherwise,there are several practical difficulties too in imposing an income ceiling. Forexample, annual income of Rs.36,000 may not could for much in a city likeBombay, Delhi or Calcutta whereas it may be a handsome income in ruralIndia anywhere. The line to be drawn must be for the entire country or agiven 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 caseof agriculturists, the line may have to be drawn with reference to the extent ofholding. While the income of a person can be taken as a measure of hissocial advancement, the time to be prescribed should not be such as toresult in taking away with one hand what is given with the other. The incomelimit must be such as to mean and signify social advancement. At the sametime, it must be recognised that there are certain positions, the occupants ofwhich can be treated as socially advanced without any further enquiry. Forexample, if a member of a designated backward class becomes a member ofIAS or IPS or any other All India Service, his status is society (social status)rises; he is no longer socially disadvantaged. His children get full opportunityto 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 asituation, his children are not given the benefit of reservation. For by givingthem the benefit of reservation, other disadvantaged members of thatbackward class may be deprived of that benefit. It is then argued for therespondents that ‘one swallow doesn’t make the summer’, and that merelybecause a few members of a caste or class become socially advanced, theclass/caste as such does not cease to be backward. It is pointed out thatclause (4) of Article 16 aims at group backwardness and not individual


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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 thepurpose and object of clause (4). (This discussion is confined to OtherBackward Classes only and has no relevance in the case of ScheduledTribes and Scheduled Castes).”

12.58 A deeper scrutiny of the extracts as above will indicate in a crystal clearfashion the agonizing situation created in the minds of the Hon’bleJudges comprising the nine-Judges Bench as to the imposition of therole of creamy layer. They themselves admitted that the drawing of aline for fixation of creamy layer is such a difficult and onerous task and toexplain this they have quoted certain examples with reference to theearning capacity of a carpenter employed in a foreign stores and also theannual income earned by a resident in posh cities like Bombay, Delhiand Calcutta as comparable to the income of persons living in rural partsof India. As such, it is crystal clear that the fixation of income criteria ofindividuals for the purpose of creamy layer serving as an exclusionclause from the backward classes cannot at all be one and the same forall the regions and States in a vast country like India. But the incomecriteria to be fixed for the purpose of creamy layer has to be devised onState to State basis by analyzing the existence of several factors whichshould be taken into consideration for the drawing of a line on a realisticbasis. If the line that is drawn is shorn of reality of the situation, prettycertain it is, the form of reservation that had been conferred upon thebackward classes is to be taken in its entirety. It will result in taking awaywith one hand what is given with the other. It will also tantamount toduping, doping and making the people live on promises of conferment ofreservation to the backward classes. The nine-Judge Bench itself said inexpress and explicit terms that the line so drawn must be a realistic onethat it should not take away the benefits that had been conferred uponsuch classes. If this sort of an exercise is required to be done, the Benchwould say, to confer this sort of a benefit of reservation, confer suchbenefits to the truly disadvantaged group of people in the backwardclasses without allowing the top most group of people in such backwardclasses deriving the entirety of benefits to themselves. The Bench doesnot indicate the methodology or procedure to be evolved in theapplication of the concept of creamy layer. However, in the subsequentdecisions of the Supreme Court, in M.Nagaraj and Ashoka Kumar Thakurmentioned supra, the Supreme Court has stated that qualitativeexclusion has to be done by the application of economic criteria forcreamy layer for the determination of the backward classes. What hasbeen further advocated is that the Government of India evolved certaincriteria for exclusion and the criteria so evolved may be adopted. Sayingso, it appears, is not in consonance with what has been stated in IndraSawhney supra by the nine-Judge Bench.


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12.59 This Commission by its letter dated 9.5.2011 requested the Governmentof India to furnish the statistical data, if any, either asked for or given bythe Government of India to the Supreme Court in M.Nagaraj & Ors vs.Union of India & Ors [W.P.(C) 61/2000 decided on 19.10.2008] and inAshoka Kumar Thakur vs. Union of India & Ors [W.P.(C) 265/2006decided on 10.4.2008].

12.60 The Government of India, Ministry of Personnel, Public Grievances &Pensions, Department of Personnel & Training, in their letterNo.43011/191/2011-Estt.(Res), dated 21.6.2011 informed that noinformation is available on such aspect of the matter. It appears that atthe time when Indra Sawhney was decided by the Supreme Court, nosuch statistical data were furnished by the Government of India. Acriterion, it appears, had been evolved by the Government of India onlysubsequent to Indra Sawhney.

12.61 The nine-Judge Bench decision in Indra Sawhney made an attempt todraw a line for the fixation of income limit for the application of creamylayer exclusion clause. While doing so, they said that the limit to beprescribed should not be such as to result in taking away with one handwhat is given by the other, i.e., the extent of reservation conferred uponany class should not at all be taken away by the application of creamylayer exclusion.

12.62 This Commission requested the Government of India, Ministry ofPersonnel, Public Grievances & Pensions, Department of Personnel &Training to furnish the statistical data if any available with theGovernment which showed that the population of persons falling withinthe creamy layer from the Other Backward Classes [OBC] populationwas equivalent to or more than 25% i.e., [52% being the population ofOBC as estimated by the Mandal Commission MINUS 27% being thereservation granted for OBC] of the total population of the country. TheMinistry has replied that no information is available with the Governmenton such aspect of the matter. The creamy layer concept has beenapplied without any statistical data based on the report of the ExpertCommittee constituted by the Government of India. This Commissiontook into account the data/particulars collected and gathered from theUnion Government and the State Government of Tamil Nadu for acomparative study to sift, analyse and scan as to how the reservationbenefits have reached the backward classes of citizens. Pertinent it is topoint out here that the Union has applied the creamy layer conceptbased on the report of the Expert Committee constituted by theGovernment of India as directed by the Supreme Court in the matter ofreservations. It is to be noted that as far as the State of Tamil Nadu isconcerned that subsequent to Indra Sawhney, the Tamil Nadu Act 45 of1994 had been enacted without making any provision for application of


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creamy layer. Right from 1994 till up to today the concept of creamylayer was not at all applied in the State of Tamil Nadu either foradmission in educational institutions or for appointment in the servicesunder the State. It has also to be mentioned here that thoughreservation provisions under Art.16(4) were available right from 1950since the inception of the Constitution of India, no reservation has beenmade in the Central services till upto 1992 when the decision in IndraSawhney was rendered by the Supreme Court. It is only subsequent toIndra Sawhney that reservation in the Central services was sought to beenforced, of course, with creamy layer. This Commission requested theGovernment of India to furnish particulars showing the trend inrepresentation of OBC in public services in the Union during the past 15years in the available Format with the Government of India. A replycame from the Union Government with particulars of representation onlyfrom the year 2004 onwards. It therefore appears that the Governmentof India applied creamy layer purely on the strength of the decision of theSupreme Court in Indra Sawhney without even having the necessary andrequisite particulars even before 2004.

12.63 The particulars of representation of SC, ST and OBC in the Centralservices as on 1.1.2004, 1.1.2005, 1.1.2006 and 1.1.2008 in a tabularstatement has been received from the Government of India. The Tableso received is reflected as under:-

Representation of SC, ST and OBC in the Central Government Services

Number of personnelSC ST OBCGroup As on

TotalNo. % No. % No. %

1.1.2004 80011 9744 12.2% 3311 4.1% 3090 3.9%

1.1.2005 81665 9652 11.8% 3489 4.3% 3838 4.7%

1.1.2006 114256 14719 12.9% 4408 3.9% 6028 5.3%A

1.1.2008 97951 12281 12.5% 4754 4.9% 5331 5.4%

1.1.2004 135409 19602 14.5% 6274 4.6% 3123 2.3%

1.1.2005 140686 19276 13.7% 6268 4.5% 3266 2.3%

1.1.2006 174965 26256 15.0% 9939 5.7% 6241 3.6%B

1.1.2008 140223 20884 14.9% 8004 5.7% 5562 4.0%

1.1.2004 2040970 344865 16.9% 136630 6.7% 106309 5.2%

1.1.2005 2041919 334374 16.4% 131915 6.5% 120249 5.9%

1.1.2006 2078929 340691 16.4% 142724 6.9% 132450 6.4%C

1.1.2008 1822326 286573 15.7% 127871 7.0% 147327 8.1%

1.1.2004 802116 147212 18.4% 53776 6.7% 26158 3.3%

1.1.2005 768793 140939 18.3% 53133 6.9% 33039 4.3%

1.1.2006 825279 153286 18.6% 58377 7.1% 43249 5.2%

D(excludingSweepers)

1.1.2008 706170 138466 19.6% 48728 6.9% 35468 5.0%


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Number of personnelSC ST OBCGroup As on

TotalNo. % No. % No. %

1.1.2004 91601 59320 64.8% 5368 5.9% 3340 3.6%

1.1.2005 81356 48175 59.2% 4023 4.9% 1834 2.3%

1.1.2006 83061 49279 59.3% 4560 5.5% 1603 1.9%Sweepers

1.1.2008 77295 39774 51.5% 4621 6.0% 2548 3.3%

1.1.2004 3058506 521423 17.0% 199991 6.5% 138680 4.5%

1.1.2005 3033063 504241 16.6% 194805 6.4% 160392 5.3%

1.1.2006 3193429 534952 16.8% 215448 6.7% 187968 5.9%

Total(excludingSweepers)

1.1.2008 2766670 458204 16.6% 189357 6.8% 193688 7.0%

1.1.2004 3150107 580743 18.4% 205359 6.5% 142020 4.5%

1.1.2005 3114419 552416 17.7% 198828 6.4% 162226 5.2%

1.1.2006 3276490 584231 17.8% 220008 6.7% 189571 5.8%

Total(includingSweepers)

1.1.2008 2843965 497978 17.5% 193978 6.8% 196236 6.9%

Source: Ministry of Personnel, Public Grievances and Pension, Government of India.

The last column of the above Table shows the percentage of reservationfor OBC in the various cadres of service. In Group A, the representationof OBC did not exceed 5.4%; in Group B the representation of OBC didnot exceed 4%; in Group C the representation of OBC did not exceed6.4% ; in Group D the representation of OBC did not exceed 5.2% ; inrespect of Sweepers the representation of OBC did not exceed 3.6%.The total representation of OBC excluding Sweepers did not exceed 7%and including Sweepers OBC representation did not exceed 6.9%. Thisindicates that the representation of OBC in the various cadres in theUnion did never exceed the maximum percentage as stated above andtheir representation is far below 27% which is the maximum percentageof reservation available to OBC. To put it otherwise, the representationof OBC in various cadres in the Union services was so far only in singledigits. It is appalling to note that the representation of OBC in cadres likeSweepers is not even more than 6.9% which itself is far below themaximum of 27% available for OBC.

12.64 There was no reservation in the services under the Union right from 1950till upto 1992 when the judgment in Indra Sawhney was delivered. TheConstitution, of course, conferred the benefit of reservation to theBackward Classes right from its inception in 1950. Though the Unionconferred such benefits to the Scheduled Castes and Scheduled Tribeseven from 1950, yet, such benefits were not conferred by the Union onthe Other Backward Classes for the reasons best known to them. Thereservation for OBC was made by the Union only subsequent to IndraSawhney. Even during the period when there was no reservation in theservices under the Union, the OBC put together happened to get


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recruited in the services under the Union to the extent of 14% in the saidservices. This aspect of the matter is getting revealed from the report ofthe Mandal Commission. After the introduction of reservation to OBC bythe Union subsequent to Indra Sawhney, it is rather a pity that thereservation benefits granted to them to the extent of 27% had beenreduced or dwindled to single digits as seen above. The reason for suchdwindling rather appears to be the application of creamy layer exclusionclause even at the initial stage of determination of Backward Classeswhich had already been decided by the application of relevant criteria bythe competent authorities.

12.65 A cursory perusal of the data as made available to this Commissionshows that the representation of SC in the services under the Unionmore or less reached 15% which is proportionate to their population. Inother cadres – particularly in the cadre of Sweepers – theirrepresentation is far in excess of the proportion of their population. Thereason is obvious. No persons other than the SC will be competing tobecome Sweepers, menials, etc. If these persons are not recruited, theremay not be Sweepers at all for doing such services. Nobody alsocomplains that they are enjoying the benefits of reservation more thantheir percentage of population in such cadres. A review of the datarelatable to Scheduled Tribes more or less shows the same trend. Thereason why the SC and ST population had carved out enough ofrepresentation in the services under the Union in these cadres is perhapsdue to the non-application of creamy layer to them. The minimalrepresentation of OBC in the various other cadres, it appears, is due tothe application of creamy layer.

12.66 This Commission called for data and particulars from the Union PublicService Commission [UPSC] of the recruitments made by them forvarious services under the Union. The UPSC also furnished the requisiteand necessary data and particulars called for by this Commission. Fromthe data furnished by them, this Commission is able to find out that theselection to Defence services for employment in various cadres ofOfficers is being done without following any reservation. The castebreak-up of candidates recommended for appointment through NationalDefence Academy / Naval Academy / Combined Defence Services(NDA/NA/CDS) Examinations conducted by UPSC during the periodfrom 2005-2006 to 2009-2010 has been culled out as below :-


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Caste particulars of candidates recommended for appointmentthrough NDA/NA/CDS Examinations conducted by UPSC

Number of candidatesST SC OBC GTYear Total

No. % No. % No. % No. %

2005-2006 1789 23 1.3% 35 2.0% 202 11.3% 1529 85.5%

2006-2007 1558 17 1.1% 40 2.6% 213 13.7% 1288 82.7%

2007-2008 1380 25 1.8% 42 3.0% 201 14.6% 1112 80.6%

2008-2009 1269 16 1.3% 48 3.8% 196 15.4% 1009 79.5%

2009-2010 1801 30 1.7% 44 2.4% 287 15.9% 1440 80.0%NDA - National Defence Academy; NA - Naval Academy; CDS - Combined Defence Services

Source: Union Public Service Commission, New Delhi.

The particulars regarding recruitment made by UPSC by conductingexaminations for services other than NDA/NA/CDS as above byfollowing reservation with exclusion of creamy layer were also receivedfor the period 2005-2006 to 2009-2010 as has been culled out below :-

Caste particulars of candidates recommended for appointmentthrough other Examinations (other than NDA/NA/CDS) conducted by UPSC

Number of candidatesST SC OBC GTYear Total

No. % No. % No. % No. %

2005-2006 1785 134 7.5% 266 14.9% 519 29.1% 866 48.5%

2006-2007 1602 111 6.9% 244 15.2% 503 31.4% 744 46.4%

2007-2008 2334 176 7.5% 360 15.4% 727 31.1% 1071 45.9%

2008-2009 2462 182 7.4% 373 15.2% 843 34.2% 1064 43.2%

2009-2010 2767 237 8.6% 453 16,4% 872 31.5% 1205 43.5%Source: Union Public Service Commission, New Delhi.

12.67 From the Tables as above, it is perceivable that people from sociallyadvanced sections have benefited to an extent of about 80% or more onall occasions in NDA/NA/CDS examinations, leaving lesser seats for thebackward classes, just because no reservation is followed. It is also tobe noted that about 45% of the posts have been taken away by thegeneral candidates in the examinations other than the defence serviceexaminations.


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12.68 It could be further seen that the estimates of National Commission forBackward Classes project that more than 52% of the total populationbelongs to socially and educationally backward classes. Census of Indiaenumerates the total of SC and ST population at 25%. The highercastes population is around 20%. It is vulnerable to note that 20% ofhigher castes have eaten away 80% of the seats in Defence ServiceExaminations, leaving only 20% for the rest of the 80% population.Similarly, the general candidates have benefited to the full extent of non-reserved seats. The participation of ST/SC/OBC in General seats is veryless, which also depicts how the 50% restriction is favouring the minoritypopulation to acquire more proportion of seats. These are goodindicators to show how the backward classes will be worst hit if thereservation is eliminated or its quantum is restricted to 50% in the Statewith creamy layer.

12.69 The caste particulars of persons selected for various posts throughRailway Recruitment Board [RRB] during the period from 2005 to 2009were also called for by this Commission. The Board, in turn, compliedwith the request made by this Commission and furnished the particulars.The particulars so collected had been tabulated by this Commission asbelow :-

Particulars of SC/ST/OBC candidates selected byRailway Recruitment Board, Chennai between 2005 and 2009

Number of candidates selectedFor General Seats For Reserved SeatsSl.

No. CategoryNos. % Nos. %

1 Scheduled Castes 102 2.5% 640 15.6%2 Scheduled Tribes 13 0.3% 969 23.5%3 Other Backward Classes 575 14.0% 769 18.7%4 Unreserved 1042 25.4% ** **

Total 1732 42.2% 2378@

@ Reserved seats include the posts filled through special recruitment for SC /ST.Source: Railway Recruitment Board, Chennai.

From the tabulation so made, it could be seen that the total number ofcandidates selected works out to 4100 and the representation of OBCselected for various posts under reserved seats works out to 769[18.7%].

12.70 As such, it is crystal clear that the representation of OBC in suchservices also is far below 27% reservation made available to suchcategories.


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12.71 This Commission called for particulars of personnel selected by the TamilNadu Public Service Commission [TNPSC] for appointment in theservices under the Government of Tamil Nadu between the year 2005and 2009. Such particulars have been furnished by TNPSC to thisCommission. From the particulars so furnished, it is seen that the totalrecruitments were made to the services under the State to the tune of6789. The number of BC candidates selected for State services worksout to 2027 [29.86%]; and the number of MBC/DNC candidates worksout to 1339 [19.72%]. Similarly, the total recruitments in SubordinateServices were made to the tune of 19422 and out of this, BC candidatesworks out to 5560 [28.63%] whereas the number of MBC/DNCcandidates works out to 3922 [20%].

12.72 The percentage of candidates selected from BC as well as MBC/DNC didnot at all exceed the percentage of reservation made available to suchcategories.

12.73 Under the General Turn, with regard to State Services, the total numberof candidates selected comes to 2109 and out of this, 355[5.2%] candidates were from MBC/DNC and 1377 [20.2%] were fromBC.

12.74 Similarly, under General Turn, with regard to Subordinate Services, thetotal number of candidates selected comes to 5936 and out of this, 1287[6.62%] candidates were from MBC/DNC and 4001 [20%] were fromBC.

12.75 The dictum laid down by the Supreme Court in Indra Sawhney is that thecandidates selected under General Turn – Open quota – on merit basiscannot at all be adjusted in working out the quota prescribed for variouscategories. As such, the candidates selected in General Turn fromMBC/DNC as well as BC cannot at all be adjusted against the reservedquota of such categories. Admittedly, creamy layer was not adopted bythe State Government during the years under consideration for theselection of candidates both for State services and the Subordinateservices. Because of the fact that creamy layer was not applied forrecruitment to State services and Subordinate services, adequaterepresentation of candidates belonging to MBC/DNC and BC wererecruited and the recruitment so made does not exceed the percentageof quota respectively reserved for such categories. This is an illustrationto demonstrate that the cut-off point for application of creamy layer is yetto arrive in the State of Tamil Nadu and that because of the non-application of creamy layer, the intended benefits of reservation atparticular percentage for various categories were to be achieved by themin the matter of admission in educational institutions including


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professional colleges like medicine and engineering and in appointmentsin the services under the State in all cadres raising their living standardsin an appreciable manner. If this state of affairs is allowed to continue,pretty certain it is that the Backward Classes would improve their socialstatus to the expected level so as to make them join the main stream oflife thereby achieving a level playing field more or less equivalent to theposition of the hierarchy of higher castes people.

12.76 Similar is the situation with regard to recruitments made by the TamilNadu Uniformed Services Recruitment Board [TNUSRB] and theTeachers’ Recruitment Board [TRB] during the period between 2005 and2009.

12.77 The stage for application of creamy layer in the State of Tamil Naduproviding reservation for MBC/DNC and BC in the matter of admissioninto educational institutions including professional colleges and in thematter of recruitment in the services under the State is not reached. Thisaspect of the matter has been very well established by the analysis of thedata available as of now in the sense that the percentage of reservationprovided for MBC/DNC and BCs has not crossed the frontiers ofreserved percentage quota intended for each of those categories asprovided under the Tamil Nadu Act 45 of 1994. In the services under theUnion the principle of creamy layer is applied at the initial stage detrimentto backward classes in the sense of deleting certain backward classes asnot backward classes which have already been deprived of reservationbenefits. By the adoption of such a procedure, meritorious backwardclass candidates who could have had the opportunity of getting selectedin the recruitment to the services under the State as well as in admissionto educational institutions including professional colleges are likely tolose the benefit of reservation. From among the left out candidates in thebackward classes, after the application of creamy layer, it is very likelythat those candidates may not possess the necessary and requisitequalification either for selection for the services under the State or foradmission in educational institutions including professional collegesthereby making it possible that the reservation quota for the intendedbackward classes may not get filled up. If such a situation arises, it goeswithout saying that though reservation benefits had been conferred uponthe backward classes, such reservation benefits are unable to be availedof in full measure by the backward classes. This sort of a situation hadbeen created in the Central services by the application of creamy layereven at the initial stage and that perhaps is the reason for the lowpercentage of representation, say, in single digits, of OBC in the Centralservices which is far below the permissible extent of reservation of 27%conferred on OBC. With the practice as of now adopted by the CentralGovernment in the recruitment of personnel in their services, it is likely


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that the entirety of reservation benefits conferred upon the OBC is likelyto be reduced to or watered down to NIL.

12.78 The Tamil Nadu Act 45 of 1994 has been in existence for 17 years since1994. The quota intended for Backward Classes and Most BackwardClasses / Denotified Communities at 30% and 20% respectively has notat all been availed of by them to the fullest extent, i.e., to say, they haveavailed of such reservation not exceeding the reserved quota intendedfor each of them, in the sense of not crossing the “lakshman rekha”.Therefore, the need for application of creamy layer exclusion did not atall arise so far in the State of Tamil Nadu. As such, the non-inclusion ofcreamy layer in the Tamil Nadu Act 45 of 1994 is of no consequence.

12.79 In such circumstances, it cannot at all be stated that the Tamil Nadu Act45 of 1994 prescribing reservation of 30% to Backward Classes, 20% toMost Backward Classes / Denotified Communities, 18% to ScheduledCastes and 1% to Scheduled Tribes suffers from any infirmity or lacunainasmuch as the data furnished by the Government fully justifies theextent of reservation provided to various categories mentioned above.


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13. STRATEGY AND SYNERGY FOR INCLUSIVE GROWTH

13.1. The Indian society is characterized by its highly rigid caste basedhierarchical structure, with its ascending order of privileges anddescending order of disabilities, with an overwhelming majority of it stillbeing backward – socially, economically, educationally and politically.

13.2 The Varna system divided the society into four classes/groups – theBrahmana, the Vysya, the Kshatriya and the Shudra in the early Vedicage as distinctly defined occupations. With the passage of time, theVarna system turned into castes and the Indian society got divided intonumerous castes / sub-castes. Gradually, caste grew into a rigid andcomplex system and thus also became the cause of social discriminationand economic inequalities.

13.3 Caste is decided based on birth and can never be changed. While aperson can change his religion and his economic status can fluctuate,his/her caste is permanent. The division of Indian society based on thefour Varnas which were initially considered to be interchangeable hadhowever become permanent in due course of time with graded statusamong them. The Brahmanas occupied the top-most position in thepyramid of caste system and the other varnas were in existence tosubserve the cause of the Brahmanas. The last division of varnas isthe Shudra. The pernicious caste system in India which has no parallelat the global level in any of the countries created equals and unequals inthe society. The unequal Shudras were denied the opportunity ofeducation and participation in public employment. The educationalopportunities and public employment were snatched away by theBrahmanas sitting at the top most layer of the pyramid to the exclusion ofothers and happened to occupy a dominant position.

13.4 Pandit Jawaharlal Nehru, the first Prime Minister while addressing theCongress Parliamentary Party on 2nd November 1954 stated,

“The conception and practice of caste embodied the aristocratic ideal andwas obviously opposed to democratic conceptions. It had its strong sense ofnoblesse oblige provided people kept their hereditary stations and did notchallenge the established order. India’s success and achievements were onthe whole confined to the upper classes, those lower down in the scale hadvery few chances and their opportunities were strictly limited. These upperclasses were not small limited groups but large in numbers and there wasalso diffusion of power, authority and influence. Hence, they carried onsuccessfully for a very long time. But the ultimate weakness and failing ofthe caste system and the Indian social structure were such that they


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degraded a mass of human beings and gave them no opportunities to getout of that condition educationally, culturally or economically. Thatdegradation brought the deterioration all along the line including in its scopeeven the upper classes. It led to the petrification which became a dominantfeature of India’s economy and life.”

13.5 It cannot at all be stated that the Indian Constitution does not recognizecaste at all. As a matter of fact, it does recognize caste and reference tocaste has been made in so many provisions of the Constitution thoughcaste is not defined. There is no provision traceable to the Constitutionon abolition of caste. Of course, there is a provision in Article 17 withregard to abolition of untouchability. Untouchability practised in anyform, it is said, is prohibited and is punishable. Just like that, there is noprovision in the Constitution regarding abolition of caste. Such being thecase, the implementing authorities of the Constitution sitting at the top ofthe corridors of power proclaim that the Constitutional ethos is for theabolition of caste. Reservation based on caste, if allowed to be followed,is likely to perpetuate caste system in India. This sort of an observationmade by them is unable to be digested. Hinduism de hors caste willonce and for all get deleted from the classification of religions. So longas Hinduism is there, one shudders to think of abolition of caste in India.

13.6 The Indian Constitution is neither leading towards capitalism norcommunism but occupies a middle position of establishing a social orderpreventing the concentration of wealth in a few hands and creating alevel playing field by persistently following the egalitarianism. Manysocial ideals are incorporated right from the Preamble, DirectivePrinciples of State Policy, Fundamental Rights and other provisions ofthe Constitution. The policy of reservation to backward classes anddowntrodden sections of the society is intended to bring them up to thelevel playing field by adoption of the policy of positive discrimination,which is not at all considered to be discrimination by these provisions ofthe Constitution. The implementing authorities of the Constitution in thiscountry buried social justice fathom deep by the interpretative analogyadopted by them. The founding fathers of the Constitution classifiedcertain rights as justiciable as fundamental rights under Part III andcertain other rights as non-justiciable adumbrated under Part IV DirectivePrinciples of State Policy. Notwithstanding such division, theimplementing authorities of the Constitution made a further division ofcertain inalienable basic human rights included as fundamental rightsunder Chapter III of the Constitution by the founding fathers by dissectingand bisecting Articles 15 and 16 and excluded clause (4) of Art.15 aswell as clause (4) of Art.16 from the purview of justiciable fundamentalrights and declared them as “enabling rights” (non-justiciable) with anulterior design of putting a spoke in the inclusive growth of this countryskillfully and dexterously in an invisible-visible fashion utilizing the


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technique of Constitutional interpretation. A cursory perusal of Art.15(4)and Art.16(4) will indicate the complete absence of any provision for theapplication of creamy layer in the implementation of policy of reservation.Nonetheless, the judiciary found the creamy layer concept as havingbeen adumbrated in those Articles. Things which were not there in theprovisions of the Constitution, the judiciary would say, as things havingbeen provided therein. In the same manner, what they would say is thatwith respect to matters which have been expressly provided for in theprovisions of the Constitution, they would condescend to descend andsay that they were either not there or that they are having the power tooverride the express and explicit provisions or to spell out somethingwhich is not there by the invocation of the plenary power under Art.142.A perusal of Art.142 indicates no such inherent power is traceable tosuch an authority. It is only by way of interpretative analogy they say thatthey get such a power to themselves. Similarly, the judiciary spelt out byinterpretation of Art.368, which contains the provisions relating to theamendment of the Constitution by the Constituent Assembly, that theConstituent Assembly of Parliament has no power at all to amend aparticular provision of the Constitution which, they say, as a basic featureor structure of the Constitution.

13.7 The basic structure theory has been found out by the judiciary from theGerman Constitution. A reference has already been made in a detailedfashion elsewhere in this Report. Clause (1) of Article 1 of the GermanConstitution provides that human dignity and self-respect is inviolable.To respect and protect such a right is the duty of the Government andone and all without any exclusion. Thus, it has been provided in theGerman Constitution that human dignity and self-respect is a basichuman right recognized as a fundamental right which is inviolable. Thereare other basic human rights recognized as fundamental rights underArticles 2 to 19 in the German Constitution.

13.8 The Indian Constitution does not at all say that the incorporation of anyprovision therein with respect to human dignity and self-respect whichare inviolable human rights. No doubt, there were very many basichuman rights adumbrated as fundamental rights in the IndianConstitution. The judiciary construed certain basic fundamental rights,incorporated as fundamental rights in the Constitution as inviolable,inalienable and unchangeable by way of amendment of the Constitution.The interpretative analogies as adopted by the judiciary with regard tovarious provisions of the Constitution, it appears, has buried socialjustice fathom deep to curtail the rights of the disadvantaged societywhich forms part and parcel of the three-fourth of the total population ofthis country. This sort of interpretation as projected by the judiciarystands in the way by creating obstacles in the process of inclusive growthof India.


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13.9 Inclusive growth is a broad concept covering economic, social andcultural aspects of development. It is often used interchangeably with asuite of other terms, including ‘broad-based growth’, ‘shared growth’ and‘pro-poor growth’. A growth, which is, broad-based across sectors, andinclusive of the large part of the country’s poor, disadvantaged, deprivedand excluded sections of citizens. Inclusive growth strategy suggeststhat people of all sections and regions get an opportunity to participate inthe growth process which implies engendering the policy design thatincludes the people who get excluded in normal course as also to makea variety of provisions and services accessible to all sections includingthose who got excluded so far. These are sections and regions whichhave remained relatively backward.

13.10 Constitution is a mother document depicting the nature of the polity to beestablished, policies and programmes to be followed and all suchmatters related to the governance of the country. Once a policy matter isdecided and incorporated as such in the Constitution by way of anamendment, the question that arises for consideration in such aneventuality is as to whether the power of judicial review can be invokedby the judiciary in such circumstances? The answer is an emphatic “No”.For inclusive growth to be nurtured and developed, the power of judicialreview, relatable to the amendment of the Constitution must not bevested with the judiciary. The judicial review may be allowed to continueso far as relatable to enactments made by the Parliament and theLegislatures of the States to test their Constitutional validity, in the sensethat whether such enactments have been enacted in consonance withthe provisions of the Constitution.

13.11 So long as Hinduism is there, castes will ever persist, inasmuch as bothare intertwined with each other in such a way that the one cannot survivewithout the other. Such being the case, the policy of reservation has tocontinue for quite a long period until a level playing field is achievedamong all the castes and communities in India. Such being the case, theState must have to announce a long term plan of continuing thereservation policy. In such circumstances, it would be better to use theInformation Technology and gather the latest data on caste-wisepopulation, their educational attainment, occupational achievements,wealth etc. and present this information to the nation for a well-informedand well-debated policy decision.

13.12 The Indian Constitution, in a nutshell, has been a social document andthe matter of reservation has to be considered as a key to socialreconciliation and power sharing.


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13.13 The original Constitution contained very many provisions to foster anddevelop social justice and the provisions so adumbrated therein hadbecome inoperative by the Constitutional interpretative analogy adoptedby the courts of superior jurisdiction of this country. Therefore, a relookand review of those decisions that emerged from the courts of superiorjurisdiction is called for in the interest of the Nation in order to fosterinclusive growth of India.

13.14 The Constitutional provisions as now in existence and the judicialpronouncements by the courts of superior jurisdiction relatable toreservation require a drastic change for a better and faster inclusivegrowth of the Indian society. The present Constitutional provisionsrecognize reservation for BC, SC and ST only in the matter of admissionto educational institutions and professional colleges as well as in thematter of appointments in the services under the State and the rest of thecitizens of the country are left in the lurch for whatever be the reason. Itdoes not appear to be a sound phenomenon or policy to be pursued in ademocracy. The goods and services available to a society must beshared equally proportionate to the population of all the categories suchas Scheduled Castes, Scheduled Tribes, Backward Classes and the restof the citizens. This sort of a proportionate sharing is necessary in asociety like India considering the fact that the population of the countryincludes the Hindus who form a majority therein with divisions of gradedstatus because of the practising of pernicious caste system forthousands of years and there is no plausibility or possibility of eradicationof such caste system and other sections of the society comprising ofMuslims and Christian minorities and others whose comparative strengthof population is far less to Hindus who should also be considered toshare the goods and services in equal proportion to their populationwithout any discrimination whatever as citizens of this country.

13.15 India is divided with graded status. Further, the amenities and facilitiesavailable are not at all made available in equal measure to one and all ofthe citizens to compete in the race of life. In such state of affairs, theequals and the unequals cannot be allowed to compete with each otheron equal footing. Until the people with graded status are brought to alevel playing field, the application of the principle of formal equalitycannot at all be followed. If proportional equality principle is followed,space will be provided for the unequals and the equals to competeequally in the race of life.

13.16 Formal equality is known as the Jeffersonian Concept of Equality; itstipulates that each individual is to be protected in the exercise of his civilliberties so that each is afforded equal opportunity to fulfill hiscapabilities. This concept leans in favour of liberty and tends to


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guarantee equality of opportunity, not the equality of achievement. Thisform of equality concedes that human beings are diverse and unequal inmost respects and that all such differences are irrelevant for purposes ofdistributing benefits and burdens among members of society. Thismodel seeks to treat men identically in public sector regardless ofinequalities in private situation.

13.17 Proportional equality is known as the Jacksonian Concept of Equality, itpostulates that it is not sufficient that law treats each person alike but thelaw should afford to each individual all those opportunities of basic naturewhich are important preconditions to the realization of the full value ofavailable liberties. People are equally entitled to all that facilitates theirdevelopment as rational persons. This concept of equality ensures, foreach individual, the existence of a broad class of external circumstancesthat facilitate full development and expression of the capacities involvedin rational life, and which afford unrestricted access to available goods.

13.18 Thus, while formal equality guarantees equality of opportunity and leansin favour of liberty, proportional equality tries to gain equality ofachievement which results in some infringement of liberty in order tosecure a maximum of equality of condition, without which it is argued thatopportunities cannot be equal. While formal equality has a negative orno role for the state, proportional equality necessitates a positive role forthe government so that equality of conditions or results is produced.

13.19 Although the concept of proportional equality tilts in favour of equality, itdoes not favour to eliminate liberty. The concept of proportional equalityis advocated by liberal democratic governments and writers who favour awelfare state, contending that statutory equality is meaningless unless alevel playing field is provided.

13.20 There is also a need to distinguish between economic and socialinequality. Social inequality is the result of discrimination perpetuated byinstitutional structures that over centuries have denied the possibility of areasonably human existence. This then leads to a deficit of culturalcapital which is the ability to use knowledge, gained from praxis andcontemplation, to both understand the world around us as well asarticulate a world view that defines our identity. All communities,therefore, accumulate cultural capital. But in hierarchical anddiscriminatory societies such as ours, certain kinds of cultural capital areprivileged over others because certain groups had access to society’saccumulated knowledge through education that was earlier denied to theuntouchables and the other backward classes, the deprived, and use thatto both comprehend reality better and also learn how to leverageknowledge as a mechanism of power.


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13.21 Proportional equality is nothing but equality of results. The application ofpreferred or formal equality may result in inequality. Hon’ble Mr.JusticeE.S.Venkataramaiah coined a new word “result-oriented discrimination”in K.C.Vasanth Kumar vs. State of Karnataka [1985 Supp SCC 714].

13.22 Proportional equality principle has been adopted in many countries. Theadoption of proportional equality system in a country like India where thepernicious caste system is practised, the goods and services will beshared by all categories of people in equal measure in a fair andreasonable manner creating no division among them. The application ofproportional equality principle may now be resorted to be explained bytaking into account the population basis of various categories of peoplesuch as SC, ST, BC and the rest of the citizens. The population ofbackward classes in the State of Tamil Nadu is now to the tune of 68%;the SC comprise of 19% and the ST are 1%, all totalling to 88%. Therest of the citizens who do not fall under the above categories works outto 12%. The reservation may be arrived and provided for to all suchcategories of people proportionate to their respective population both inthe matter of admission to educational institutions including professionalcolleges and in the matter of appointment in the services under the State.The result is, reservation may be provided to the tune of 68% for BC;19% for ST, 1% for ST and the balance of 12% allocated to the rest ofthe citizens. In providing such reservation, the quota for OpenCompetition as now in existence in the reservation policy followeddeserves to be dispensed with. It is not as if the Constitution contains aprovision for Open Competition. It is only a judge-made law by theSupreme Court. In providing for reservation to all such categories ofpeople proportionate to their respective population as stated earlier,within each category, preference may be resorted to be given to such ofthose people who are placed in an impecunious and indigentcircumstances i.e., in the lower strata in each category. After giving suchpreference in each category, the remaining percentage of reservationavailable in each category may be allowed to be enjoyed by theremaining people within the same category.

13.23 To bring about a clear-cut idea of proportionate reservation, it may beillustrated further by way of an example. For instance, for the category ofBC, 68% reservation is provided. From among the BC, such of thosepersons who are placed in an impecunious and indigent situation may begiven preferential treatment over the others in the same category in thematter of allocation of seats for admission in educational institutionsincluding professional colleges and for appointment to services under theState. If the impecunious and indigent people from among the BCgetting preferential treatment to the tune of, say, 18%, the balance of50% [i.e., 68% MINUS 18%] may be allocated for the rest of the BC only.


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Similarly, the allocation to each of the other categories such as SC, STand the rest of the citizens may be resorted to.

13.24 The greatest advantage in following this sort of a method of reservationi.e., proportional reservation, is, each of the categories will enjoy thebenefits of reservation to the extent provided to each category withoutthat being encroached upon by the other categories. To put it otherwise,there will not be any grievance from any of the categories for whomreservation is provided, that their quota or reservation has been usurpedor availed of by the other category and this will ensure equal distributionof reservation benefits to all the citizens of the country.

13.25 As to the dilution of excellence because of the policy of reservation beingfollowed, what the Government of India’s Oversight Committee on theimplementation of the new reservation policy in Higher Education said isrelevant and it is extracted as below:-

“That expansion necessarily means dilution of excellence is clearly a mythand is not substantiated by the actual ground experience of four decades ofimplementation of OBC reservation. Four case studies, from AndhraPradesh, Karnataka, Kerala and Tamil Nadu show how they haveempowered the OBC in this manner. Their experience would put paid to theargument that such a reservation would seriously impact quality. Ourexperience in each state has shown that the members of the OBC canbridge the gap between them and the general candidates, provided that theyare given the opportunity to compete on equal terms. The Committee feelsthat the present opportunity would enable the country to make major stridesin building a just and inclusive society.”

13.26 In a democracy, the State owes a duty to each and every citizen toprotect the interest of the individual citizens without any sort ofdiscrimination. In the adoption of proportional equality system ofreservation, such duty cast upon the State to protect each and everyindividual without discrimination is carried out, out and out giving asolidified satisfaction to each and every individual citizen, making each ofthem feel as a proud citizen of the country. Every citizen will feel that heis participating in each and every activity of governance of the country.Patriotic fervor will be created, induced and got embedded in the mindsof the citizens of the country. That will lead to creation of a situation ofbringing the “laws’ inaction”, that is to say, law-in-books, into “laws-in-action”, i.e., law in practice.

13.27 No wonder it is, proportional equality system of reservation, if followed, itis likely to create a level playing field among all sections of the society ina break-neck speed bringing mirth, blithe and happiness to one and all inthe country, enabling them to live in peace, tranquility and free fromtension besides inclusive growth at break-neck speed.


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13.28 The State of Tamil Nadu which has been a pioneer in every field ofactivity bringing succour and welfare to the people, may endeavour to putinto operation the proportional equality system of reservation suggestedabove, by launching measures of initiation of discussion and deliberationwith the Union Government and the rest of the States, to effectuate thenecessary and requisite amendment to the Constitution – besidesresorting to necessary and requisite legal remedies to review thedecisions of Supreme Court – as has been pointed out elsewhere in thereport – which created a stumbling block for the inclusive growth of India– to achieve the desired end.

[Justice Thiru M.S.JANARTHANAM]CHAIRMAN

[V.ELUMALAI]MEMBER

[Dr.V.M.MUTHUKUMAR]MEMBER

[Dr.R.THANDAVAN]MEMBER

[Prof.D.SUNDARAM]MEMBER

[DR.S.P.THYAGARAJAN]MEMBER

[KR.MURUGANANDAM]MEMBER

[J.CHANDRAKUMAR]Director of Backward Classes

WelfareEX.OFFICIO MEMBER

[A.MOHAMMED ASLAM]Commissioner of Most Backward

Classes and Denotified CommunitiesMEMBER-SECRETARY

(EX.OFFICIO)


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NOTE ON APPENDICES

Appendices contain two items of Statements. Both the two items of

Statements were prepared by the Chairman of the Tamil Nadu Second Backward

Classes Commission. The Statements relate to particulars of certain details

collected by the said Chairman regarding the populace of 5 Crores of people of

Tamil Nadu being put in various columns of the Statements for easy

understanding and analysis so as to identify the socially and educationally

backward classes of people from among all the citizens of the State. The entirety

of the criteria had been devised by the Chairman of the said Commission and the

Statements prepared on the basis of such criteria were circulated to the

Members.

The Members of the said Commission, after going through such materials

as furnished to them by the said Chairman, suggested certain minor deviations in

the criteria to be applied for identification of socially and educationally backward

classes of people. Besides, they also suggested for the existing list of Backward

Classes to be maintained without any omission.

The said Chairman, after taking into consideration the views of the

Members, prepared the Statements in the format suggested by the Members of

the said Commission. The figuring of two items of Statements in Appendices is

because of the deviations suggested by the Members.

tamilnadu report on justification of reservationobc

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