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

backwardness of Scheduled Castes/Scheduled Tribes etc. which is a fester- A ing sore in our body politic." The Hon'ble Minister then proceeded to state,'' the Members generally said that the recommendations_ should be accepted. Some Members said that it should be accepted in toto. Some Members have said that it should be accepted with certain reservations. Some Members said, there should be other criteria than only social and B educational backwardnecs. But all these are ideas which Government will take into account. The problem that confronts Government today is to arrive at a satisfactory definition of backward classes and bring about an acceptance of the same by all the state concerned." The Hon'ble Minister referred to certain difficulties the Government was facing in implementing the recommendations of the Commission on account of the large number c of castes identified and on account of the variance in the State lists and the Manda! Commission lists and stated that consultation with various departments and State Governments was in progress in this behalf. He stated that a meeting of the Chief Ministers would be convened shortly to take decisions in !he matter. D

The Report was again discussed in the year 1983. The then Hon'hle Minister for Home Sri P.C. Sethi, while replying to the debate stated: nwhile referring to the Commission whose report has been discussed today, I would like to remind the House that although this Commission had been E appointed by our predecessor Government, we now desire to contin.ue with this Commission and implement its recommendations. 1'

77ie Office Memorandum dated 13th August, 1990:

21Copy pinpoint21. No action was, however, taken on the basis of the Mandal F Commission Report until the issuance of the Office Memorandum on 25th September, 1991. On that day, the then Prime Minister Sri V.P. Singh made a statement in the Parliament in which he stated inter alia as follows:

"After all, if you take the strength of the whole of the G Government employees as a proportion of the population, it will be 1% or 1-1/2. I do not know exactly, it may be less than 1%. We are under no illusion that this 1% of the population, or a fraction of it will resolve the economic problems of the whole section of 52%. No. We consciously H

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

A want to give them a position in the decision-making of the country, a share in the power structure. We talk about merit. What is the merit of the system itself? That the section which has 52% of the population gets 12.55% in Government employment. What is the merit of the system? That in Class I employees of the Government it gets only B 4.69%, for 52% of the population in decision-making at the top echelons it is not even one-tenth of the population of the country; in the power structure it hardly 4.69. I want to challenge first the merit of the system itself before we come and question on the merit, whether on merit to reject this c individual or that. And we want to change the structure basically, consiciously, with open eyes. And I know when changing the structures comes, there will be resistance ...... .

What I want to convey is that treating unequals as equals is the greatest injustice.

And, correction of this injustice is very important and that is what I want to convey. Here, the National Front Government's Commitment for not only change of Govern- ment, but also change of the social order, is something of great significance to all of us: it is a matter of great sig- Pificance. Merely making programmes of economic henefit to various sections of the society will not do .......

There is a very big force in the argument to involve the poorest in the power structure. For a lot of time we have acted on behalf of the poor. We represent the poor ......

Let us forget that the poor are begging for some crumbs. They have suffered it for thousands of years. Now they are fighting for their honour as a human being......... G A point was made by Mahajan ji that if there are different lists in different States how will the Union List harmonise? It is so today in the case of the Scheduled Castes and the Scheduled Tribes. That has not caused a problem. On the H same pattern, this will be there and there will be no prob-

INDRA SAWHNEY v. U.0.1. 567

lem." A 22.The Office Memorandum dated 13th August, 1990 reads as fol- lows:

OFFICE MEMORANDUM B Subject : Recommendations of the Second backward Clas- ses Commission (Manda! Report) - Reservation for Socially and Educationally Backward Classes in ser- vices under the Government of India.

In a multiple undulating society like ours, early achieve- c ment of the objective of social justice as enshrined in the Constitution is a must. The Second Backward Classes Commission called the Manda! Commission was estab- lished by the then Government with this purpose in view, which submitted its report to the Government of India on D 31.12.1980.

2. Goveynment have carefully considered the report and the recommendations of the Commission in the present context regarding the benefits to be extended to the socially E and educationally backward classes as opined by the Com- mission and are of the clear view that at the outset certain weightage has to be provided to such classes in the services of the Union and their Public Undertakings. Accordingly orders are issued as follows:- F (i) 27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC.

(ii) The aforesaid reservation shall apply to vacancies to be filled by direct recruitment. Detailed instructions relating to the procedures to be followed for enforcing G reservation will be issued separately.

(iii) Candidates _belonging to SEBC recruited on the basis of merit in an open competition on the same standards prescribed for the general candidates shall not be H

568 SlJPREME COlJJ(T REPORTS 119921SUPP.2 S.C.R.

A adjusted against the reservation quota of 27%. (iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Manda! Commission and the State Governments' lists. a list of such castes/com- B munities is being issued separately.

(v) The aforesaid reservation shall take effect from 7.8.1990. However, this will not apply to vacancies where the recruitment process has already been in- itiated prior to the issue of these orders. c

3. Similar instructions in respect of public sector undertak- ings and financial institutions including public sector banks will be issued by the Department of Public Enterprises and Ministry of Finance respectively. D sd/- (Smt. Krishna Singh) Joint Secretary to the ~ovt. of India!!

23Copy pinpoint23. Soon after the issuance of the said Memorandum there was E wide-spread protest in certain Northern States against it. There occurred serious disturbanace to law and order involving damage to private and public property. Some young people lost their lives hy self-immolation. Writ Petitions were filed in rhis Court questioning the said Memoradum along with applications for staying the operation of the Momorandum. It F was stayed hy this court.

The Office Memorandum dated 25th September, 1991:

24Copy pinpoint24. After the change of the Government at the centre following the general election held in the first half of 1991 1 another Office Memorandum G was issued on 25th September, 1991 modifying lhe earlier Memorandum dated 13th August. 1990. The faler Mnmornndum reads as follows:

OFFICE MEMORANDUM

Subject: Recommendations of the Second Backward Clas- H ses Commission (Manda! Rcpor!) - Reservation for socially

INDRA SAWHNEY v. U.0.1. 569

and Educationally Backward Classes in service under the A • Government of India .

The undersigned is directed to invite the attention to O.M. of even number dated the 13th August, 1990, on the above mentioned subject and to say that in order to enable the poorer sections of the SEBCs to receive the benefits of B reservation on a preferential basis and to provide reserva- tion for other economically backward sections of the people not covered by any of the existing schemes of reservation, Government have decided to amend the said Memorandum with immediate effect as follows:- c (i) Within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates are not available, unfilled vancancies shall be filled by the other SEBC candidates.

(ii) 10% of the vancies in civil posts and services ·under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reserva- tion.

(iii) The criteria for determining the poorer sections of the SEBCs or the other economirnlly backward sec- F tions of the people who are not covered by any of the existing schemes of reservations are being issued ... separately .

The O.M. of even number dated the 13th August, 1990, shall be deemed to have been amended to the eXlent G specified above.

sd/- (A.K. Harit) DY. SECRETARY TO THE GOVERNMENT OF INDIA" H

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

25Copy pinpoint25. Till now, the Central Government has not evolved the econoiflic- criteria as contemplated by the later Memorandum, though the hearing of these writ petitions was adjourned on more than one occasion for the purpose. Some of the writ petitions have meanwhile been amended chal- lenging the later Memorandum as well. Let us notice at this stage what do B the two memoradums say, read together. The first provision made is: 27% of vacancies to be filled up by direct recruitment in civil posts and services under the Goverument of India are reserved for backward classes. Among the members of the backward classes preference has to be given to can- didates belonging to the poorer sections. Only in case, sufficient number of such candidates are not available, will the unfilled vacancies he filled by c other backward class candidates. The second provision made is: backward class candidates recruited on the basis of merit in open competition along with general candidates shall not be adjusted against the quota of 27% reserved for them. Thirdly, it is provided that backward classes shall mean those castes and communities which are common to the list in the report D of the Manda! Comruission and the respective State Government's list. It may be remembered that Manda! Commission has prepared the list of backward classes State-wise, Lartly, it is provided that 10% of the vacancies shall be reserved for other economically backward sections of the people who are not covered by any of the existing schemes of reservations. As E stated above, the criteria for determining the poorer sections among the backward classes or for determining other economically backward sections among the non-reserved category has so far not been evolved. Though the first Memorandum stated that the orders made therein shall take effect from 7.8.1990, they were not in fact acted upon on account of the orders F made by this Court.

Issues for consideration:

26Copy pinpoint26. These writ petitions were heard in the first instance by a Con- stitution Bench presided over by the then Chief Justice Sri Ranganath - G Misra. After hearing them for some them. the Constitution Bench referred them to a Special Bench of Nine Judges, "to finally settle the legal position relating to reservations." The reason for the reference being, 1'that the several Judgments of this Court have not spoken in the same voice on this issue and a final look by a larger Bench in our opinion should settle the la\v in an authoritative wayn,

INDRA SAWHNEY v. U.0.1. 571

We have, accordingly, heard all the parties and intervenors who wished to be heard in the matter. Written submissions have been filed by almost all the parties and intervenors. Together, they run into several hundreds of pages.

At the inception of arguments, counsel for both sides put their heads together and framed eight questions arising for our discussion. They read as follows:

(1) Whether Article 16(4) is an exception to Article 16(1) and would be exhaustive of the right to reservation to posts in services under the State? c (II) What would be the content of the phrase Backward Class in Article 16(4) of the Constitution and whether caste by itself could con- stitute a class and whether economic criterion by itself could identify a class for Article 16(4) and whether backward Classes in Article 16(4) would D include the Article 46 as well?

(III) If economic criterion by itself could not constitute a Backward Classe under Article 16(4) whether reservation of posts in services under the State based exclusively on economic criteria would be covered by Article 16(1) of the Constitution? E

(IV) Can the extent of reservation to posts in the services under the State under Article 16(4) or. if permitted under Articles 16(1) and 16(4) together, exceed 50% of the posts in a cadre or Service under the State or exceed 50% of the appointment in a cadre or Service in any particular year F and can such extent of reservation b~ determined without determining the inadequacy of representation of each class in the different categories and grades of Services under the State?

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

(VI) Would making "any provision" under Article 16(4) for reserva- tion by the State'' nccessnrily have to be by la¥/ made by the Legislatures 11

of the State or by law made by Parliament? Or could such provisions be H

572 SUPREME COURT REPORTS [1992] SUPP. 1 S.C.R.

A made by an executive order?

(VII) Will the extent of judicial review be limited or restricted in regard to the identification of Backward Classes and the percentage of reservations made for such classes, to a demonstrably perverse identifica- .. tion or a demonstrably unreasonable percentage? B (VIII) Would reservation of appointments or posts "in favour of any Backward Class" be restricted to the initial appointment to the post or would it extend to promotions as well?

For the sake of convenient discussion and in the interest of clarity, c we found it necessary to elaborate them. Accordingly, we have re-framed the questions. We shall proceed to answer them in the same order. The rcframed questins are:

l(a) Whether the 'provision' contemplated hy Article 16(4) must D necessarily be made by the legislative wing of the State?

(h) If the answer to clause (a) is in the negative, whether an executive order nlaking such a provision is enforceable without incorporating it into a rule made under the proviso to Article 309?

E 2(a) Whether clause (4) of Article 16 is an exception tr, clause (1) of Article 16?

(b) Whether clause (4) of Article 16 is exhaustive of the special provisions that can he made in favour of 'hackward class of citizens'? \Vhcthcr it is exhaustive of the special provisions that can he made in F favour of all sections. classes or groups?

( c) Whether reservations can be made under clause (1) of Article 16 or whether it permits only ext.ending of preferences/concessions?

G 1(a) What does the expression 'backward cla<S of citizens' in Article 16( 4) means?

(b) Wh•other backward classes can be identified on the basis and with reference to caste alone?

H (c) Whether a class, to be designated as a backward class, should be

INDRA SAWllNEY v. U.0.1. 573

situated similarly to the S.Cs./S.Ts.? A ( d) Whether the 'means' lest can be applied in the course of iden- tification of backward classes? And if the answer is yes, whether providing such a test is obligatory'

4(a). Whether the backward classes can be identified only and ex- B elusively with reference to economic criteria?

(b) Whether a criteria like occupation-cum-income without reference to caste altogether, can be evolved for identifying the backward classes'!

5. Whether the backward classes can be further categorised into c backward and more backward categories'!

6. To what extent can the reservation be made?

(a) Whether the 50% rule enunciated in Balaji a binding rule or only D a rule of caution or rule of prudence?

(b) Whether the 50% rule, if any, is confined to reservations made under clause (4) of Article 16 or whether it takes in all types of reservations that can be prm1ded under Article 16? E (c) Furthc1 while applying 50% rule, if any, whether an year should be taken as a unit or whether the total strength of the cadre should be looked to?

(d) Whether Devadasan was correctly decided? F

7. Whether Article 16 permits reservations being provided m the matter of promotions?

8. Whether reservations are anti-meritian? To what .extent are Ar- ticles 335,38(2) and 46 of the Constitution relevant in the matter of con- struing Article 16? G

9. Whether the extent of judicial review is restricted with regard to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse identification or a demonstr~bly unreasonable percentage? H

574 SUPREME COURT REJ'ORTS [1992J SUPP. 2 S.C.R.

A 10. Whether the distinction n1adc in the Mernorandun1 between 'poorer sections' of the back\vard classes and others permissible under Article 16?

11. Whether the reservation of 10% of the posts in favour of 'other economically backward sections of the people who are not covered by any B of the existing schemes of the reservations) made by the Office Memoran- dum dated 25.9.1991 permissible under Article 16?

26A. Before we proceed to deal with the question, we may be permiued to n1ake a few observations: The questions arising herein are not c only of great morr1enl and consequence, they are also extremely delicate and sensitive. They rLprcsent con1plcx problems of Indian Society, wrapped and presented to us as constitutional and legal questions. On son1e of these questions, the decisions of this Court have not been uniform. They speak with more than one voice. Several opposing points of view have been pressed upon us with equal force and passion and quite often with great emotion. We recognize that these view-points are held genuinely by the respective exponents. Each of them feels his own point of view is the only right one. We cannot, however, agree with all of them. We have to find - and we have tried 0ur best lo find - answers which.according to us are the right one> constitutionally and legally. Though, we are siting in a larger Bench, we have kept in mind the relevance and significance of the principle of Stare decisis. We are conscious of the fact that in law certainty, consis~ tency and continuity are highly desirable features. Where a decision has stood the test of time and has never been doubted, we have respected it - unless, of course, there are compelling and strong reasons to depart from it. Where, however, such uniformity is not found, we have tried to ans\ver the question on principle keeping in mind the scheme and goal of our Constitution and the material placed before us.

There are occasions when the obvious needs to be stated and, we think, this is one such occasion. We are dealing with complex social, constitutional and legal questions upon which there has been a sharp division of opinion in the Society, which could have been settled more satisfactorily through political processes. But that was not to be. The issues have been relegated to the judiciary - Which shows both the disincliriation of the executive to grapple with these sensitive issues as also the confidence

INDRA Si\WHNEY v. U.0.1. 575

reposed in this organ of the Slate. We are reminded of what Sir Anthony A Mason, Chief Justice of Australia once said:

nsocicty exhibits more signs of conflict and disagreement today than it did bcforc ......... Governmenls have always had the option of leaving questions to be determined by the courts according to law ............. . B There are other reasons, of course ---- that cause govern- ments to leave decisions to be made by Courts. They are of expedient political character. The community may be so divided on a particular issue that a government feels that the safe course for it to pursue is to leave the issue to be c resolved by the Courts, thereby diminishing the risk it will alienate significant sections of the Community."

But then answering a question as to the legitimacy of the Court to decide such crucial issues, the learned Chief Justice says: D "........my own feeling is that the people accept the Courts as the appropriate means of resolving disputes when gover- nemtns decide not to attempt to solve the disputes by the political process." (Judging the World: Law and Politics in the Worlds E Leading Courts - page 343)

We hope and trust that our people too are mature enough to ap- preaciate our endeavour in the same spirit. They may well remember that "the law is not an abstract concept removed from the society it serves, and F that Judges, as safe-guarders of the Constitution, must constantly strive to narrow the gap between the ideal of equal justice and the reality of social inequality."

.PART- II G Before we pro,ceed to answer the questions.aforementioned, it would be helpful to notice (a) the debates in the Constituent Assembly on Article 16 (draft Article 10); (b) the decisions of this Court on Articles 16 and 15; and (c) a few decisions of the U.S.Supreme Court considering the validity of race-conscious programmes. H

57<1 SUl'Rl'.MF COllkT REPORTS l1992J SUPP. 2 S.C.R.

A 771e f~rarning ofAniclc l6: Dehutes in the Constituent AssenibZr

25. Draft Article 10 corresponds lo Article 16. The debate in the Cnnst1tucnt Assembly on draft Article 10 and particularly clause (3), • thereof feorrcsponding to clause (4) of Article 16) helps us lo appreciate I he background and understand the objective underlying Article 16, and in B particular, clause (4) thereof. The origi11al intent comes out clear and loud l ro111 lhcse debaLrs.

Omitting draft clause (4) [which corresponds to clause (5) of Article 1.6) the three clauses in draft Article 10, as introduced in the ConstitLLent c As;;e1nb1y, read as follows:

"10(1 ). There shall be equality of opportunity for all citizens in matters of employment under the State.

D (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth or any of them by ineligible fur any office under the State.

(3) Nothing in this article shall prevent the State from making any provision for the reservation of appointments E or posts in favour of any class of citizens who in the opinion of the State are not adequately represented in the services under the Statc.'1

lt was the Drafting Committee under the Chairmanship of Dr. B.R. F Ambedkar that inserted the word ''backward" in between the words "in favour of any'' and "class of citizens". The discussion on draft Article 10 took place on November 30, 1948. Serveral members including S/Sri Damodar Swamp Seth, Pt. Hirdya Nath Kunzru and R.M. Nalavade com- - plained that the expressions 'backward' and 'backward classes' are quite vague and are likely to lead to complications in future. They suggested that appointments to public services should be made purely on the basis of merit. Some others suggested that such reservations should be available only for a period of first ten years of the Coustitution. To this criticism the Vice-President of the Assembly (Dr. H.C.Mookherjee) replied in the following words:

INDRA SAWHNEY v. U.0.1. 577 11 Before we start the general discussion, I would like to place a partaicular matter before the Honourable Mem- bers. ·The clause which has so long been under discussion affects particularly certain sections of our population · sections which have in the past been treated very cruelly - and although we are -today prepared to make reparation for the evil deeds of our ancestors, still the old story continues, at least here and ihere, and capita'l is made out of it outside India ....... .! would therefore very much ap- preciate the permission of the House so that I might give full discussion on this particular matter to our brethren of the backward classes. Do 1 have that permiS&ion?" c

26. In the ensuing discussion Sri Chandrika Ram (Bihar-General) supported draft clause (3) with great passion. He pleaded for reservations in favour of Backward Classes both in services as well as in the legislature, just as in the case of Harijans. ~ D Sri Chandrika Ram was supported by another Member Sri P.Kakkan (Madras-General) and Sri T.Channiah (Mysore), Sri Chan~Jah, in par- ticular, co~mented upon the Members coming from Northern India being puzzled about' the meaning of the expression 'backward class' and proceeded to clarify the same in the following words:- E

"The backward classes of people as. understood in South India, are tho~e classes of people who are educationaily backward, it is those classes that require adequate repre- sentation in the services. There are other classes of people F who are socially backward; they also require adequate representation in the service."

27Copy pinpoint27. After the discussion proceeded for some more time, Sri KM.Munshi, who was a Member of the Drafting Committee rose to explain the content of the word 'backward'. He said:- G

"\\'.hat we want to secure by this clause are two things. In the fundamental right in the first clause we want to aChieve the highest efficiency in the services of the State-highest efficiency which \Vould enable the services to function H

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

A effectively and promptly. At the same time, in view of the conditions in our country prevailing in several provinces, we want to see that backward classes, classes who are really backward, should be given scope in the State services; for it is realised that State services give a status and an oppor- tunity to serve the country, and this opportunity should be B extended to every community, even among the backward people. That being so, we have to find out some generic term and the worcl "backward class" was the best possible 11 term.

c Sri Munshi proceeded to state:

"! may point out that in the province of Bombay for several years now, there has been a definition of backward classes, which includes not only Scheduled Castes and Scheduled Tribes but also other backward classes who are economi- D cally, educationally and socially backward. We need not, therefore, define or restrict the scope of the word "back- ward" to a particular community. Whoever is backward will be covered by it and I think the apprehensions of the Honourable Members are not justified." E Ultimately Dr. B.R.Ambedkar, the Chairman of the Drafting Com- mittee, got up to clarify the matter. His speech, which put an end to all discussion and led to adopting of draft Article 10(3), is worth quoting in extenso, since it throws light on several questions relevant herein: F ".... there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens. It is the desire of many Members of this House G that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qi.alifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this principle of equality or opportunity.

INDRA SAWHNEY v. U.O.L 579

An'Other view mostly shared by a section of the House is that, if this principle is to be operative-and it ought to be operative in their judgment to its fullest extent-there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That i~ the second point of view we have. Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the ad- c ministration. 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 oppor- tunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration. If honourable Members will bear these facts in mind-the-three principles we had to reconcile,-they will see that no better formula could be produced than the one that is embodies in sub- clause (3) of Article 10 of the Constitution. 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 community or a few com- munites, that situation should disappear and that the others also must have an opportunity of getiing 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 service to the fullest 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 oppor- tunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 H

580 SlJPREMio COURT REPORTS IJ992J SUPP. 2 S.C.R.

A per cent of the total posts under the Stale and only 30 per cent arc retained as the unreserved. Couid anybody say that the reservation of 30 per cent as open to general con1pcti 8

tion won!d he satisfactory fron1 the point of view of giving effect to the first principic, na:ncly, that there shall be equality of opportunity'! h_ ca11not be in my judgment. B fhereforc the seats to be reserved, if the rcscrvalion is lo be consistent with sub .. clausc (1) of Article 10, must oe confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effec- tive in operation. If honourable Members understand this c position that: we havl'- to safeguard two things, na1nelyi the principle of equality of opportunity and at the sanic tirnc satisfy the den1and of con1munities which have not had so far representation in the State, then, I an1 sure they will agree that unless you use so1nc such qualifying µhrase as D "backward 11 the exception 1na<le in favour of reservation will ultimately cat up the rule altogether. Nothing of the rule will ren1ain. That I think if I 111ay say so, is the justification \vhy the Drafting Con1n1itlee undertook on its own shoulders the responsibility of introducing the word "back- ward'' which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly.......

Somebody asked me: 11 \Vhat is a back\vard conHnunity'"? Wcli, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Governmenl. 11

The above material makes it amply clear that the objective behind clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper cas~es i.e., a fe\V communities, was. no\v sought to he made broad-based. The back\vard communities \:\'ho \¥ere till then kept out of apparatus of poYv·cr, \Vere sought to be inducted thercinto an<l since that v.'as not practicable in the I-f nonnal course, a special provi~ion was 1nade to effectuate the said objcc-

INDRA SAWHNEY v. U.0.1. 581

tivc. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities - to give them a share in the administrative apparatus and in the governance of the community.

Decisions of this Court on Articles 16 and 15:

29Copy pinpoint29. Soon after the enforcement of the Constitution two cases reached this Court from the State of Madras - one under Article 15 and the other under Article 16. Both the cases were decided on the same date and by the same Bench. The one arising under Article 15 is State of Madras v. Champakam Dorairajan, [1951] S.C.R. 525, and the other arising under Article 16 is Venkataraman v. State of Madras A.I.R. 1951· S.C. 229. By C virtue of certain orders issued prior to coming into force of the Constitu- tion,-popularly known as 'Communal G.O.' - seats in the Medical and Engineering Colleges in the State of Madras were apportioned in the following manner: Non-Brahmin (Hindus)-6, Backward Hindus-2, Brah- min-2, Harijan-2, Anglo Indians and Indian Christians-1, Muslims-1. Even D after the advent of the Constitution, the G.O. was being acted upon which was challenged by Smt. Champakam as violative of the fundamental rights gurantecd to her by Articles 15(1) and 29(2) of the Constitution of India. A Full Bench of Madras High Court declared the said G.O. as void and un-enforceable with the advent of the Constitution. The State of Madras brought the matter in appeal to this Court. A Special Bench of Seven E Judges heard the matter and came to the unanimous conclusion that the allocation of seats in the manner aforesaid is violative of Articles 15(1) and 29(2) inasmuch as the refusal to admit the respondent (writ petitioner) notwithstanding her higher marks, was based only on the ground of caste. The State of Madras sought to sustain the G.O. with reference to Article F 46 of the Constitution. Indeed the argument was that Article 46 over-rides Article 29(2). This argument was rejected. The Court pointed out that while in the case of employment under the State, clause (4) of Article 16 provides for reservations in favour of backward class of citizens, no such provision \Vas made in Article 15. G

30Copy pinpoint30. In the matter of appointment to public services too, a similar communal G.O. was in force in the State of Madras since prior to the Constitution. In December, 1949, the Madras Public Service Commission invited applications for 83 posts of District Munsifs, specifying at the same time that the selection of the candidates would be made from the various H

582 SUPREME COURT REPORTS [1992] SUPP. 2 S.CR.

A castes, religions and communities as specified in the communal G.C. The 83 vacancies were distributed in the following manner: Harijans-19, Mus- lims-5, Christians-6, Backward Hindus-10, Non-Brahmin (Hindus)-32 and Brahmins-11. The petitioner Venkataraman (it was a petition under Article 32 of the Constitution) applied for and appeared at the interview and the admitted position was that if the provisions of the communal G.O. were to B be disregarded, he would have been selected. Because of the G.O., he was not selected (he belonged to Brahmin community). Whereupon he ap- proached this Court. S.R.Das, J. speaking for the Special Bench referred to Article 16 and in particular to Clause (4) thereof and observed: "Reser- vation of posts in favour of any backward class of citizens cannot, therefore, c be regarded as unconstitutional''. He proceeded to hold:

"The Communal G.O. itself makes an express reservation of seats for Harijans & Backward Hindus. The other categories, namely, Muslims, Christians, Non-Brahmin D Hindus & Brahmins must be taken to have been treated as other than Harijans & Backward Hindus. Our attention was drawn to a schedule of Backw.ird Classes set out in Sch.III to Part I of the Madras Provincial & Subordinate Service Rules. It was, therefore, argued that Backward Hindus would mean Hindus of any of the communities mentioned in that Schedule. It is, in the circumstances, impossible to· say that classes of people other than Harijans & Backward Hindus can be called Backward Classes. As regards the posts reserved for Harijans & Backward Hin- dus it may be said that the petitioner who does not belong to those two classes is regarded as ineligible for those reserved posts not on the ground of religion, race, caste etc. but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the ineligibility of the petitioner for any of the posts reserved for communities other than Harijans and G Backward Hindus cannot but be regarded as founded on the ground only of his being a Brahmin. For instance, the petitioner may be far better qualified than a Muslim or a Christian or a Non-Brahmin candidate & if all the posts reserved for those communities were open to him he would be eligible for appointment, as is conceded by the learned

INDRA SAWHNEY v. U.0.1. 583

Advocate General of Madras, but, nevertheless, he cannot expect to get any of those posts reserved for those different categories only because he happens to be a Brahmin. His inaligibility for any of the posts reserved for the other communities, although he may have far better qualifica- tions than those possessed by members falling within those categories, is brought about only because he is a Brahmin B & does not belong to any of those categories. This in- eligibitlty created by the Communal G.O. does not appear to us to be sanctioned by cl.(4) of Art.16 and it is an infringement of the fundamental right guaranteed to the petnr. as an individual citizen under Art.16(1) & (2). The c Communal G.O., in our opinion, is repugnant to the provisions of Art.16 & is as such void and illegal."

31Copy pinpoint31. Sri Ram Jethmalani, the learned counsel appearing for the Respondent-State of Bihar placed strong relinace on the above passage. D He placed before us an extract of the Schedule of the backward classes appended to the Madras Provincial and Subordinate Service Rules, 1942. He pointed out that clause (3)(a) in Rule 2 defined the expression back- ward classes to mean "the communities mentioned in Schedule III to this part", and that Schedule III is exclusively based upon caste. The Schedule E describes the communities mentioned therein under the heading 'Race, Tribe or Caste'. It is pointed out that when the said Schedule was sub- stituted in 1947, the basis of classification still remained the caste, though the heading "Races, Tribes and Castes!! was removed. Mr. Jethmalani points out that the Special Bench took note of the fact that Schedule III was nothing but a collection of certain 'communities', notified as backward classes and yet upheld the reservation in their favour. According to him, the decision in Ve11katarama11 clearly supports the identification of back- ward classes on the basis of caste. The Communal G.O. was struck down, he submits, only in so far as it apportioned the remaining vacancies between sections other than Harijans and backward classes. It is rather curious, says the counsel, that the decision in Venkataraman has not attracted the importance it deserves all these years; All the subsequent decisions of this court refer to Champakam. Hardly any decision refers to Venkataraman notwithstanding the fact that Venkataraman was a decision rendered with reference to Article 16. H

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

32Copy pinpoint32. Soon after the said two decisions were rendered the Parliament intervend and in exercise of its constituent power, amended Article 15 by inserting clause (4), which reads:

"Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the B advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes."

It is worthy of notice that the Parliament, which enacted the first Amendment to the Constitution, was in fact the vel'}' same Constituent c Assembly which had framed t[,e Constitution. The speech of Dr. Ambed- kar on the occasion is again instructive. He said:-

"Then with regard to article 16, clause (4), my submission is this that it is really impossible to make any reservation D which would not result in excluding somebody who has a caste. I think it has to be borne in mind and it is one of the fundamental principles which I believe is stated in Mulla's edition on the very first page that there is no Hindu who has not a caste. Every Hindu has a caste-he is either a Brahmin or a Mahratta or a Kundby or a Kumbhar or a E carpenter. There is no Hindu-that is the fundamental proposition-who has not a caste. Consequently, if you make a reservation in favour of what are called backward classes which are nothing else but a collection of certain castes, those who are excluded are persons who belong to certain F c·astes. Therefore, ih the circumstances of this country, it is impossible to avoid reservation without excluding some people who have got a caste."

33Copy pinpoint33. After the enactment ohhe First Amendment the first case that came up before this Court is Ba/aji v. The State of Mysore. (In the year G 1961, this Court decided the General Manager, Southern Railway v. Rasngachari, but that related to reservations in favour of the Scheduled Castes and Scheduled Tribes in the matter of promotion in the Railways. Rangachari will be referred to at an appropri~te stage later.) In the State· of Karnataka, reservations were in force since a few decades prior to the advent of the· Constitution and were being continued even thereafter. On

INDRA SAWHNEY v. U.0.1. 585

July 26, 1958 the State.of Mysore issued an order under Article 15(4) of the Constitution declaring all the communities excepting the Brahmin community as socially and educationally backward and reserving a total of 75 per cent seats in Educational Institutions in favour of SEBCs and SCs/STs. Such orders were being issued every year, with minor variation in the percentage of reservations. On 13th of July, 1972, a similar order was issued wherein 68 per cent of the seats in all Engineering and Medical B Colleges and Technical Institutions in the State were reserved in the favour of the SEBCs, SCs and STs. SEBCs were again divided into two categories- backward classes and more backward classes. The validity of this order was questioned under Article 32 of the Constitution. While striking down the said order this Court enunciated the following principles:- c (1) Clause (4) of Article 15 is a proviso or an exception to clause (1) of Article 15 and to clasue (2) of Article 29;

(2) For the purpose of Article 15(4), backwardness must be both social and educational. Though caste in relation to D Hindus may be a relevant factor to consider; in determining the social backwardness of a class of citizens, it cannot be made the sole and dominant test. Christians, Jains and Muslims do not believe in caste system; the test of caste cannot be applied to them. Inasmuch as identification of all backward classes under the impugned order has been made solely on the basis of caste, it is bad.

(3) The reservation made under Clause (4) of Article 15 should be reasonable. It should not he such as to defeat or nullify the main Rule of equality contained in clause (1). While it is not possible to predicate the exact permissible percentage of reservations, it can be stated in a general and broad way tkt they should be less than 50 per cent.

(4) A provision under Article 15(4) need not be in the form of legislation; it can be made by an executive order.

(5) The further categorisation of backward classes into backward and morn backward is not warranted by Article 15(4)." H

586 SUPREME COURT REPORTS 11 992] SUPP. 2 S.C.R.

A It must be remembered that Ba/aji was a decision rendered under and with reference to Article 15 though it contains certain observations with respect to Article 16 as well. ,. '

34Copy pinpoint34. Soon after the decision in Ba/aji this Court was confronted with B a case arising under Article 16 - Devadasan v. Union of India. This was also a petition under Article 32 of the Constitution. It related to the validity of the 'carry- forward' rule obtaining in Central Secretariat Service. The reservation in favour of Scheduled Castes was twelve and half per cent while the reservation in favour of Scheduled Tribes was five per cent. The c 'carry-forward' rule considered in the said decision was in the following terms: "If a sufficient number of candidates considered suitable by the recruiting authorities, are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The D number of reserved vacancies, thus, treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course; and to the extent to which approved candidates are not available in that year against this additional ·quotas, a corresponding addition should be made to the number of reserved vacancies in the second following year." Because sufficient number of SC/ST candidates were not available during the earlier years the unfilled vacancies meant for them were carried forward as cantemplated by the said rule and filled •tp in the third year - that is in the year 1961. Out of 45 appointments made, 29 went to Scheduled Castes and Scheduled Tribes. In other words, the extent of reservation in the thir.d year came to 65 per cent. The rule was declaied unconstitutional by the'Constitution Bench, with Subba Rao, J. dissenting. The majority held that the carry forward rule which resulted in more than 50 per cent of the vacancies being reserved in a particular year, is bad. The principle enunciated in Ba/aji regarding 50 percent was followed. Subba • Rao, J. in his dissenting opinion, however, upheld the said rule. The G learned Judge observed: 11 The expression, "nothing in this article 11 is a legis- lative device to express its intention in a most emphatic way that the power conferred thereunder is not limited in any way by the main provision but falls outside it. It has not really carved out an exception, but has preserved a power untrammelled by the other provisions of the Article." The learned H Judge opined that once a class is a backward class, the question whether

INDRA SAWHNEY 1·. U.O.l. 587

it is adequately represented or not is left to the subjective satisfaction of the State and is not a matter for this Court to prescribe.

We must, at this stage, clarify that a 'carry-forward' rule may be in a form different than the one considered in Devadasan. The Rule may provide that the vacancies reserved for Scheduled Castes or Scheduled •• Tribes shall not be filled up by general (open competition) canddates in case of non-availability of SC/ST candidates and that such vacencies shall be carried forward.

35Copy pinpoint35. In the year 1964 another case from Mysore arose, again under Article 15 - Chitra/ekha v. State of Mysore. The Mysore Government had by an order defined backward classes on the basis of occupation and c income, unrelated to caste. Thirty per cent of seats in professional and technical institutions were reserved for them in addition to eighteen per cent in favour of SCs and STs. One of the arguments urged was that the identification done without taking the caste into consideration is impermis- sible. The majority speaking through Subba Rao, J., held the identifkation D or classification of backward classes on the basis of occupation-cum-in- ) come, without reference to caste, is not bad and does not offend Article 15(4).

36Copy pinpoint36. During the years 1968 to 1971, this Court had to consider the validity of identification of backward classes made by Madras and Andhra E Pradesh Governments. Minor P.Rajendran v. State of Madras related to specification of socially and educationally backward classes with reference to castes. The question was whether such an identification infringes Article

15. Wanchoo, CJ., speaking for the Constitution Bench dealt with the contention in the following words: F "The contention is that the list of socially and educationally backward classes for whom reservation is made under r.5 nothing but a list o(. certain castes. Therefrore, reservation ' in favour of certain castes based only on caste considera- tions violates Art.15(1), which prohibits discrimination on G the ground of caste only. Now if the reservation in q11estion had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would !Je violative of Art.15(1). But it must· not be forgotten t~at a caste is also a class of citizens H

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

A and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educational~y back- ward class of citizens within the meaning of Art. 15(4) ........... .lt is true that in the present cases the list of socially and educationally backward classes has been B specified by caste. But that does not necessarily mean that caste was the sole consideration and that person belonging to these castes are also not a class of socially and educa- tionally backward citizens .........As it was found that mem- bers of these castes as a whole were educationally and c socially backward, the list which had been coming on from as far back as 1906 was finally adopted for purposes of Art.15(4)

In view however of the explanation given by the State of Madras, which has not been controverted by and rejoinder, it must be accepted thal though the list shows certain castes, the members of those castes are really classes of educationally and socially backward citizens. No attempt '· was made on behalf of the petitioners/appellant to show that any caste mentioned in this list was not educationally and socially backward. In this state of the pleadings, we must come to the conclusion that though the list is prepared ca.steRwise, the castes included therein are as a whole educationally and socially backward and therefore the list is not violative of Art.15. The challenge to r5 must there- fore fail." F

37Copy pinpoint37. The shift in approach and emphasis is obvious. The Court now held that a caste is a class of citizens and that if a caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15(4). More over the burden of proving that the specification/identification was bad, was placed upon the petitioners. In case of failure to discharge that burden, the identification made by the State was upheld. The identification made on the basis of caste was upheld inasmuch as the petitioner failded to prove that any caste mentioned in the list was not socially and educationally backward.

INDRA SA WI !NEY v. lJ.0.1. 589

38Copy pinpoint38. Another Constitution Bench took a simiiar vic\v in Triloki Nath A (1969j I S.C.R. 103.

Rajendran was expressly referred to and followed in Pecriakanlppon v. State of Tamil Nadu, a decision rendered by a Bench of three Judges (J.C.Shah, K.S.Hegdc and A.N.Grover, .JJ.). This was a Petition under Article 32 of the Constitution and one arising under Article 15. The B argument was that identification of SEBCs having been done on the basis of caste alone is bad. Repelling the argument, Hegde,J. held:-

Thcrc is no gainsaying the fact that there are nu1nerous 11

castes in this country which are socially and educationally backward. To ignore their existence is to ignore the facts c of life. Hence, we are unable to uphold the contention that impugned reservation is not in accordance withArt.15( 4}."

39Copy pinpoint39. Again, in State of Andhra Pradesh v. Bairam, a case arising fro1n Andhra Pra<!esh, a Division Bench (Vaidyalingam and Mathew,JJ.) D adopted the same approach and upheld the identification made by Andhra Pradesh Government on the basis of caste. Answering the criticis1n that the Backward Classes Commission appointed by the State Government did not do a scientific and thorough job, the Bench observed:

1 'In our opinion, the Cornmission has taken considerable pains to collect as much relevant material as possible i:o judge the social and educational backwardness of the per- sons concerned. When, for-· instance, it had called for in- formation regarding the student population in classes X and XI from nearly 2224 institutions, if only 50% of the institutions sent replies, it is not the fault of the Commission for they could not get more particulars. If the commission has only to go on doing the work of collecting particulars and materials, it will be a never ending matter. In spite of best efforts that any commission may make in collecting materials and datas, its conclusions cannot be always scien- G tifically acccurate in such matters. Therefore, the proper approach, in our opinion should be to see whether the relevant data and materials referred to in the report of the Comtnission justify its conclusions. In our opinon, there was sufficient inaterial to enable the Conuuission to be H

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

A satisfied that the persons included in the list are really socially and educationally bakcward. No doubt there are few instances where the 'educational average is slightly above the State average, but that circumstances by itself is not enough to strike down the entire list. Even assuming there are few categories which are little above the State B average, in literacy, that is a matter for the State to take note of and review the position of such categories of persons and take a suitable decision."

We respectfully agree with these 0bservations. c Answering the main criticism that the list of SEBCs was wholly based upon caste, the Bench observed:-

"To conclude, though prima facie the list of Backward Classes which is under attack before us may be considered to be on the basis of caste, a closer examination will clearly show tha• it is only a description of the group following the particular occupations or professions, exhaustively referred to by the Commission. Even on the assumption that the list is based exclusively on caste, it is clear from the materials before the Commission and the reasons given by it in its report that the entire caste is socially and educationally backward and therefore their inclusion in the list of Backward Classes is warranted by Art.15(4). The groups mentioned therein have been included in the list of Backward classes as they satisfy the various tests, which have been laid down by this Court for ascertaining the social and educational backwardness of a class."

40Copy pinpoint40. In certain cases including Janaki Prasad Parimoo v. State of Jammu & Kashmir [1973] 3 S.C.R. 236 and State of Uttar Pardesh v. Pradip Tandon [1975] 2 S.C.R. 761, it was held that poverty alone cannot be the basis for determining or identifying the social and educational backward- ness. It was emphasised that Article 15(4) - or for that matter Article 16(4) - is not an instance of poverty alleviation programme. They were directed mainly towards removal of social and educational bachwardness, it was pointed out. In Pradip Tandon, a decision under Article 15(4), Ray,C.J. H speaking for the Division Bench of three Judges opined:

INDRA SAWHNEY v. U.0.1. 591 1 'Broadly stated, neither caste nor race nor religion can be A made the basis of classification for the purposes of deter- mining social and educational backwardness within the meaning of Article 15(4). When Article 15(1) forbids dis- crimination on grounds only of religion, ·race, caste, caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recog- B nised as a criterion of social and educational backwardness Article 15(4) will stultify Article 15(1). It is true that Article 15(1) forbids discrimination only on the ground of religion, race, caste but when a classification taken recourse to caste as one of the criteria in determining socially and educa- c tionally backward classes the expression "classes" in that case violates the rule of expressio unious est exclusio alterius. The socially and educationally backward classes of citizens are groups other than groups based on caste."

D This statement was made without referring to the dicta in Rajendran, a decision of a larger Bench. 'fhough Balaji· was referred to, we must point out with respect that Balaji does not support the above statement. Balaji indeed said that "though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, !' ..;annot be made the sole or the dominant test in that E behalf."

41Copy pinpoint41. Thomas marks the beginning of a new thinking on Article 16, though the seed of this thought is to be found in the dissenting opinion of Subba Rao,J. in Devadasan. The Kerala Government had, by amending F Kerala State and Subordinate Service Rules empowered the Government to exempt, by order, for a specified period, any member or members belonging to Scheduled Castes or Scheduled Tribes and already in service, from passing the test which an employee had to pass as a precondition for promotion to next higher post. Exercising the said power, the Government. of Kerala issued a notification granting "temporary exemption to members G already in service belonging to any of the Scheduled Castes or Scheduled Tribes from passing all tests (unified, special or departmental test) for a period of two years". On the basis of the said exemption, a large number of employees belonging to Scheduled Castes and Scheduled Tribes, who had been stagnating in their respective posts for want of passing the departinental tests, were promoted. They were now required to pass the H •.

592 SUPREME r:Ol!RT REPORTS [1992[ SUPP. 2 S.C.R.

A tests within the period of exemption. Out of 51 vacancies \Vhich arose in the category of Upper Division Clerks in the year 1972, 34 were filled up by members of Scheduled Castes leaving only 17 for others. This was questioned by Thomas, a mcn1ber belonging to non-reserved category. 1-lis grievance was: but for the said concession/exemption given to mcn1bers of Scheduled CJstcs/Scheduled Tribec. he would have been promoted to one B of those j'XISts in view of his pas~ing the relevant tests. He contended that Article 16(4) permits only reservations in favour of backward classes but not such an exemption. This argument was accepted by the Kerala High Court. It also upheld the further contction that inasmuch as more than 50% vacancies in the year had gone to the members of Scheduled Castes as a result of the said exemption, it is bed for violating the 50% rule in Ba/aji. c The Stale of Keraia carried the matter in appeal ta this Court which was allowed by a majority of 5:2. AU the Seven Judges wrote separate opinions. The head-note to the decision in Supreme Court Reports succintly sets out the principles enunciated in each of the judgments. We do not wish to burden this judgment by reprnducing them here. We would rest content with delineating the broad features emerging from these opinions. Ray, CJ. D held that Article 16(1), being a facet of Article 14, permits reasonable classification. Article 16(4) clarifies and explains that classification on the basis of backwardness. Classification of Scheduled Castes does not fall within the mischief of Article 16(2) since Scheduled Castes historically oppressed and backward, are not castes. The concession granted to them is permissible under and legitimate for the purposes of Article 16(1). The E rule giving preference to an un-representcd or under-represented back- ward communicy docs not contravene Articles 14, 16(1) or 16(2). Any doubt on this score is removed by Article 16(4). He opined further that for determining \Vl1ether a reservation is excessive or not one must have to look to the total number of posts in a given unic or depari.inent, as the case may be. Mathew, J. agreed that Article 16(4) is not an exception to Article F 16(1), that Article 16(1) permits reasonable classification and that Scheduled Castes are not 'castes' \\othin the meaning of Article 16(2). He espoused the theory of 'proportional equality' evolved in certain American decisions, lie does not refer to the decisions in Balaji or Devadasan in his opinion nor does he express any opinion the extent of permissible reserva- G lion. Beg, J. adopted a different reasoning. According to him, the rule and the orders issued thereunder was 11 a kind of reservation" falling under Article 16(4) itself. Krishna Iyer,). was also of the opinion that Article 16(1) being a facet of Article 16 permits reasonable classification, that Article 16(4) is not an exception but an emphatic statement of whal is inherent in Article i6(1) and further that Scheduled Castes are not 'costes' within the tncaning of Article 16(2) but a collection of castes, races an<l groups.

lNDRA Si\WHNEY v. U.0.1. 593

Article 16(4) is one made of reconciling the claims of backward people and the opportunity for free competition the forward sections are ordinarily entitled to, held the learned Judge. He approved the dissenting opinion of Subba Rao,J. in lJevadasan. Fazal Ali, J. too adopted a similar approach. The learned Judge pointed out "it we read Article 16(4) as an exception to Article 16(1) then the inescapable conclusion would be that Article 16(1) does not pern1il any classification at all because an express provision has been made for this in clause (4). This, however, is contrary to the basic concept of equality contained in Article 14 which implicitly permits clas- sification in any form provided certain conditions are fulfilled. Further- more, if no classification can be made under Article 16(1) except reservation contained in clause (4) then the mandate contained in Article 335 would be defeated." He held that the Rule and the orders impugned are referable to and sustainable under Article 16. The learned Judge went further and held that the rule of 50% evolved in Balaji is a mere rule of caution and was not meant to be exhaustive of all categories. He expressed the opinion that the extent of reservation depends upon the proportion of the backward classes to the total population and their representation in public services. He expressed a doubt as to the correctness of the majority view in Devadasan. Atnong the n1inority Khanna, J. preferred the view taken in Ba/aji and other cases to the effect that Article 16(4) is an exceptiL>n to Article 16(1). He opined that no preference can be provided in favour of backward classes outside clause (4). AC.Gupta, J. concurred with this view. E

42Copy pinpoint42. The last decision of this Court on this subject is in K.C. Vasant Kumar & Anr. v. State of Kamataka, [1985[ Suppl. 1 S.C.R. 352. The Five Judges consti1uting the Bench wrote separate opinions, each treading a path of his own. Chandrachud, C.J. opined that the present reservations should continue for a further period of 1.5 years making a total oi 50 years from the date of commencement oi the Constitution. He added that the means lest must be applied to ensure that the benefit of reservations actually reaches the deserving sections. Desai, J. was of the opinion that the only basis upon which backward classes should be identified. is the economic one and that a time has come to discard all other bases. Chin- nappa Raddy, J. was of the view that identification of backward classes on the basis of caste cannot be- taken exception to for the reason that in the Indian context caste is a class. Caste, the learned Judge said, is the prin1ary index of social backwardness, so that social back\vardncss is often readily idcntificablc \Vith reference to a person's caste. It it is found in the case of a given caste that a fc\v mt:1nhcrs have progressed far enough so as tG H

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

A compare favourably with the forward classes in social, economic and educational fields, an upper income ceiling can perhaps be prescribed to ensure thal the benefit of reservation reaches the really deserving. He opined that identification of SEBCs in the Indian milieu is a difficult and comlex exercise, which does not admit of any rigid or universal tests. It is not a matter for the courts. The !!backward c]ass of citizens 11 , he held, are B the very same SEBCs referred to in Article 15( 4). The learned Judge condemned the argument that reservations are likely to lead to deteriora- tion in efficiency or that they are anti-merit. He disagreed with the view that for being identified as SEBCs, the relevant groups should be com- parable to SCs/STs in social and educational backwardness. The learned c Judge agreed with the opinion of Fazal Ali, J. in 77wmas that the rule of 50% in Ba/uji is a rule of caution and not an inflexible rule. At any rate, he said, it is not for the court to lay down any such hard and fast rule. A.P.Sen, J. was of the opinion that the predominant and only factor for making special provision under Article 15(4) or 16(4) should be poverty and that caste should be used only for the purpose of identification of groups comparable to Scheduled Castes/Scheduled Tribes. The reservation should continue only till such time as the backward classes attain a state of enlightenment. Venkataramiah, J. agreed with Chinnappa Rcddy,J. that identification of backward classes can be made on the basis of caste. He cited the Constituent Assembly and Parliamentary debates in support of this view. According to the learned Junge, equality of opportunity revolves around two dominant principles viz., (i) the traditional value of equality of opportunity and (ii) the newly appreciated - though not newly conceived - idea of equality of results. He too did not agree with the argument of 'merit'. Application of the principle of in~ividual merit, un-mitigated by other consideration, may quite often lead to inhuman results, he pointed out. He supported the imposition of the 'means' test but disagreed with the view that the extent of reservations can exceed 50%. Periodic review of this list of SEBCs and extention of other facilities to them is stressed.

Decisions of U:S. Supreme Court G

43Copy pinpoint43. At this stage, it would be interesting to notice the development of law on the subject in the U.SA. The problem of blacks (Negroes) -holds a parallel to the problem of Scheduled Castes, Scheduled Tribes and Backward Classes in India, with this difference that in U.S.A. the problem is just about 200 years' old and far less complex. Blacks were held not

INDRA SAWHNEY v. U.0.1. 595

entitled to be treated as citizens. They were the lawful property of their masters iDred Scott v. Sanford, [f857] 15 L.E.691]. In spite of the Thirteenth Amendment abolishing slavery and the Fourteenth Amendment guarantee- ing equality, it persisted in South and Mid-West for several decades. All challenges to slavery and aparthied failed in courts. World War II and its aftermath, however, brought about a radical change in this situation, the culmination of which was the celebrated decisions in Brown v. Board of Education, (1954] 98 L.E. 591 and Bolling v. Shrarpe, [1954] 98 L.E.583 over-ruling the 'separate but equal' doctrine evolved in Plessey v. Ferguson [1986] 41 L.E.256. In quick succession followed several decisions which effectively out-lawed all discrimination against blacks in all walks of life. But the ground-realities remained. Socially, educationally and economical- C ly, blacks remained a backward community. Centuries of discrimination, deprivation and degradation had left their mark. They were still unable to compete with their white counterparts. Siiniliar was the case of other minorities like Indians and Hispanics. It was not a mere case of economics. It was. really a case of 'persisting effects of past-descriminalion'. The D Congress, the State Universities and other organs of the State took note of these lingering effects and the consequent disadvantage suffered by them. They set out to initiate measures to a1neliorate them. That was the com- mand of the Fourteenth Amendment. Not unnaturally, these measures were challenged in C9urts-with varying results. The four decisions ex- amined hereinafter, rendered during the period 1974-1990 mirror the conflict and disclose the judicial thinking in that country.

44Copy pinpoint44. The first decision is in Defunis v. Charles Odeqaard, [1974] 40 L.Ed. 2nd. 164. The University of Washington Law School - a school operated by the State - evolved, in December 1973, an admissions policy whereunder certain percentage of seats in the Law School \Vere reserved for minority racial groups. Para 6 of the progran1mc ::-.lated, "because certain ethnic groups in our society have historically been limited in their access to the legal profession and because the resulting under-repre- sentation can affect the quality of legal services available to members of such groups, as well as limit their opportunity for full participalion in !he governance of our comnzunities, the faculty recognises a special obligation in its admissions policy to contribute to the solution of the problem." (emphasis added) Procedure for admission for the minority students was different and of a lesser standard than the one adopted for all others. Defuni~, a non-minority student was denied admission while granting it to 1-1

596 SUl'REMJ' COURT REPORTS I1"92] SUPP. 2 S.C.R.

A minor.ity applicants 'Nith lo\ver evaluation. He commenced an action chal~ lcnging the validity of the programme. According to him, the special admissions programme \Vas violative of the Equal Protection Clause in the Fourteenth Amendment. The Trial Court granted the requested relief including admission lo the plaintiff. On Appeal, the Supreme Court of Washington reversed the Trial Court's Judgment. It upheld the con- B stilutionality of the Admissions Policy. The matter was brought by Defunis to United States Supreme Court by way of certiorar' The Judgment of the Washington Supreme Court was stayed pending the decision. By the time the matter reached the stage of final hearing, Defunis had arrived in the final quarter of the last term. In view of this circums.tance, five Members c of the Court held that the Constitutional question raised has become 'moot' (academic) and, therefore, it is unnecessary to go into the same. r :Ur of the Judges Brennan, Douglas, White and Marshall, JJ., however, did not agree with that view. Of them, only Douglas, J. recorded his reasons for upholding the Special Admissio.1s' Programme. The learned Judge was of D the opinion that the Equal Protection Clause did r.Jt require that law schools employ an admissions formula based solely upon testing results and under-graduate grades nor does it prohibit Law Schools from evaluating an applicant's prior achievements in the light of the barriers that he had to overcome. It wuul<l be appropriate to quote certain observations of the learned Jurlge to the above affect which inter a/ia emphasise the impor- E tance of looking to the proniise and potential of a candidate rather than to mere score: obtained in Lhc relevant tests. He said:

"the Equal Protection Clause did nor enact a requ1Tement thal Law Schools employ as the sole criterion for admis- F sions a formula based upon the LSAT (Law School Ad- mission Test) and under·graduate graCes, nor dues it prohibit law schools from evaluating an applicant's prior achievements in light of the barriers that he had to over- come. A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverence and ability that would lead a fairmin<led admissions committee to conclude that he shouws more promise for law study than the son of a rich alumnus who achieved better grades at Harvard. That applicant \Vuuld not be offered admission because he is hlack, hut hccausc as an individual he has shown he has

INDRA SAWllNEY 1: U.O.l. 597

the potential, while the Harvard 1n£1n may have taken less advantage of the vastly superior opportunities offered to him. Because of the weight of the prior handicaps, the black applicant may not realize his full potential in the first year of law school, or even in the full three years, but in the long pull of a legal career, his achievements may far outstrip those of his classmates whose earlier records appeared superior by cenventional criteria.''

The learned Judge while agreeing that any programme employing racial classification to favour certain minority groups would be subject to strict scrutiny under Equal Protection Clause, yet concluded that the material placed before the Court did not establish that Defunis was in- vidiously discriminated against because of his race. Accordingly, he opined that the matter should be remanded for fresh trial to consider whether the plaintiff has been individually discriminated against becasuc of his race. D

45Copy pinpoint45. The next case is in Regents of the University of California v. Allan Bakke (1978] 57 L.Ed. 2nd 750. The Medical School of the University of California at Davis had been following two admissions programmes, one in respect of the 84 seats (general) and the other, a special admissions programme under which only disadvantaged members of certain minority races were considered for the remaining 16 scats - the totBl seats available being 100 a year. For these 16 scats, none except the members of the minority races were considered and evaluated. The respondent. Bakke, a white. could not obtain admission for two consecutive years, in vi.cw of his evaluation score~: while admission was given to members of minority races who had obtained lesser scores than hin1. He questioned the validity of special admissions programme on the ground that it violated the equal protection clause in the Fourteenth Amendment lo the f~onstitution and also Title VI of the Civil Rights Act. 1964. The Trial Co11rt upheld the plea on the ground that the progran1me excluded 1nemhers nf non-minority races from the 16 reserved seats only on the hasis of race and thus operated as a racial quota. It, however, refused to direct the plaintiff to be admitted inasmuch as he failed to establish that he would have heen admitted but for the existence of the special admissions programme. The matter v.'as carried in direct appeal to Suprcn1c Court of C~alifornia, which nol only affirmed the l'rial Court's Judgrnent in so far as it held the special admis- H

598 SUPREME COURT REPORTS f1992J SUPP. 2 S.C.R.

A sion programme to be invalid but also granted admission to the plaintiff- respondcnt into the Medical School. It was of the view that the University had failed to prove that in the absence of special admissions programme the respondent would not have been admitted. The matter was then carried to the United States Supreme Court, where three distinct view-points B emerged. Brennan, White, Marshall and Blackmun, JJ. were of the opinion that the special admissions programme was a valid one and is not violative of the Federal or State Constitutions or of Title VI of the Civil Rights Act,

1964. They were of the opinion that the purpose of overcoming substantial, chronic minority under-representation in the medical profession is suffi- ciently important to justify the University's remedial use of race. Since the c Judgment of the Supreme Court of California prohibited the use of race as a factor in University admissions, they reversed that Judgment. Chief .Justice Warren Burger, Stevens, Stewart and Rehnquist, JJ. took the other view. They affirmed the judgment of the California Supreme Court. They D based their judgment mainly on Title VJ oi Civile Rights Act, 1964, which provided that "no person in the United States shall, on the ground of race, colour or national origin, be excluded from participation ini be denied the benefits of or be subjected to discrimination under any programme or activity receiving Federa.! Financial assistance.'' They opined that Bakke was the victim of, what may be called, reverse discrimination and that his exclusion from consideration in respect of the 16 seats being solely based on race, is impermissible. Powell, J. tnok the third view in his separate opinion, partly agreeing and partly disagreeing with the other view-points. He based his decision on Fourteenlh Amendment alone. He did not take into consideration the 1964 Act. The learned Judge held that though racial and ethl'Jc classifications of any kind are inherently suspect and call for the most exacting judir.ial scrutiny, the goal of achieving a racially balanced student body is sufficiently compelling to justify consideration of race in admissions decisions under certain circumstances. He was of the opinion that while preference can be provided in favour of minority races in the matter of admission, setting up of quotas (which have the effect of foreclos- ing cosidcration of aJJ others in respect thereot) is not necessary for achieving the said compelling goal. He was of the opinion that impugned programme is bad since it set apart a quota for minority races. He sus- tained the admission granted to Bakke on the ground that the University H failed to establish that even without the quota, he would not have been

TNDRA SAWHNEY 1·. U.O.L 599

admitted. A

46Copy pinpoint46. It would be useful to notice the three points of view in a little more detail. Brennan, J. (with whom Marshall, White and Blackmun, .JJ. agreed) observed that though the C.S. Constitution was founded on the principle that "all men are created equal", the truth is that it is not so in fact. Racial discrimination still persists in the society. In such a situation B the claim that the law must be '1colour-blind11 * is more an aspiration rather than a description of reality. The context and the reasons for which Title VI of the Civil Rights Act, 1964 was enacted leads to the conclusion that the prohibition contained in Title VI was intended to be consistent with the commands of the Constitution and no more. Therefore, "any claim that c the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title VI and its legislative history." On the contrary, said the learned .Judge, prior decisions of the court strongly suggest that Title VI does not prohibit the remedial use of race where such action is constitutionally permissible. D

Dealing with the equal protection clause in the Fourthecrrth Amend- ment, the learned Judge observed:

11 The assertion of human equality is closely associated with the proposition that differences in colour or creed, birth or status, are neither significant nor relevant to the way in which person should be treated. Nonetheless, the position that such factors must be "constitutionally an irrelevance 11 summed up by the shorthand phrase 11 our Constitution is colour-blind" has never been adopted by this Court as the proper meaning of the Equal Protection clause. We con-

(This expression was used for the fir:>t time in the dissenting opinion of Harlan, J. in Plessey• v. Ferguson, (1986) 163 U.S. 537. The lesmed Judge said: "... in .,.iew of the Constitution, in the eye of the law, there is in this countiy no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is colour-blind, and neither knows nor tolerates dasses among citizens. In respect of civil rights, a!! citizens are equal before the law, The humblest is the peer of the most powerful. The taw regards man as man, and takes no account of his surroundings or of his colour when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunsl, the final expositor of the fundamental law of the lar.d. has reached the conclusion that it is competent for a state to regulate the .!njoyment by citizens of theil' civil rights solely upon the basis of race." f-I

600 SUPREME COURT REPOR1S [1992J SUPP. 2 S.C.R.

A elude, therefore, that racial classifications are not per se invalid under the FourtheenthAn1endn1ent. Accordingly, we turn to the problem of articulating what our role should be in reviewing state action that expressly classifies by race."

(emphasis added) B After examining a large number of decided cases, the learned Judge held:

11 The conclusion that state educational institutions may constitutionally adopt admissions programs designed to c avoid exclusion of historically disadvanta~ed minorities, even when snch programs expJlcltly take r::tce into account, finds direct support in our cases construing congressional legislation designed to overcome the present effects of past discrimination." D Indeed. held the leMned Judge. fail11re lo lake rnce into account to remedy unequal access to lJniversity programs caused by their nwn or by past societal discrimination wo11lrl not be consist~nt \\lith the mandate of the Fourteenth Amendment. The special adnJis~ions programme wherc- un<lcr whites are excluded from the 16 reserved seats is not had for the E reason that "its purpose is to overcome the effects of segregation by bringing races together." The learned Judge then pointed out the relevance of race and t.he lesser impact of er.onomir. ciisadvantage, with re:fcrence to certain facts and figures, and concluded:

F "While race is positively cnm/ated with di(femnces in GPA and MCA T scores economir: disadvantaKe is not. Thus~ it 1

appears that economically disadvantaged whites do not score less well than economica11y advantaged whites while ei..~onomically advantaged blacks score less well than do disadvantaged whites." G

47Copy pinpoint47. Warren Burger,CJ., with whom Stevens. Stewert and Rehnquist, JJ. agreed opined that since in respect of 1.6 seats reserved for racial n1inorities~ \vhites are totally excluded only on the basis of their race, it is a clear case of ~iscriminJtion on the basi5 of r'1ce and) therefore, violative H of the Fourteenth Amemdment to the Co11stitution as well as Title VJ of

INDRA SAWHNLY 1·. U.O.l. 601

the Civil Rights Act, 1964. A

48Copy pinpoint48. Powell, J. took different line agreeing in part with both the points of view. His approach is this: •. (1) It is not necessary to consider the impact o: the scope of Title VI of the Civil Rights Act inasmuch as the said question was not raised or B considered in the courts below. The matter had to be examined only with reference to the Fourteenth Amendment;

(2) Any distinction based on race is inherently suspect in the light of the equal protection clause and calis for more exacting judicial examina- tion. It is for the State in such a case to establish that the distinction was c precisely tailored to serve a compelling governmental interest.

(3) Since the special admissions program of the University totally excluded some indivi<lual (non-minorities) from enjoying the Statc- provided benefit of admission to the medical school solely because of their race, the classific8.tion m11st be regarded as suspect and it will be sustained only if it is supported by substantial state purpose or interest and only where it is established that the classific~tion is necessary to the accomplish· ment of such purpose or for safeguarding such interest. The lJnlvcrsity has failed to discharge this burden, though the State interest in removing nidcntified disCr_imintion" and attainment of a !!diverse student borly" \Vere certainly compelling interests. In othe.re words, the lJniversity has. failed to establish that for attaining the. said ahjectives, creation of quotas was necessary.

(4) While preferences can be provided in favour of disadvantaged sections, reservation of seats whlch h11d the effect of excluding members of a race or races from those seats altogether, is not permissible. For this reason too, the special admissions program of the University must be held to violate the Fourteenth Amendment.

In the course of his opinion) the learned Judge observed: G

"A facilll in1·cnt to discriminate, however, is evident in petitioner's preference program and not denied in this case. No such facial infirmity exists in an admissions pro· grarn whP-re race or ethnic background is simply one e.le- H

602 SUPREME COURT REPORTS [l992J SUPP. 2 S.C.R.

A ment - to be weighed fairly against other clements - in the selection process ........ .

In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification ·' never before countenanced by this Court. It tells applicants B who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular including their own poten- tial for contribution to educational diversity, they are never c afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class."

In this manner, the learned Judge agreed with Brennan, J. that D race-conscious admissions programmes arc permissible under the Four- teenth Amendment, but qualified the meaning of the race-conscious programmes. At the same time, he agreed with the learned Chief Justice that the special admissions programme of Davis was unconstitutional. He commended the Harvard admissions programme which provided for cer- E tain preferences in favour of racially disadvantaged sections, without reserving any seats as such for them.

49Copy pinpoint49. We may next notice the decision in Fullilove v. Phillip M. K/utznick, [1980] 65 Lawyers Ed. 2nd 90. The Public Works Employmenl F Act, 1977 contained a provision to the effect that atleast 10% of federal funds granted for local public works projects must be used by the State or the local grantee to procure services or supplies from businesses owned by minority group members, defined as United State citizens "who are negroes, spanish-speaking, Orientals, Indians, Eskimos and Aleuts 11 • Regulations were framed under the Act and guidelines issued requiring the grantees and private contractors to seek out all available qualified bona fide minority business enterprises (MBEs), to the extent feasible, for ful- filling the 10% MEE requirement. The guidelines provided that contracts shall be awarded to bona fide MBEs, even though they are not the lowest bidders if their bids reflect merely attempts to cover costs inflated by the present effects of prior disadvantage and discrimination. This requirement

INDRA SAWHNEY v. U.0.1. 603

coufd, however, be waived in individual cases if the grantee established the infeasibility of the requirement. Several associations of construction con- tractors and Sub-contractors filed a suit in the Federal District Court for a declaration that the said provision of the Public Works Employment Act and the regulations made thereunder are void and unforccable being violative of the equal protection clause of the Fourteenth Amendment and equal protection component of the due process clause of the Fifth Amend- B ment. The challenge failed in the District Court as well as in the Court of Appeals. The matter was then carried to the United State Supreme Court. By a majority of 6:3 (Stewart, Rehnquist and Stevens, JJ. dissenting) the Supreme Court repelled the challenge. Chief Justice Burger speaking for himself. White and Powell, JJ. stated the object of the impugned provision c in the following words:

''The device of a 10% MBE participation requirement, subject to administrative waiver, was thought to be required to assure minority business participation, otherwise it was thought that repetition of the prior experience could be expected, with participation by minority business account- ing for an inordinately small percentage of government 11 contracting.

The learned Chief Justice then proceeded to examine 11 the question whether as a nleans to accomplish these plainly constitutional objectives, congress can use racial and ethnic criteria in this limited way as a condition attached to a federal grant." Indeed, he posed the same question in this form: "Whether the limited use of racial and ethnic criteria is a constitu- tionally permissible means for achieving the congressional objectives'', and proceeded to answer the same - after referring exhaustively to the earlier decisions of the court relating to school admissions - in the following words:

"We held that 'Just as the race ofsu1dents must be considered in determining whetJJ.er a constitutional violation has oc- cu"ed, so also must race be considered in formulating a G remedy."

(emphasis added)

"............ .In dealing with this facial challenge to the statute, doubts must be resolved in support of the congressional H

S!ll'Rl'MI·: COllRT Rl·:l'ORTS !l'l'J21SUPP.2 S.C.R.

A ju<lg111l'.nl t.hal this limitl'.d progra1n is a necessary step to effectuate th1.; constitutioniil mandate for equality of economic npportunity."

511. Marshall, J. speaking for himself, Brennan and Blackmun, JJ. in his concurring opinion, pointed out the approach lo be adopted in judging the validity of the race-conscious programmes and concluded with these rcsnun<ling word.1.: 1 'ln my scp<1ralc op1n1on 111 Bakke, I recounted the in- genious and pervasive forms of discrimination against the Ncgrn" long condoned under the Constitution and con- c cluded that "the position of the Negro today in Amercia is the tragic hut inevitable consequence of centuries of une- qual treatment" I there stated:

"ll is because of a legacy of unequal treatment that D \Ve now musl permit the institutions of this society lo give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in An1erica. For far too - long, the doors io those positions have been shut to Negroes. If \VC are ever to hccomc a fully in~ E tcgratcd society, one in which the color of a person's skin will not <let.ermine the opportunities available to him or her, we mus! he willing to take steps hl open those doors."

51Copy pinpoint51. \Ve may now examine the decision in MP.fro Brriadcasting, Inc. v. Federal C"on11nunications ('on1111ission, rendered on June 27, 1990 (Copies of the decision have been n1ade availahJe to us by Sri K. Parasaran, counsel for Union of India). Under !he Communications Ac.t 1934, the Federal Comn1unica1inns Commi~_..;ion was vested wi1h the exclu~ive ;:inthority to grant lir:enccs lo persons wishing to construct and op~ratc Radio and (J Television Broadcilsting Station in United Stal.cs. The grant of licences was to he based on 'puhlic convenience, interest or necessity'. The commission found that over the last two decades relatively fewer members of minority groups have held broadcasting licences, indeed less than one percent. Even as late as in 1986, they owned just 2.1%. The Con1mission proposed to remedy this under-representation and accordingly evolved a policy Ji whereundcr n1inoritics were to he granlcd certain preferences in the matter

INDRA SAWHNEY v. U.0.1. 605

of grant of these licences. The policy had two prominent features. The first A v.,:as to provide for a pr.cference in the matter of evaluation of applicants and the second was, what may be called, 'distress sale policy'. The second feature meant that where the qualifications of a licencee to hold a broad- cast licence comes into question he was entitled to transfer the said licence to save the disqualification provided such transfer is made in favour of a member of a minority. The said two features were questioned by Metro B Broadcasting Inc., which matter was ultimately brought to the Supreme Court. The decision of the majority (Brennan, White, Marshall, Blackmun and Stevens, JJ.) rendered by Brennan, J. is note-worthy for the shift of approach from the earlier decisions. It is now held that a classification based on race (b,; nign race conscious measures) is constitutionally permis~ sible even ii it is not designed to compensate victims of past governmental vr societal discrimination so long as it serves important governmental objectives and is substantially related to achievement of those objectives. In other words, it is held that it is not necessary that the court apply a strict standard of scrutiny to evaluate racial classification to ascertain whether it is ner::essary for achieving the relevant objective and further whether it is narrowly tailored to achieve a compelling state interest. Brennan, J. relied upon the opinion of Chief Justice Burger in Fullilove for this liberal approach. It would be appropriate to quote certain observations from his opinion:

"We hold that benign race-conscious measures mandated by Congress - even if those mansures are not !!remedial" in the sense of being designed to compensate \ictims of past governmental or societal discrimination - are constitution- ally permissible to the extent that they serve important governmental ob; xtives within the power of Congress and are substantially related to achievement of those objec·- F tives. .Congress and the FCC have selected the minon ..v ownership policies primarily to promote programming diversity, and they urge that such diversity is an important governmental objective that can serye a~ a constitutional basis for the preference policies. We agree .......... . G Against this background, we conclude that the interest in enhancing broadcast diversity is, at the very least an impor- tant governmental objective and is therefore a sufficient basis for the Commission's minority ownership policies ... we niust pay close attention to the expertise of the Com- H

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

A mission and the fact finding of the Congress when analyzing the nexus between minority ownership and programming 1 diversity. With respect to this 'complex" expirical question, ibid., we are required to give "great weight to the decisions of Congress and the experience of the Commission."

52Copy pinpoint52. On the other hand, the minority (O'connor, J. speaking for herself, Rehnquist, C.J., Scalia and Kennedy, JJ.) protested against the abandonment of what they thought was a well established standard of scrutiny in such cases in the following words:

"Strict scrutiny" requires that, to be upheld, racial classifica- c tions must be determined to be necessary and narrowly tailored to achieve a compelling state interest. The court abandons this traditional safeguard against discrimination for a lower standard of review, and in practice applies a standard like that applicable to routine legislation. This D Court's precedents in no way justify the Court's marked departure from our traditional treatment or race classifica- tions and its conclusion that different equal protection principles apply to these federal actions."

53Copy pinpoint53. We have examined the decisions of U.S. Supreme Court at some length only with a view to notice how another democracy is grappling with a problem similiar in certain respects to the problem facing this country. The minorities (including blacks) in United Stales are just about 16 to 18% of the total population, whereas the backward classes (including the Scheduled Castes and Scheduled Tribes) in thi; country - by whichever yardstick they are measured - do certainly constitute a majority of the population. The minorites there comprise 5 to 7 groups - Blacks, spanish- speaking people, Indians, Purto Ricano, Aleuts and so on - whereas the ,• castes and communities comprising backward classes in this country run into thousands. Untouchability - and 'unapproachability', as it was being practised in Kerala - is something which no other country in the world had the misfortune to have - nor the blessed caste system. There have been equally old civilisations on earth like ours, if not older, but none had evolved these pernicious practices, much less did they stamp them with scriptural sanction. Now coming to Constitutional provisions, Section 1 of the Fourteenth Amendment (insofar as it guarantees equal protection of the laws) correspo'!ds lo Article 14 but they do not have provisions

INDRA SAWHNEY v. U.0.1. 607

corresponding to Article 16(4) or 15(4). Title VI of the Civil Rights Act A enacted in 1964 roughly corresponds to Clause (2) of Articles 15 and 16.

54Copy pinpoint54. At this stage, we wish to clarify one particular aspect. Article 16(1) is a facet of Article 14. Just as Article 14 permits reasonable clas- sification, so does Article 16(1). A classification may involve reservation of seats or vacancies, as the case may be. In other words, under clause (1) of B Article 16, apointments and/or posts can be reserved in favour of a class. ' But an argument is now being advanced - evidently inspired by the opinion of Powell, J. in Bakke that Article 16(1) permits only preferences but not reservations. The reasoning in support of the said argument is the same as was put forward by Powell, J. This argument, in our opinion, disregards the fact that that is not the unanimous view of the court in Bakke. Four Judges including Brennan, J. took the view that such a reservation was not barred by the Fourteenth Amendment while the other four (including Warren Burger, C.J.) took the view that the Fourteenth Amendment and Title VI of the Civil Right Acts, 1964 bars all race-conscious progammes. At the sarne time, there are· a series of decisions relating to school desegregation - from Brown to Board of Education v. Swann (28 L.Ed. 2nd 586) - where the .court has been consistently taking the view that if race be the basis of discrin1inatiun, race can equally form the basis of remedial action. The shift in approach indicated by Metro Broadcasting Inc. is equally significant. The 'lingering effects' (of past discrimination) theory as well as the standard of strictest scrutiny of race-conscious programmes have both been abandoned. Suffice it to note t.hat no single uniform pattern of thought can be discerned from these decisions. Ideas appear to be still in the process of evolution.

PART - III (QUESTIONS 1 AND 2) F

We n1ay now proceed to deal with the questions aforementioned.

Question.J(a): Whether the 'provision' in Article 16(4) must necessarily be made by the Parliament/Legislature? G

55Copy pinpoint55. Sri K.K.Venugopal, learned counsel for the petitioner in Writ Petition No.930 of 1990 submits lhat the ''provision" contemplated by clause (4) of Article 16 can be made only by and should necessarily be made by the legislative wing of the State and not by the executive or any other authority. He disputes the correctness of the holding in Balaji negativing H

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

A an identical content.ion. He submits that siuce the provision made under Article 16(4) affects the fundamental rights of other citizens, such a provision can be made only by the Parliament/Legislature. He submits that if the power of making the 'provision is given to the executive, it well give 1 1 '