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

A Castes. Such instances are many and vary from region to region. The division of the society even among the other religious groups in this country between the high and low castes is only to be expected. Almost all followers of the non-Hindu religions except those of the Zoroastrianism, are converts from Hindu religion, and in the new religion they carried with B them their castes as well. It is unnatural to expect that the social prejudices and biases, and the notions and feelings of superiority and inferiority, nurtured for centuries together, would disappear by a mere change of religion.

52. The next issues arising out of this question is whether economic criterion by itself would identify the backward classes under Article 16 (4) and whether the expression "backward class of citizens" in the said Article would include "weaker sections of the people" mentioned in Article 46.

53. Article 46 enjoins upon the State to promote with special care, the educational and economic interests of the "weaker sections" of the people, and in particular, of the SCs/STs and to protect them from social 11 injustice and all forms of exploitation. The expression weaker sections" of the people is obviously wider than the expression "backward class" of citizens in Article 16 (4) which is only a part of the weaker sections. As has been discussed above, the expression "backward classn of citizens is used there in a particular context which is germane to the reservations in

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 901

54. However, the provisions of Article 46 should not be confused with thpse of Article 16( 4) and hence the expression "weaker sections of the pepple" in Article 46 should not be mixed up with the expression "backward class of cit~ens" under Article 16(4). The purpose of Article 16(4) is limited. II is to give adequate representation in the services of the State to that class which has no such representation. Hence, Article 16( 4) carves out a par- H

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

A ticular class of people and not individuals from the "weaker sections'', and the class it carves out is the one which does not have adequate representation in the services under the State. The concept of "weaker sections" in Article 46 has no such limitation. In the first instance, the individuals belonging to the weaker sections may not from a class and they may be weaker as individuals I only. Secondly, their weakness may not be the result of past social and B educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). Thus, not only the concept of "weaker sections" unde, c Article 46 is different from that of the "backward class" of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited purpose of the reservation and hence suffers from limitations, while the other is for all purposes under Article 46, which purposes are other than reserva- tion under Article 16(4). While those entitled to benefits under Article 16(4) D may also be entitled to avail of the measures taken under Article 46, the converse is not true. If this is borne in mind, the reasons why mere poverty or economic consideration cannot be a criterion for identifying backward clas- ' ses of citizens under Article 16(4) would be more clear. To the consideration of that aspect we may nov.' turn.

E 55. Economic backwardness is the bane of the majority of the people in this country. There arc poor sections in all the castes and co1nmunities. Poverty runs across all barriers. The nature and degree of economic backwardness and its causes and effects, however, vary from section to section of the populace. Even the poor among the higher castes are socially as superior to the lower castes as the rich among the higher castes. Their economic backwardness is not on account of social backwardness. The educational backwardness of some individuals among them may be on account of their proverty in which case economic props alone may enable them to gain an equal capacity to compete with others. On the other hand, those who are socially backward such as the lower castes or occupational groups, are also educationally backward on account of their social back- wardness, their economic backwardness being the consequence of both their social and educational backwardness. Their educational backward- ness is not on account of their economic backwardness alone. It is mainly on account of their social backwardness. Hence mere economic aid will not enable them to compete with others and particularly with those who

INDRA SAWHNEY v. U.O.l. (SA WANT, J.] 903

are socially advanced. Their social backwardness is the cause and not the consequence either of their economic or educational backwardness. It is necessary to bear this vital distinction in mind to understand the true import of the expression "backward class of citizens" in Article 16(4). If it is mere educational baclcwardness or mere economic backwardness that was intended to be specially catered to, there was no need to make a provision for reservation in employment in the services under the State. B That could be taken care of under Articles 15( 4), 38 and 46. The provision for reservation in appointments under Article 16(4) is not aimed at economic upliftment or alleviation of poverty. Articll' 16(4) is specifically designed to give a due share in the State power to those who have remained out of it mainly on account of their social and, therefore, educational and c economic backwardness. The backwardness that is contemplated by Article 16(4) is the backwardness which is both the cause and the consequence of non-representation in the administration of the country. All other kinds of backwardness are irr.elevant for the purpose of the said Article. Further, the backwardness has to be a backwardness of the whole class and not of some individuals belonging to the class, which individuals may be economi- cally or edcuationally backward, but the class to which they belong may be socially forward and adequately or even more than adequately represented in the services. Since the reservation under Article 16( 4) is not for the individuals but to a class which must be both backward and inadequately represented in the services, such individuals would not be beneficiaries of reservation under Article 16(4). It is further difficult to come across a "class" [not ini:livicluals] which is socially and educationally advanced but is economically backward or which is not adequately represented in the services of the State on account of its economic backwardness. Hence, mere economic or mere educational backwardness which is not the result of social backwardness, cannot be a criterion of backwardness for Article 16(4).

56, That only economic backwardness was not in the contemplation of the Constinition is made further clear by the fact that at the time the First Amendment to the Constitution which added clause (4) to Article 15 G of the Constitution, one of the Members, Prof. K.T. Shah wanted the elimination of the word "classes" in and the addition of the word "economi- cally" to the qualifiers of the term "backward classes". This Amendment was not accepted. Prime Minister Nehru himself stated that the addition of the word "economically" would put the language of the Article at H

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

A variance with that of Article 340. He added that "socially" is a much wider term including many things and certainly including "economically''. This shows that economic consideration alone as the basis of backwardness was not only not intended but positively discarded.

57. The reasons for discarding economic criterion as the sole test of backwardness are obvious. If poverty alone is made the test, the poor from all castes, communities, collectivities and sections would compete for the reserved quota. In such circumstances, the rusult would be obvious, name- ly, those who belong to socially and educationally advanced sections would capture all the posts in the quota. This would leave the socially and educationally backward classes high and dry although they are not at all represented or are inadequately represented in the services, and the so- cially and educationally advanced classes are adequately or more than adequately represented in the services. It would thus result in defeating the very object of the reservations in services, under Article 16(4). It would, also provide for the socially and educationally advanced classes statutory reservations in the services in addition to their traditional but non-statutory cent per cent reservations. It will thus perpetuate the imbalance, and the inadequate representation of the backward classes in the services. It is naive to expect that the poor from the socially and edcuationally backward classes would be able to compete on equal terms with the poor from the socially and educationally advanced classes. There may be an equality of opportunity for the poor from both the socially advanced and backward classes. There will, however, be no equality of resutls since the competing capacity of the two is unequal. The economic criterion will thus lead, in effect, to the virtual deletion of Article 16(4) from the Constitution.

58. We may refer to some decisions of this Court on this point.

In Chitra/ekha, which was a case under Article 15(4), it is observed:

nit is, therefore, manifest that the Government as a tem- G porary measure, pending an elaborate study, has taken into consideration only the economic condition and occupation of the family concerned as the criteria for backward classes within the meaning of Article 15(4) of the Constitution."

H (Emphasis supplied)

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 905

The Supreme Court upheld the said classification. However, it must be A noted that the classification there was not only on the ground of economic condition but was also based on the occupation of the family concerned.

Parimoo was a case under Article 16(4). On the test of backwardness, the Court has observed there as follows: B "It is not merely the educational backwardness or the social backwardness which makes a class of citizens backward; the class identified as a class as above must be both educa- tionally and socially backward. In India social and educa- tional backwardness is further associated with economic c backwardness and it is observed. in Balaji's case referred to above that backwardness, socially and educationally is ultimately and primarily due to poverty. But if poverty is the exclusive test, a very large proportion of the population in India would have to be regarded as socially and educa- D tionally backward, and if reservations are made only on the ground of economic considerations, an untenable situation may rise because even in sectors which are recognised as socially and educatir.nally advanced there are large pockets of poverty. In this country except for a small percentage of the population the people are generally poor - some being E more poor, other~ less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes, he may do it with confidence that they are bound to be poor. His chief concern is, therefore, to determine whether the class or group is socially and educa- F tionally backward. Though the two words 'socially' and 'educationally' are used cumulatively for the purpose of describing the backward class, one may find that if a class as a whole is educationally advanced, it is generally also socially adva~ced because of the reformative effect of education on that cl(!SS. The words "advanced" and 11back- G W<l:rd11 are only relative terms - there being several layers or strata Of classes, hovering between "advanced" and "backward", and the difficult task is which class can be recognised out o.f these several layers as being socially and educationally backward." H

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

A . It will be observed from the above that poverty as the sole test of w backwardness for Article 16(4) was discarded by this Court .in ·the said decision. On the other hand, it is emphasised there that the poverty in question should be the result of social and edcational backwardness.

59. This point has elaborately been dealt with by Chinnappa Reddy, B J. in Vasan th Kumar where the learned Judge has taken pains to point out that although poverty is the dominant characteristic of all backwardness, it is not the cause of all backwardness :

"We, therefore, see that everyone of the three dimensions propounded by Weber is intimately and inextficably con- c nected with economic position. However, we look at the question of 'backwardness', whether from the angle of clas&; status or power, we find the economic factor at the bottom of it all and we find poverty, the culprit-cause and the dominant characteristic. Poverty, the economic factor brands all backwardness just as the erect posture brands the homosapiens and distinguishes him from all other animals, in the eyes of the beholder from Mars. But, whether his racial stock is Caucasian, Mongoloid, Negroid, etc. further investigation will have to be made. So too the further question of social and educational backwardness requires further scrutiny. In India, the matter is further aggravated, complicated and pitilessly tyrannised by the ubiquitous caste system, a unique and devastating system of gradation and degradation which has divided the entire Indian and particularly Hindu sociaty horizontally into such distinct layers as to be desturctive of mobility, a system which has penetrated and corrupted the mind and soul of

-- 11 every Indian citizen.

60. It is, therefore, clear that economic criterion by itself will not identify the backward classes under Article 16(4). The economic backward- ness of the backward classes under Article 16(4) has to be on account of their social and educational backwardness.

Question III:

H If economic criterion by itself could not constitute a Back-

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 907

ward Class under Article 16(4), whether reservation of A posts in services under the State, based exclusively on economic criterion would be covered by Article 16(1) of the Constitution?

61. While discussing Question No. I, it has been pointed out that so far as "backward classes" are concerned, clause (4) of Article 16 is exhaus- B tive of reservations meant for them. It has further been pointed out under Question No. II that the only "backward class'' for which reservations are provided under the said clause is the socially backward class whose educa- tional and economic backwardness is on account of the social backward- ness. A class which is not socially and educationally backward though c economically or even educationally backward is not a backward class for the purposes of the said clause. What follows from these two conclusions is that reservations in posts cannot be made in favour of any other class under the sail1 clause. Further, the purpose of keeping reservations even in favour of the socially and edcuationally backward classes under clause D (4), is not to alleviate poverty but to give it an adequate share in power.

62. Clause (1) of Article 16 may permit classification on economic criterion. The purpose of such classification, however, can only be to alleviate poverty or relieve unemployment. If this is so, to individual or section of the society satisfying the criterion can be denied its benefits - and particularly the backward classes who are more in need of it. If, therefore, the backward classes within the meaning of clause (4) are excluded from the reservations kept on economic criterion under clause (1), it will amount to discrimination. Further, the objects of reservations under the two clauses are different. While those falling under clause (1) from other than the backward classes, will continue to enjoy the reservations for ever, the backward classes can get ~he benefit of the reservation under clause (4) only so long as they are not

- adequately represented in the services. What is more, those entering the services under clause (J.) may belong to classes which are adequately or more than adequately represented in the services. The reservations for them alone under Article 16(1) would virtually defeat the purpose of Article 16(4) and woiild be contrary to it. No different result will, further, ensue even if the reservations are kepi for all the classes since as pointed out above, all the seats will be captured only by the socially and educationally a\lvanced classes. The two clauses of the Article have to be read consistently with each ot[jer so as to lead to harmonious results. Hence, so long as the socially backward H

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

A classes and the effects of their social backwardness continue to exist, the .. reservations in services on economic criterion alone would be impermissible either under clause (4) or clause (1) of Article 16.

63. Hence no reservation of posts in services ..irid.;r the State, based exclusively on economic criterion would be valid under clause (1) of Article B 16 of the Constitution.

Question IV:

Can the extent or reservation of posts in the services under the State under Article 16(4) or, If permitted under Article c 16(1) and 16(4) together, exceed 50% of the posts in a cadre or Service under the State or exceed 50% of appointments In a cadre or service in any particular year and can such extent of reservation be determined without determining the inadequacy of representation of each class in the different categories and grades of Services under the State?

64. It has already been poimed out earlier that clause (4) of Article 16 is not an exception to clause (1) thereof. Even assuming that it is an excep- tion, there is no numerical relationship between a rule and exception, and their respective scope depends upon the areas and situations they cover. How large the area of the exception will be, will of course, depend upon the circumstances in each case. Hence, legally, it cannot be insisted that the exception will cover not more than 50 per cent of the area covered by the rule. Whether, therefore, clause (4) is held as an exception to clause (1) or is treated as a more emphatic way of stating what is obvious under the said clause, has no bearing on the percentage of reservations to be kept under it. As Justice Hegde has stated in State of Punjab v. Hirata/ & Ors., [1971) 3 SCR 267 at 272, "the length of the leap to be provided depends upon the gap to be covered". In Article 16(4) itself, there is no indication of the extent of reservation that can be made in favour of the backward classes. However, the - G object of reservation, viz., to ensure adequacy of representation, mentioned there, serves as a guide for the percentage of reservations to be kept. Broadly speaking, the adequacy of representation in the services will have to be proportionate to the proportion of the backward classes in the total popula- tion. In this connection, a reference may be made to the U.S. decision in H Fullilove where 10% of the business was reserved for the blacks, their

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 909

population being roughly 10 per cent of the total population. If the reserva- A tion is to be on the basis of the proportion of the population in this country, the backward classes being no less than 77 -1/2 per cent [socially and edcua- tionally backward classes and Scheduled Castes and Scheduled Tribes taken together] the total reservation will have to be to that extent. It is not disputed that at persent the reservations for the SCs/STs are roughly in proportion to their total population. B

65. The adequacy of representation in administration is furiher to be determined on the basis of representation at all levels or in all posts in the administration. It is not <>nly a question of numerical strength in the ad- ministration as a whole. It may happen that at the higher level there may be c more representation for a class than at the lower level in terms of its popula- tion-ratio. This mostly happens with all the advanced classes. In that case, it cannot be said that the class in question is not represented adequately merely because the total representation is not numerically in proportion to the population-ratio. On the other hand, it may happen, as it does so far as the representation of the backward classes is concerned at the lower rungs they may be represented adequately or more than adequately. Yet at the higher rungs, their presence may be next to nil. In such cases, again, it cannot be said that the class is represented adequately. To satisfy the test of adequacy, therefore, what in necessary is an effective representation or effective voice in the administration, and not so much the numerical presence. It is instructive to note in this connection that Article 16(4) speaks of "adequate" and not proportionate representation. The practical question, therefore, is of the manner in which the adequate representation should be secured. Whatever the method adopted, it has also to be, consistent with the maintenance of the efficiency of the administration. F

66. In this connection, it will first be worthwhile to quote what Dr. Ambedkar had to say with regard to the extent of reservations con- templated under Article 16(4) [Constituent Assembly Debates, Vol.7 (1948-49) pp. 701-702]: G "As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain com- munities which have not so far had a 'proper look= in' so H

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

A to say into the administration. If honourable Members will bear these facts in the mind - the three principles, we had to reconcile, • they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of article 10 of the Constitution; they will find that the view of those who believe and hold that there shall be equality B of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now · for historical reasons · been controlled by one c community or a few communities, that situation should disappear and that the others also must have an oppor· tunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public servies to the fullst extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came lo something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfac- tory from the point of view of giving effect to the first principle, namely, that there shall be equality of oppor- F tunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10 must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and· effective in operation." G

67. Article 10 and 10(3) of the Draft Constitution corresponded to Article 16(1) and 16(4) of the Constitution. Wr.en we realise that these are the observations of the Chairman of the Drafting Committee,. the Law Member of the Government and the champion of the backward classes, it should give us an insight into the mind of the framers of the Constitution

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 911

on the subject. It is true that the said observations cannot be regarded as decisive on the point. The observations probably also proceeded on the assumption that clause (4) of Article 16 was an exception to its clause (1), and had a numerical relationship with the rule. Whatever the case may be, the observations do give a perceptive and viable guidance to the policy ihat should be followed in keeping reservations, and in particular on the extent of reservations at any particular point of time. There is, therefore, much force in the contention that at least as a guide to the policy on the subject, the observations cannot be ignored.

68. Although the view expressed in Ba/aji and Devadasan [supra], that the reservation should not exceed 50 per cent does not refer to Dr. C Ambedkar's aforesaid observations and is, therefore, not based on it, and ' is based on other considerations, it cannot Le said that it is not in con- sonance with the spirit, if not the letter, of the provisions.

69. It is seen earlier that 50 per cent rule was propounded in Balaji. D -+ The rule was propounded in the context of Art. 15(4), but, while propound- ing it, this Court stated among other things, as follows:

".... A special provision contemplated by Art. 15(4) like reservation of posts and appointments contemplated by Art. 16(4) must be within reasonable limits. The interests E of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State F reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Art. 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way a special provision should be less than 50%; how much less than 50% would depend upon the G relevant prevailing circumstances in each case. 11

70. A reference to Article 16( 4) there, therefore, unmistakably shows that it is presumed that the same rule will apply to Article 16(4) as well. This rule, however, did not see uniform acceptance in all the decisions that H

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

A ·followed. The case which immediately followed - Davadasan - applied this rule to the "carry forward rule" and struck down the same in its entirety, since 65 per cent of the vacancies for the year in question, came to be reserved for the SCs/STs by virtue of that rule. With respect, even on the application of the 50 per cent. rule, it was not necessary to strike down the B "carry forward rule" itself. All that was necessary was to confme the carry forward vacancies for the year in question to 50 per cent. Be that as it may. In Thoma.i, the correctness of 50 per cent rule was questioned by Fazal Ali, J. who stated that although clause (4) of Article 16 does not fix any

C limit on reservations, the same being part of Article 16, the State carmot be allowed to indulge in excessive reservation so as to defeat the policy of Article 16(1). The learned Judge, however, added that as to what would . be a suitable reservation within pennissible limits will rlepend on the facts and circumstances of each case and no hard and fast rule can be laid down nor can this matter to reduced to a mathematical formula so as to be adhered to in all cases. The learned Judge then went on to say that although the decided cases till that time, had laid down that the percentage of reservation should not exceed 50, it was a rule of caution and did not exhaust all categodes. He then gave an illustration of a State in which backward classes constituted 80 per cent of the total population, and stated that in such cases, reservation of 80 per cent of the jobs for them, can be justified. The learned Judge justified reservation to the said extent on the ground that the dominant object of the provision of Article 16(4) is to take steps to make inadequate representation of backward classes adequate. Of the other learned Judges constituting the Bench, Krishna Iyer J. agreed with Fazal Ali, J. and stated that the arithmetical limit of 50 per cent in one year set by earlier rulings cannot ''perhaps be pressed too far". He added that over-representation in a department does not depend on recruitment in a particular year but on the total strength of the cadre.

(Emphasis supplied)

G In Vasanth Kumar Chinnappa Reddy, J. held that Thomas had undone the 50 per cent rule laid down in the earlier cases, while Verikataramiah, J. disagreed with the learned Judge on that point.

71. It does not appear further that Justice lyer's support lo Justice H Fazal Ali's view in Thomas, was unqualified or remained unchanged. For

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 913

in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India & A Ors., {1981] 2 SCR 185, after referring to Balaji and Davadasan, he stated as follows:

"All that we need say is that the Railway Board shall iake care to issue instructions to see that in no year shall SC & B ST candidates be actually appointed to substantially more than 50 per cent of the promotional posts. Some excess will not affect as mathematical precision is different in human affairs, but stbstantiai exceis will void the selection. Subject to this rider or condition that the 'carry forward' rule shall not resul~ in any given year, in the selection or appoint- c ments of SC & ST can<tidates considerably in excess of 50 per cent, we uphold Annexure I."

The learned Judge has supported this conclusion by the observations made by him in the earlier paragraph of his judgment which show that D according to him the reservations made under Article 16(4) should not have the effect of virtually obliterating the rest of the Article - clauses (1) and (2) thereof.

72. It is necessary in this conoection, to point out that not only Article E 16(4) but for that matter, Article 335 also does not speak of giving propor- tional representation to the backward classes and SCsiSTs respectively. Article 16(4), as repeatedly pointed out earlier, in terms, speaks of "ade- quate" representation to the backward classes, while Article 335 speaks of the "claims" of the members of the SCs/STs. However, it cannot be disputed that whether it is the appointments of SCs/STs or other backward classes, F both are to be made consistently with the maintenance of the efficiency in adminsitration. Since the reservations contemplated under both the Ar- ticles include also the giving of concessions in marks, exeffiptions etc., it is legitimate to presume that the Constitution-framers being aware of the level of backwardness, did envisage that the inadequacy in the repre- G sentation of the backward classes cannot be made up in one generation j consistently with the maintenance of efficiency in the adininistration. In fact, as pointed out earlier, if the backward classes can provide candidates for filling up the posts in all fields and at all levels of administration in one generation, they wo~ld cease to be backward classes. What was in the mind H

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

,. A of the Constitution-framers was the removal of the inadequacy in repre- sentation over a period of time, on each occasion balancing the interests of the backward classes and the forward classes so as not to affect the provisions of equality enshrined in Articles 14 and 16(1) as also the • interests of the society as a whole. As pointed out earlier, Dr. Ambedkar I " L •

was not only not in favour of proportional .repr7senta,tiop, ~\!\,:'las on the B contrary, of the firm view that the reservatio~. under ~i)cle,1~(4) should be confined to the minority of the posts/appointmenl~; .In.. fl!ct, as the debate in the Constitutent Assembly shows nobody even suggest!Xl that the reservations under Article 16(4) should be in proportion to the population of the backward classes. c

73. While deciding upon a particular percentage of reservations, what should further not be forgotten is that between the backward and the forward classes, there exists a sizeable section of the population, who being socially not backward are not qualified to be considered as backward. At D the same time they have no capacity to compete with the forwards being educationally and economically not as advanced. Most of them have only the present generation acquaintance with education. They are, therefore, left at the mercy of chance-crumbs that may come their way. They have neither the benefit of the statutory nor of the traditional in-built reserva- E tions on account of the unequal social advantag~s . .,.H .is,, tl!is.\section sandwiched between the two which is most affected by;Jhe .re~erya~i!m policy. The reservation-percentage has .to be adjµsted •. to"meet;, th¢ir legitimate claims also. ·1 . 1: ,\t·,"-11 ·;[ ,;,.;., "1Jcup .; ~1.11i:J·:·11q·;1

74. In this connection, one more fact nee\ls t.o b~ CQllsiderll!IJJOll!! ~ F realistic angle. A mechanical approach in keeping reservati.Qn,s.iu-.""1.. fi~\(l,s and at all levels of administrations and that top at a unifp~njop<;1;CS'ntage,.js unrealistic. There is no reason why the authorities conCl'rQ.e<Lslt\luld. 11\Qt apply their mind and evolve a realistic in this bahalf. There ardi1>lds.iuid levels of administration where either there may be no candidates ;fquh G backward classes available or may not be available iri adequate number; lit such cases, either no reservations should be kept or reservations kept should be at an appropriate percentage. On the other hand, in fields and at levels where the candidates from the backward classes are available in suitable number, the maximum permissible reservations can be kept. The H adjustment of the reservations and their percentages, field and grade-wise

INDRASAWHNEY v. U.0.1.[SAWANT,J.] 915

as well as from time to time, as per the availablility of the candidates from the backward class•s, is not only implicit in the consititutional provisions but is also warranted for purposeful and effective implementation of the · spirit of those provisions.

In this connection, it is worth serious consideration whether reserva- tions in the form of preference instead of exclusive quota should not be resorted to in the teaching profession in the interests of the backward classes themselves. Education is the source of advancement of the in- dividual in all walks of life. The teaching professiciO: therefore, holds a key position in societal life. It is the quality of education received that deter- mines and shapes the equipment . and the competitive capacity of the c individual, and lays the foundation for his career in life. It is, therefore, in · the interests of all sections of the society - socially bac~ard and forward - and of the nation as a whole, that they aim at securing and ensuring the best of education. The student whethe1_. he belongs to the backward or foreward class is also entitled to expect that he receives th~ best possible education that can be made available to him and correspondingly it is the duty and the obligation of the management of every educational institution to make sincere ·and diligent efforts to• secure the services of the best avaliable teaching talent. In the appointments of teachers, therefore, there should be no compromise on any gro~d For as against the few who may get appointments as teachers from the reserved quota, there will be over · the years tho~ds o(students belongmg to the bac~ard classes receiving education whose 'competitive capacity needs to be brought to the level of the forward classes. What is more, iricompet~nt teaching would also affect the quality of education received by the students from the other sections of the society. However, whereas.those coming from th~ advanced sections of the society can make-up-their loss in the quality of education received, ~ "· by ediJ;;.tion at home or outside through private tuitions and tutorial classes, thosero;,,mg from' the backward classes wmtld have no means for making up the ·loss. The teachers themselves must . further command respect which they will do more when they do not come_ through any reserved quota. The indiscipline in the educational campus is not a little due to the incompetence of the teachers from whatever section they may come, forward or backward. It is, theref~re, necessary that there should be no exclusive quota kept in the teaching occupation for any section at all. '. > - • H

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

A However, if the candidates belonging to both backward and forward classes are equal in merit, preference should be given to those belonging to the backward classes. For one thing, they must also have a "look into" the teaching profession as in other professions. Secondly, in this vital profes- sion also, the talent, the social experience and the new approach and outlook of the members of the backward classes is very much necessary. That will enrich the profession and the national life. Thirdly, it will also help to meet the complaints of the alleged step-motherly treatment received by the students from the backward classes and of the lack of encouragement to them even when they are more meritorious. Hence in the teaching profession, it is preference rather than reservation, which should be resorted to under Article 16(4) of the Constitution. A precau- tion, however, has to be taken to see that the selection body has a representation from the backward classes.

It must, however, be added that in judging the merits of the in- D dividuals for the profession of teaching as for any other profession, it is not the traditional test of marks obtained in examinations, but a scientific test based, among other things, on the aptitude in teaching, the capacity to express and convey thoughts, the scholarship, the character of the person, his interest in teaching, his potentiality as a teacher judged on the con- E siderations indicated generally at the outset, should be adopted.

What is stated with regard to the teaching profession above is only by way of an illustration as to how the policy of reservation if it is to subserve its larger purpose can be modulated and applied rationally to different fields instead of clamping it mechanically in all the fields or withholding it from some areas altogether. It is not meant to lay down any proposition of law in that behalf.

75. The other aspect of the question is whether for the purposes of the percentage-limit of the reservations under Article 16, the reservati~ns made under clause (1) should be taken into consideration together with those made under clause (4) of the Article.

76. · As has already been pointed out above, the reservations on the basis of economic criterion alone would be impermissible under clause (1). H Assuming, however, that they are legal, they cannot cut into the reserva-

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 917

tions made for the backward classes under clause (4) which are for the specific purpose of making up the adequacy in representation in the services.

77. However, reservations for individuals are permissible under clause (1) on a ground other than economic, provided of course, the ground is not hit by Article 16(2). Instances of such individuals have been given earlier which need not be repeated here. There is, however, no need to made additional reservations for such individuals over and above those made under clause (4). The individuals can be accommodated in the quota reserved for the backward, or in the unreserved or general category depending upon the class to which they belong. For example, the defence personnel and the freedom-fighters or their dependents, physically handicapped, etc. can be accommodated in the reserved quota under Article 16(4) if they belong to the backward classes, and in the unreserved posts/appointments if they belong to the unreserved categories. This is so because in their respective classes, they will be more disadvantaged than others belonging to those classes. Such a classification need not hit either clause (1) or clause (2) of Article 16 but would be justifiable. If this is done, there would be no occasion to keep extra posts/appointments reserved for them under clause (1). E It is necessary to add here a word about reservations for women. Clause (2) ·of Article 16 bars reservation in services on the ground of sex. Article 15(3) cannot save the situation since all reservations in the services under the State can only be made under Article 16. Further, women come from both backward and forward classes. If reservations are kept for women as a class under Article 16(1), the same inequitous phenomenon will emerge. The women from the advanced classes will secure all the posts, leaving those from the backward classes without any. It will amount to indirectly providing statutory reservations for the advanced ·classes as such, which is impermissible under any of the provisions of Article 16. However, there is no doubt that women are a vulnerable section of the society, whatever the strata to which they belong. They are more disadvantaged than men in their own social class. Hence ~eservations for them on that ground would be fully justified, if they are kept in the quota of the respective class, as for other categories of persons, as explained above. If that is done, there is no need to keep a special quota for women as such H

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

A and whatever the percentage-limit on the reservations under Article 16, need not be exceeded.

78. Yet another aspect of the matter is whether the extent of reser- vations should be determined [i] on the basis of the total strength of the particular cadre or service, or on the basis of the appointments made for B that cadre in a particular year and [ii] without, determining the inadequacy of representation of each class in different categories and grades of the services under the State.

79. Both to avoid arbitrariness in appointments and to ensure the c availability of the expected number of seats every year, for the reserved as well as the unreserved categories as per the pre-defined known norms, it is necessary that the reservations in appointments/posts are made yearwise. Any other practice wonld give the authorities complete freedom as to when and at what percentage the reservations shonld be kept. It may happen that in some years, they may not keep reservations at all whereas in other years, they may reserve all or majority of the posts. Secondly, the periodicity of reservations may also vary depending upon the will of the authorities which may be influenced by several unpredictable considerations. This would spell out uncertainties in the matter of appointments both for the reserved and unreserved categories. Hence the reservations will have to be kept and calculated on yearwise basis [See: CA. Rajendran v. Union of India & Ors., [1968] 1 SCR 721 at 732-33, and better still, on the basis of the roster system with suitable number of points to correspond the average vacancies. To permit calculation, further, of the percentage of reservations on the basis of the total strength of the cadre and to enable the authorities concerned, as stated earlier, to keep either all the posts or a majority of them reserved from year to year till there is adequate representation of the reserved categories, will in the process deny to the unreserved categories completely or near completely, their due share in the appointments yearwise, thus obliterating clause (1) of Article 16 totally over a given period of time. G Hence as pointed out earlier, the extent of the percentage of the reserva- tion should be calculated yearwise with due allowance to the operation of the rule with regard to the backlog, if any. Still better method is to regulate and calculate the appointments on the roster basis as stated earlier.

H 80. As regards point (ii), since the provisions of Article 16(4) are

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 919

meant for providing adequate representation in the services to the back- A ward classes, the representation has co be in all categories and grades in the services. The adequacy does not mean a mere proportionate numerical or quantitative strength. It means effective voice or share in· power in running the administration. Hence, the extent of reserv3tiOnS will have to be estimated with reference to the representation in different grades and categories. (See: The General Manager, Southern Railway v. Rangachari, [1962] 2 SCR 586).

To summarise, the question may be answered thus. There is no legal infirmity in keeping the reservations under clause (4) alone or under clause (4) and clause (1) of Article 16 together, exceeding 50%. However, validity of the extent of excess of reservations over 50% would depend upon the facts and circumstances of each case including the field in which and the grade or level of administration for which the reservation is kept. Although, further, legally and theoretically the excess of reservations over 50% may be justified, it would ordinarily be wise and nothing much would be lost, if the intentions of the framers of the Constitution and the observations of Dr. Ambedkar, on the subject in particular, are kept in mind. The reser- vations should further be kept category and gradewise at appropriate percentages and for practical purposes the extent of reservations should be calculated category and gradewise. E

Question V:

Does Article 16(4) permit the classification of 'Backward Classes' into Backward Classes and Most Backward Clas- ses or permit classification among them based on economic or other considerations?

81. This question is really in two parts and the two do not mean and refer to the same classification. The first part refers to the classification of the backward classes .into backward and most backward classes while the second speaks of internal classification of each backward class, into back- ward and more backward individuals or families. Both classifications are to be made on economic or other considerations. Whereas the first clas- sifi.cation will place some backward classes in their entirety above other backward classes, the second will place some sections in each backward H

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

A class internally above the other sections in the same class. The second classification aims at what has popularly come to be known as weeding out of the s0-called "creamy' or "advanced sections" from the backward clas- ses. Although it is not that clear, the second order probably seeks to do it. We may first deal with the second classification.

B 82. Society does not remain static. The industrialisation and the urbanisation which necessarily followed in its wake, the advance on politi- cal, social and economic fronts made particularly after the commencement of the Constitution, the social-reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to compete with others in every field. That is an undeniable fact. Legally, therefore, they are not entitled to be any longer called as part of the backward classes whatever their original birth mark. It can further hardly be argued that once a backward class, al)vays a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward/ classes, and for enabling them to come to the level of and to compete with the forward classes, as equal citizens. On the other hand, to continue to confer upon such advanced sections from the backward classes the special benefits, would amount to treating equals unequally violating the equality provisions of the Constitu- tion. Secondly, to rank them with the rest of the backward classes would equally violate the right to equality of the rest in those classes, since it would amount to treating the unequals equally. What is more, it will lead to perverting the objectives of the special constitutional provisions since the forwards among the backward classes will thereby be enabled to lap up all the special benefits to the exclusion and at the cost of the rest in those classes, thus keeping the rest in perpetual backwardness. The object of the special constitutional provisions is not to uplift a few individuals and families in the backward classes but to ensure the advancement of the backward classes as a whole. Hence, taking out the forwards from among the backward classes is not only permissible but obligatory under the Constitution. However, it is necessary to add that just as the backwardness of the backward groups cannot be measured in terms of the forwardness

INDRA SAWHNEY v. U.0.1. [SAWANT, J.J. 921

of the forward groups, so also the forwardnds of the forwards among the . A backward classes cannot be measured in terms of the backwardness of the backward sections of the said classes. It has to be judged on the basis of the social capacities gained by them to compete with the forward classes. So long as the individuals belonging to the backward classes do not develop sufficient capacities of their, own to compete with others. they can hardly B be classified as forward. The moment, however, they develop the requisite capacities, they would cease to be backward. It will be a contradiction in ~

terms to call them backward and others more or J!!OSt backwards. There will always be degrees of backwardness as therewill be degrees of forward- ness, whatever the structure of the society. It is not the degrees of back- wardness or forwardness which jusiify classification of the society into c forward and backward classes. It is the capacity or the lack of it to compete with others on equal terms which merits such classification. The remedy therefore, does not lie in classifying each backward class internally into backward and more backward, but in taking the forward from out of the backward classes altogether. Either they have acquired the capacity to compete with others or not. They cannot be both.

83. The mere fact further that some from the backward classes who are more advanced than the rest in that class or score more in competition with the rest of them and thus gain all the advantages of the special provisions such as reservations, is no ground for classifying the backwards into backwards and most backwards. This phenomenon is evident among the forward classes too. The more advantaged among the forwards similarly gain unfair advantage over others among the forwards and secure all the prizes. This is an inevitable consequence of the present social and economic structure. The correct criterion for judging the forwardness of the forwards among the backward classes is to measure their capacity not in terms of the capacity of others in their class, but in terms of the capacity of the members of the forward classes, as stated earlier. If they cross the Rubicand of backwardness, they should be taken out from the backward classes and should be made disentitletl to the provisions meant for the said classes. '

84. It is necessary to highlight another allied aspect of the issue, in this connection. What do we mean by sufficient capacity to compete with others? ls it the capacity to compete for Class-IV or Class-lll or higher H

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

A class posts? A Class-IV employee's children may develop capacity to compete for Class-III posts and in that sense, he and his children may be forward compared to those in his class who have not secured even Class-IV - posts. It cannot, however, be argued that on that account, he has reached the "creamy" level. If the adequacy of representation in the services as discussed earlier, is to be evaluated in terms of qualitative and not mere quantitative representation, which means representation in the higher rungs of administration as well, the competitive capacity should be deter- mined on the basis of the capacity to compete for the higher level posts also. Such capacity will be acquaired only when the backward sections reach those levels or at least, near those levels. Till that time, they cannot be called forwards among the backward classes, and taken out of the backward classes.

85. As regards the second part of the question, inBa/aji it is observed that the backward classes cannot be further classified in backward and more backward classes. These observations, although made in the context of Article 15(4) which fell for consideration there, will no doubt be equally applicable to Article 16(4). The observation were made while dealing with the ~ecommendations of the Nagan Gowda Committee appointed by the State of Karnataka which had recommended the classifications of the backward communities into two divisions, the Backward and the More Backward. While making those recommendations the Committee had ap- plied one test, viz., "Was the standard of education in the community in question less than 50% of the State average? If it was, the community was regarded as more backward; if it was not, the community was regarded as backward". The Court opined that the sub-classification made by the Repor.t and the order based thereupon was not justified under Article

- 15(4) which authorises special provision being made for 'really backward classes'. The Court further observed that in introducing two categories of backward classes, what the impugned order in substance purported to do was to devise measures for the benefit of all the tlasses of ·citizens who 11

are less advanced compared to the most advanced classes in the State". That, according to the Court, was not the scope of Article 15(4). The result of the method adopted by the impugned order was that nearly 90% of the population of the State was treated as Backward and that, observed the H Court, illustrated how the order in fact divided the population of the State

INDRA SAWHNEY v. U.O.JJ[SAWANT, J.]

into most advanced and the rest, putting the fatter into· two ·"Categories of A the Backward and the More Backward. Thus, the view taken there-•against the sub-classification was on the facts· of that case·which·'.showed -that almost 90% of the population of the State was classified as backward, the backwardness of the Backward [as against that of the More' Backward] being measured in comparison to the most advanced Classes in the State. B Those who were less advanced than the .most advanced;0were all classified as Backward. The Court held that it is the More Backward or who were really backward who alone would be entitled to the benefit of the provisions of Article 15(4). In other.words, while the More Backward were classified there rightly as backward, the Backward were not classified rightly as backward.

86. It may be pointed out that in Vasanth Kumar, Chinnappa Reddy, J. after referring to the aforesaid view in Balaji observed that "the propriety of such test may be open to question on the facts of each case but there was no reason why on principle there cannot. be a classification into backwards and More Backwards if both .cl.~ss~~. ,are not merely a little • behind, but far· for behind the most adV3!l,C"._4f ~"'S~!lK· He further ·observed that in fact, such classification wmtld, .~e .l\e.ces~ to help the More Backward classes; otherwise those 9~.!k.e b.ac;l\w,w,4,~~~ses who might be a little l]lpre advanc~d than the. m~r,e1b.1'skwar:d £1Af~,<;i;,i.;\VOuld walk away with ai!,\he seats,j_u~i as if·reservl)tio111wa~E!l~l,'W\\~9i~;\\fore Backward classes and no resl'rvation wa,.s nia<!,y, !'l:J:~e.,~~~tly mpr5._advanced of the backward classes, the backward classes would gain _no seats .~ce the advanced classes would walk away with all the seats available for the general category''. With respect, this is '.the,:correct view of the matter. Whether the backward classes can be classified into Backward and More F Backward, would depend upon the facts of each case. So long as both backward and more backward classes are not only comparatively but substantially backward than the advanced classes, and further, between themselves, there is a substantial difference in backwardness, not only it is advisable but also imperative to make the sub-classification if all the G backward classes are to gain equita!:>le benefit of the special provisions under the Constitution. To give an instance, the Manda! Commission has, on the basis of social, educational and economic indicators evolved 22 points by giving different values to each of the three factors, viz., social, H

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

A educatliipal and economic. Those social groups which secured 22 points or above 'have been listed there as "socially and educationally backward" and the rest as ."advanced". Now, between 11 and 22 points some may secure, say, 11 to 15 points while others may secure all 22 points. The difference in their backwardness is, therefore, substantial. Yet another illustration B which may be given is from Karnataka State Goverment order dated 13th October, 1986 on reservations issued after the decision in Vasanth Kumar where the backward classes are grouped into five categories, viz., A, B, C, D, and E. In category A, fall such castes or communities as that of Bairagi, Banjari and Lambadi which are nomadic tribes, and Bedaru, Ramoshi which were formerly stigmatised as criminal tribes whereas in category D <:; fall such castes as Kshatriya and Rajput. To lump both together would be to deny totally the benefit of special provisions to the former, the later t3lcing away the entire benefits. On the other hand, to deny the status of backwardness to the latter and ask them to compete with the advanced classes, would leave the latter without any seat or post. In such circumstan- D ces, the sub-classification of the backward classes into backward and more or most backward is not only desirable but essential. However, for each of them a special quota has to be prescribed as is done in the Karnataka - Government order. If it is not done, as in the present case, and the reserved posts are first offered to the more backward and only the remaining to the backward or less backward, the more backward may take away all the posts leaving the backward with no posts. The backward will neither get his post in the reserved quota nor in the general category for want of capacity to compete with the for.ward.

87. Hence, it will have to be held that depending upon the facts of each case, sub-classification of the backward classes into the backward and more or most backward would be justifiable provided separate quotas are prescribed for each of them.

Questions VI: G Would making "any provision" under Article 16(4) for reservation "by the State" necessarily have to be by law made by the legislatures of the State or by law made by Parliament? Or could such provisions be made by an H executive order?

INDRA SAWHNEY v. U.0.1. [SAWANT, J.] 925

· 88. The language of Article 16(4) is very clear. It enables the State A to make a "provision" for the reservation of appointments to the posts. The provision may be made either by an Act of Legislature or by rule or regulation made under such A<;t or in the absence of both, by executive order. Executive order is no less a law under Article 13(3) which defines Jaw to include, among other things, order, by-laws and notifications. The provisions of reservation under Article 16(4) being relatable to the recruit- B ment and conditions of service under the State, they are also covered by Article 309 of the Constitution. Article 309 expressly provides that until provision in that behalf is made by or under an Act of the appropriate Legislature, the rules regulating the recruitment and conditions of service of persons appointed to Services under the Union or a State may be c regulated by rules made by the President or the Governor as the case may be. Further, wherever the Constitution requires that the provisions may be made only by an Act of the Legislature, the Constitution has in express terms stated sc. For example, the provisions of Article 16(3) speak of the

- Parliament making a law, unlike the provisions of Article 16 (4) which permit the State to make "any provision''. Sllnilarly, Articles 302, 304 and 307 require a law to be enacted by the Parliament or a State Legislature as the case may be on the subjects concerned. These are but some of the D

provisions in the Constitution, to illustrate the point.

89. The impugned orders are no doubt neither enactments of the E Legislature nor rules or regulations made under any Act of the Legislature. They are also not rules made by the President under Article 309 of the Constitution. They are undoubtedly executive orders. It is not suggested that in the absence of an Act or rules, the Government cannot make provisions on the subject by executive orders nor is it contended that the impugned orders made in exercise of the executive powers, have trans·

r • gressed the limits of legislative powers of the Parliament. What is con- tended by Shri Venugopal is that power to make provisions on such vital subject must be shared with, and can only be exercised after due delibera- tions by, the Parliament. The contention, in essence, questions the method of exercising the power and not the absence of it. The method should be left to the discretion and the policy of the Government and the exigencies of the situation. It may be pointed out that, so far the reservations made by the Central Governments in favour of the SCs/STs and the State Government in favour of all backward classes, have been made by executive instructions, or by rules made under Article 309 of the Constitution. No H

926 t · ·SUPREME COURT REPOR'IS [1992] SUPP. 2 S.c.R.

A reservati0ns have be~n made by Ai:ts of Legislatures. There is; therefore, no illegality attached to the impugned orders merely bccau5e the Goven- a ment instead of enacting statute for the purpose, has chosen to make tl:e provisions by executive orders. such execUtive orders having been made .under Article 73 -of the Constitution: have for their operation an equal efficacy as an Act of the parliament or the rUJes made by the President B under Article 309 of the Constitution. ' - · ~ ·. ' , ' I

9o. If any authority is n~eded f~r the otherwise seJf-evident propos- tition, one may refer to the following decisions of this Court where reser- vations made by executive orders were upheld: See Balaji [supra), Mangat C Singh v. l'unjab State, Chandigarh & Ors., AIR 55 1968, Punjab & Haryana 306, Comptroller & Auditor General of India & Ors. v. Mohan Lal Mahotra & ors. [1992] 1 sec 20._ -

Question VII: ·

D Will the extent .,r judicial review be limited or restricted in regard to the identification oC Backward Classes and the petuntage ofCesefv3tions made for such classes, to a demonstrably perverse identification or ·a demonstrably unreasonable percentage? ' - .

E 91: The answer to the questio~ lies in ihe question itself. There are no special principles of judicial review nor does .the scope of judicial review · expand when the identification of backward classes and the percentage· rl the reservation kept for them is called in question. So long as correct criterion for the identification of the backward classes is applied, the result arrived at cannot be questioned cin the ground that other valid .criteria were also available for such identification. It is possible thai the result so arrived at may be defective marginally or in marginal number of cases. That does not invalidate the-excercise itself. No method is perfect particularly when. -sociological findings are in issue. Hence, marginal defects when found may be cured in individual cases but the entire rmdllig is not rendered invalid on that account. -- -- -

92. The corollary of the above is that when the criterion applied for identifying the backward classes is either perve>se or per se defective or unrelated to such identification in that it is not calculated to give the result or is calculated to give, by the very nature of the criterion, a contrary or

INDRASAWHNEY v. U.0.1.[SAWANT,J.] -927

unintended result, the criterion is open for judicial exilmination. · A

93. The validity of the percentage of reservation for backward classes would depend upon the size of the backward classes in question. So long as it is not so excessive as to virtually obliterate the claims of others under clause 16 (1), itis not open to challenge. However, it is not neeessary, and B Article 16(4) does not suggest, that the percentage of reservation should be in proportion to the percentage of the population of the backward classes to the total population. The only guideline laid down by Article 16(4), as pointed out elsewhere, is the adequacy of represe!ltation in the services. Within the said limits, it is in the discretion of the State to keep the reservation ai reasonable. level by taking into . consideration all C legitimate claims an:d the relevant factors. In this connection, the law laid down directly on the subject in the following decision is ~ortb recountirig:

inBa/aj~ the Court struck dawn the impugned order of reservations on the ground that it had categorised the backward classes on the sole ba<is of · D caste and slso on the ground that the reservations made were to the extent of 68% which_ the Court held was inconsistent with the concept of the special provision and authorised by Article 15(4). The Court further held that for these two reasons the impugned order was a fraud on the constitutional power conferred on the State by Article is(4). It may be pointed out at the cost of repetition, that the second reason was based on the premise that E clause ( 4) was an exception to clauses (1) and (2) of Article 15, and that the exception had a nnmerical relationship with the rule.

In Devadasan the majority held that the 'carry forward' rule which resulted in the particular year in reserving 65% of the posts for Scheduled F Castes and Scheduled Tribes, was unconstitutional since the reservations exceeded 30% of_ the vacancies. ·Aec;,rding to the Court, though under .. Article 16(4), r~servation of reasonable percentage of posts for the members of the Scheduled Castes and the Scheduled Tribes was within the com~ petence of the State, the method evolved must be such as to strike reasonable G balance between the claims of the backward classes and those of the other employees in order to effectnate the guarantee contained in Article 16(1), and that for this purpose each year of recruitment would have io be con- sidered by itself. With respect, the majority decision was based on the reasoning of Balaji to which a reference has already been made. Justice Subba Rao dissented from this line of reasoning and it is his reasoning which H

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

A came to be accepted later both in Thomas and Vasanth Kumar. In P. Sagar, [1968] 3 SCR 595, the Court upheld the decision of the High Court and dismissed the State's appeal on the ground that there was no material placed before the Court to show that the list of backward classes was prepared in conformity with the requirements of Article 15(4). B The Court held that the list prepared was ex facie based on castes or communities, and was substantially the same which was struck down by the High Court in P. Sukhadev & Ors. v. The Government of Andhra Pradesh, (1966) 1 Andhra W.R. 294.

C In Periakaruppan, [1971] 2 SCR 430, it was observed that the list of . backward classes is open to judicial review and the Government should always keep under review the question of reservations of seats, and only those classes which are really socially and educationally backward should be allowed to have the benefit of reservation. The reservation of seats should not be allowed to become a vested interest and since in that case the candidates of backward classes had secured 50% of the seats in the general pool, it, according to the Court, showed that the time had come for a de novo comprehensive examination of the question. In other words, it is laid down in this case that if some backward classes which are advanced continue to be, or are included in the list of, backward classes, the list can be questioned and a judicial scrutiny of the list will be pennis- sible.

In Hira Lal [supra], it is observed that if the reservations made under Article 16(4) make the rule in Article 16(1) meaningless, the decision of the State would be open to judicial review. But the burden of establishing that a particular reservation is offensive to Article 16(1), is on the person who takes the plea.

94. To sum up, judicial scrutiny would be available [i] if the criterion inconsistent with the provisions of Article 16 is applied for identifying the classes for whom the special or unequal benefit can be given under the said G Article; [ii] if the classes who are not entitled to the said benefit are wrongly included in or excluded from the list of beneficiaries of the special provisions. In such cases, it is not either the entire exercise of the entire list which becomes invalid, so long as the tests applied for identification are correct and the inclusion or exclusion is only marginal; and [iii] if the percentage of reservation,t;f!: "ither disproportionate or unreasonable so as

INDRA SAWHNEY v. U.O.l. [SAWANT, J.] 929

to deny the equality of opportunity to the unreserved classes and obliterates Article 16(1). Whether the percentage is unreasonable or results in the obliteration of Article 16(1), so far as the unreserved classes are concerned, it will depend upon the facts and circumstances of each case, and no hard and fast rule of general application with regard to the percentage can be laid down for all the regions and for all times. B Question VIII:

Would reservation of appointments or posts "in favour of any Backward Class" be restricted to the initial appoint- ment to the post or would it extend to promotions as well? c

95. None of the impugned Government memoranda provide for reservations in promotions. Hence, the question does not fall for con· sideration at all and any opinion expressed by this Court on the said point would be obiter. As has been rightly contended by Shri Parasaran, it is settled by the decisions of this Court that constitutional ·questions are D decided only if they arise for determination on the facts, and are absolutely necessary to be decided. The Court, does not decide questions which do not arise. The tradition is both wise and advisable. There is a long line of decisions of this Court on the point. The principle is so well-settled and not disputed before us that it is not necessary to quote all the authorities on the subject. To mention only two of them, see The Central Bank of India E v. Their Workmen, (1960] 1 SCR 200. and Harsharan Verma v. Union of India & Anr., AIR 1987 SC 1969.

%. The reservations in the services under Article 16(4), except in the case of SCs/STs, are in the discretion of the State. Whether reservations F should at all be kept and if so, in which field and at what levels and in which mode of recruitment - direct or promotional - and at what percent- age, are all matters of policy. Each authority is required to apply its mind to the facts and circumstances of the case before it and depending upon the field, the post, the extent of the existing representation of different classes, the need, if any, to balance the representation, the conflicting G s' claims etc., decide upon the measures of reservations. The reservations, as stated earlier, cannot be kept mechanically even where it is permissible to do so. For some reasons, if Centeral Government, in the present case, has not thought it prudent and necessary to keep reservations in promotions, the decision of the Central Government should not be probed further. It H

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

A is for the Government to frame its policy and not for this Court to comment upon it when it is not called upon to do so.

97. However, if it becomes necessary to answer the question, it will have to be held that the reservations both under Article 16(1) and 16(4) should be confined only to initial appointments. Except in the decision in B Rangachari [supra], there was no other occasion for this Court to deliberate upon this question. In that decision, the Constitution Bench by a majority of three took the view that the reservations under Article 16(4) would also extend to the promotions on the ground that Article 16(1) and 16(2) are intended to give effect to Articles 14 and 15(1). Hence Article 16(1) should c be construed in a broad and general, and not pedantic and technical way. So construed, "matters relating to employment" cannot mean merely mat- ters prior to the act of appointment nor can 'appointment to any office' mean merely the initial appointment but must also include all matters relating to the employment, that are either incidental to such employment or form part of its terms and conditicns, and also include promotion to a D selection post. The Court further observed that:

"Although Art. 16(4), which in substance is an excep- tion to Arts. 16(1) and 16(2) and should, therefore, be strictly construed, the court cannot in construing it over- E look the extreme solicitude shown by the Constitution for the advancement of socially and educationally backward classes of citizens.

The scope of Art. 16(4), though not as extensive as that of Art. 16(1) and (2), - and some of the matters F relating to . employment such as salary, increment, gratuity, pension and the the age of superannuation, must fall outside its non-obstante clause, there can be no doubt that it must include apointments and posts in the services. To put a narrower construction on the word 'posts' would be to defeat the object and the underlying policy. Article G 16( 4), therefore, authorises the State to provide for the reservation of appointments as well as selection posts. '1

The majority has, however, added that in exercising the powers under the Article, it should be the duty of the State to harmonise the claims of H the backward classes and those of the other employees consistently with

INDRA SAWHNEY v. U.O.l. [SAWANT, J.] 931

the maintenance of an efficieni administration as contemplated by Article A 335 of the Constitution.

Justice Wanchoo, one of the two Judge who differed with the majority view held that Article 16(4) implies, as borne out by Article 335, that the reservation of appointments or posts for backward classes cannot cover all or even a majority of the appointments and posts and the words B "not adequately represented", do not convey any idea of quality but mean sufficiency of numerical representation in a particular service, taken not by its grades but as a whole. Appointments, according to the learned Judge, must, therefore, mean initial appointments and the reservation of appoint- ments means the reservations of a percentage of initial appointments. The c other learned Judge, viz., Ayyangar, J., forming the minority held that Article 16(4) has to be read and construed in the light of other provisions relating to services and particularly with reference to Article 335. So construed1 the word 11post 11 in that Article must mean posts not in the services but posts outside the services. Even assuming that it was not so, according to the learned Judge, the inadequacy of representation sought to be redressed by Article 16( 4) meant quantitative deficiency of repre- sentation in a particular service as a whole and not in its grades taken separately, nor in respect of each single post in the service. By this reasoning the learned Judge held that Article 16(4) can only refer to appointments to the services at the initial stage and not at diffe\ent stages after the appointment has taken place.

98. It has been pointed out earlier that the reservations of the backward classes under Article 16(4) have to be made consistently with the maintenance of the efficiency of administration. It is foolhardy to ignore the consequences to the administration when juniors supersede seniors although the seniors are as much or even more competent than the juniors. When reservations are kept in promotion, the inevitable consequence is the phenomenon of juniors, however low in the seniority list, stealing a march over their seniors to the promotional post. When further reservations are kept at every promotional level, the juniors not only steal march over their seniors in the same grade but also over their superiors at more than one higher level. This has been witnessed and is being witr,essed frequently wherever reservations are kept in promotions. It is naive to expect that in such circumstances those who are superseded, (and they are many] can work with equanimity and with the same devotion to and interest in work H

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

A as they did defore. Men are not saints. The inevitable result, in all fields of administration, of this phenomenon is the natural resentment, heart- burning, frustration, lack of interest in work and indifference to the duties, disrespect to the superiors, dishonour of the authority and an atmosphere of constant bickerings and hostility in the administration. When, further, the erstwhile subordinate becomes the present superior, the vitiation of the atmosphere has only to be imagined. This has admittedly a deleteri_ou~ effect on the entire administration.

ll is not only the efficiency of those who are thus superseded which deteriorates on account of such promotions, but those superseding have also no incentive to put ia their best in work. Since they know that in any case they would be promoted in their reserved quota, they have no motiva- tion to work hard. Being assured of the promotion from the beginning, their attitude towards their duties and their colleagues and superiors is also coloured by this complex. On that account also the efficiency of administra- D tion is jeopardised.

99. With respect, neither the majority nor the minority in the Con- stitution Bench has noticed this aspect of the reservations in promotions. The latter decisions which followed Rangachari were also not called upon to and henco have not considered this vital aspect. The efficiency to which the majority has referred is with respect to the qualifications of those who would be promoted in the reserved quota.

The expression "consistently with the maintenance of efficiency of administration" used in Article 335 is related not only to the qualifications of those who are appointed, it covers all consequences to the efficiency of administration on account of such appointments. They would necessarily include the demoralisation of those already in employment who would be adversely affected by such appointments, and its effect on the efficiency of adminstration. The only reward that a loyal, sincere and hard-working employee expects and looks forward to in his service career is promotion. G If that iiself is denied to him for no deficiency on his part, it places a frustrating damper on his zeal to work and reduces him to a nervous wreck. There cannot be a more damaging effect on the administration than that caused by an unreasonable obstruction in the advancement of the career of those who run the administration. The reservations in promotions are, H therefore, inconsistent with the efficiency of administation and are imper-

INDRA SAWHNEY v: U.0.1. [SAWANT, J.] 933

missible under the Constitution. A

100. There is also not much merit in the argument that the adequacy of representation in the administr~tioon has to be j~dged not only on the basis of quantitative representation but also on the basis of qualitative representation in the administration and, hence, the reservations in promo- B tions are a must. There is no doubt, as stated earlier, that the adequacy of representation in administration has also to be judged on the basis of the qualitative representation in it. However, the qualitative representation cannot be achieved overnight or in one generation. Secondly, such repre- sentation cannot be secured at the cost of the efficiency of the administra- tion which is an equally paramount consideration while keeping reservations. Thirdly, the qualitative representation can be achieved by keeping reservations in direct recruitment at all levels. It is true that there is some basis for the grievance that when reservations are kept only in direct recruitment, on many occasions the rules for appointment to the posts particularly at the higher level of administration, are so framed as to keep no room for direct recruits. However, the remedy in such cases lies in ensuring that direct recruitment is provided for posts at all levels of the administration and the reservation is kept in all such direct recruitments.

101. It must further be remembered that there is a qualitative dif- ference in the conditions of an individual who has entered the sec:ices as against those of one who is out of it, though both belong to the backward classes. The former joins the mainstream of all those similarly employed. Although it is true that he does not on that account become socially advanced at once, in some respects, he is not dissimiarly situated. The handicaps he suffers on account of his social backwardness can be removed, once employed, by giving him the necessary relaxations, exemptions, concessions and facilities to enable him to compete with the rest for the promotional posts where the promotions are by selection or on merit-cum-seniority basis. A provision can also be made to man the selection committees with suitable persons including those from the backward classes and to devise methods of assessment of merits on impartial basis. The selection committee should also ensure that the claims of the backward class employees are not superseded. These measures, instead of the exclusive quota, will go a long way in instilling self-confidence and self-respect in those coming into the service through the reserved quotas. They may not have to face and work in a hostile and disrespectful atmosphere since they would have won their promotional posts H

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

A by dint of their seniority and/or merit no less commendable than those of others. The urge to show merit and shine would also contribute to overall efficiency of the administation.

102. There is no doubt that the meaning of the various expressions and used in Article 16, viz., "matters relating to employment or appoint- B 1 11 1 ment to any office any employment or office' and "appointments or posts'' ',

cannot be whittled dowo to mean only initial recruitment and hence the normal rule of the service jurisprudence of the loss of the birth-marks cannot be applied to the appointments made under the Article. However, as pointed out earlier, the exclusive quota is not the only form of reserva- c tion and where the report to it such as in the promotions, results in the inefficiency of the administration, it is illegal. But that is not the end of the road nor is a backward class employee helpless on account of its absence. Once he gets an equal opportunity to show his talent by coming into the mainstream, all he needs is the facility to achieve equal results. The facilities can be and must be given to him in the form of concessions, D exemptions etc. such as relaxation of age, extra attempts for passing the examinations, extra training period etc. along with the machinery for impartial assessment as stated above. Such facilities when given are also a part of the reservation programme and do not fall foul of the requirement of the efficiency of the administration. Such facilities, however, are impera- E tive if, not only the equality of opportunity but also the equality of results is to be achieved which is the true meaning of the right to equality.

Question 9:

Whether the matter should be sent back to the Five- Judge F Bench?

103. The attacks against the impugned orders as formulated in the aforesaid eight questions, have been dealt with above. The only other attack against the impugned orders is that they are based on the Manda! Com- G mission Report which suffers in its findings on some counts.

In the first imstance, it must be remembered that the Government could have passed the impugned orders without the assistance of any report such as the Manda! Commission Report. Nothing prevents the Government from providing the reservations if it is staisfied even otherwise that the H backward classes have inadequate representation in the services undt r the

INDRA SAWHNEY v. U.0.1. (SAWANT, J.] 935

State. It is however, a different matter that in the present case the Govern- A ment had before it an investigation made by a independent Commission appointed under Article 340 of the Constitution to enable it to come to its conclusions that certain social groups which are socially and educationally backward are inadequately represented in the services and thereofore, deserved reservation therein. The Commission has given its own list of such backward classes and that it based primarily on the lists prepared by the B States. It is true that in certain States, there are no lists and the Commission has, therefore, made its own lists for such States. However, while issuing the impugned orders the Government has taken precaution to see that the socially and educationally backward classes would comprise in the first phase the castes and communities which are common to the lists prepared by the c Mandal Commission and the States. The result is that it is the State Govern- ment lists of SEBCs which would prevail for the time being and those SEBCs mentioned in the lists of the Manda! Commission which are not in the State lists would not get the benefit of the impugned orders. It is not seriously contended before u" that the State lists are prepared without application of mind or without any basis. It is no doubt urged that in certain States some castes and communities have come to be introduced in the lists of backward classes on the eve of the elections and thus the lists have been expanded from time to time. Assuming that there is some grain of truth in this allegation, the grievance in that behalf can be redressed by a fresh appraisal of the State lists by an independent machinery. The further attack against the lists prepared by the Mandal Commission is that they are prepared without an adequate and a proper survey with the result that some social groups which ought not to be in the SEBC lists have been included therein whereas others which ought to be there have been excluded. The third attack against the Commis- sion-lists is that since there are States where there exist no lists ofSEBCs, the F SEBCs in those States would suffer and that would be a discrimination against them. The last attack is that the Commission has exaggerated the number of castes. While there are allegedly only 1051 backward castes, the Commission has given a list of about 3743 castes. Assuming that all these contentions are correct, all that they come to is that certain social groups which ought not to be in the SEBC lists are found there wheras others which G ought not to be there are not there. Such defects can be expected in any survey of this kind since it is difficult to have a cent per cent accurate result in any socialogical survey. In any case although the Manda! Commission on its survey has found the total population of SEBCs as 52 per cent, the reserva- H

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

A uon it has recommended is only 27 per cent which is almost half of the ;ioplllation of SEBCs according to its survey. The impugned orders have also restricted.the reservations to 27 per cent. It is not suggested that the margin of error of the survey is as high as 50 per cent popnlationwise. Assuming, however, that the population of the SEBCs is not even 27% of the total population, even this defect can be cured by another independent survey. For the present, the list as envisaged in the impugned orders may be given effect to and in the meanwhile, a new Commission as suggested earlier may be appointed for preparing an accurate list of the backward classes. No harm would be done if in the meanwhile, at least half of those who are found backward are given the benefit of the impugned orders, If, therefore, the only purpose of sending the matter to the Five-Judge Bench now, is to find out the validity of the lists of the SEBCs, that purpose can hardly be fulfilled since the Bench cannot on its own and without adequate material invalidate the lists. The Bench would also have to direct a fresh inquiry into the matter, if it comes to the conclusion that the grievace made in that behalf is correct. The D purpose would be better served if this Bench itself directs that the matter be examined afresh by a Commission newly appointed for the purpose. In any view of the matter, it is unnecessary to send the case back to the Five-Judge Bench.

104. The answers to the questions may now be summarised as follows: E Question 1:

Clause (4) of Article 16 is not an exception to clause (1) thereof. It only carves out a section of the society, viz., the backward class of citizens for whom the reservations in services may be kept. The said clause is exhaustive F of the reservations of posts in the services so far as the backward class of citizens is concerned. It is not exhaustive of all the reservations in the services that may be kept. The reservations of posts in the services for the other sections of the society can be kept under clause (1) ofthat Article.

Question 2: G The backward class of citizens referred to in Article 16(4) is the socially backward class of citizens whose educational and economic back- wardness is on account of their social backwardness. A caste by itself may constitute a class. However, in order to constitute a backward class the H caste concerned must be socially backward and its educational and

INDRA SAWHNEY v. V.0.1. (SAWANT, J.] 937

eccnomic backwardness must be on account of its social backwardness. . A The economic criterion by itself cannot identify a class as backward unless the economic backwardness of the class is on account of its social backwardness.

The weaker sections mentioned in Article 46 are a genus of which B backward class of citizens mentioned in Article 16(4) constitute a species. Article 16(4) refers to backward classes whlch are a part of the weaker sections of the society and it is only for the backward classes who are not adequately represented in the services, and not for all the weaker sections that.the reservations in services are provided under Article 16(4). C Question 3:

No reservations of posts can be kept in services under the State based exclusively on economic. criterion either under Article 16(4) or under Article 16(1). D

Question 4:

Ordinarily, the reservations kept both under Article 16(1) and 16(4) together should not exceed 50 per cent of ,the appointments in a grade, cadre or service in any particular year. It is only for extraordinary reasons that this percentage may be exceeded. However, every excess over 50 per cent will have to be justified on valid grounds which grounds will have to be specifically made out.

The adequacy of representation is not to be determined merely on the basis of the over all numerical strength of the backward classes in the services. For determining the adequacy, their representation at different levels of administration and in different grades has to be taken into consideration. It is the effective voice in the administration and not the total number which determines the adequacy of representation. G Question 5:

Article 16(4) permits classification of backward classes into back- ward and more or most backward classes. However, this classification is permitted only on the basis of the degrees of social backwardness and not on the basis of the economic consideration alone. H

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

A If backward classes are classified into backward and more or most backward classes, separate quotas of reservations will have to be kept for each of such classes. In the absence of such separate q•10tas, the reserva- tions will be illegal.

It is not permissible to classify backward classes or a backward class B social group into an advanced section and a backward section either on economic or any other consideration. The test of advancement lies in the capacity to compete with the forward classes. If the advanced section in a backward class is so advanced as to be able to compete with the forward classes, the advanced section from the backward class no longer belongs c to the backward class and should cease to be considered so and denied the benefit of reservations under Article 16(4).

Question 6:

The provisions for reservations in the services under Article 16(4) D can be made by an executive order. ,.. Question 7:

There is no special law of judicial reivew when the reservations under Article 16(4) are under scrutiny. The judicial review will be available only in the cases of demonstrably perverse identification of the backward classes and in the cases of unreasonable percentage of reservations made for them.

Question 8:

It is not necessary to answer the question since it does not arise in the present case. However, if it has to be answered, the answer is as follows:

The reservations in the promotions in the services are unconstitution- al as they are inconsistent with the maintenance of efficiency of administra· tion. - G However, the backward classes may be provided with relaxations, exemptions, concessions and facilities etc. to enable them to compete for the promotional posts with others wherever the promotions are based on selection or merit-cum-seniority basis.

H Further, the committee or body entrusted with the task of selection

INDRA SAWHNEY v. U.O.l. [SAWANT, J.] 939

must be representative and manned by suitable persons including those A from the backward classes to make an impartial assessment of the merits.

To ensure adequate representation of the backward classes which mea11s representation at all levels and in all grades in the service, the rules of recruitment must ensure that there is direct recruitment at all levels and in all grades in the services. B

Question 9:

The matter should not be referred back to the Five-Judge Bench since almost all the relevant questions have been answered by this Bench. The grievance about the excessive, and about the wrong inclusion and c exclusion of social groups in and from the list of backward classes can be examined by a new Commission which may be set up for the purpose.

105. Hence the following order: D ORDER

1. The benefit uf clause 2(1) of the first order dated 13th August, 1990 cannot be given to the advanced sec- tions of the socially and educationally backward classes because they no longer belong to the socially and educa- E tionally backward classes although they may be members of the caste, occupational groups or other social groups which might have been n~med as socially and education- ally backward classes in the lists which are issued or which may be issued under clause 2(iv) of the said order. This F clause if so read down, is valid.