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

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

A India published by National Publishing House, New Delhi has quoted a passage from the issue of 'Hindu' dated 24.12.1932 as an example of visual pollution existing in Tinnevelli (Tamil Nadu) which the Manda! Commis- sion has extracted in Chapter IV vide para 4.13 of its report:

"4.13 .............. In this (Tinnevclly) district there is a class of B unseeables called purada vannans. They are not allowed to come out during day time because their sigbt is considered to be pollution. Some of these people who wash the clothes of other exterior castes working between midnigbt and day-break, were with difficulty persuaded to leave their c houses to interview."

Does not the very mention of the caste named 'purada vannans' indicate that the people belonging to that community were so backward, both socially, economically as well as educationally beyond comprehen- D sion? Would the children of those people who were not allowed to come out during day time have gone to any school? Does not the very fact that those people were treated with contempt and disgrace as if they were vermin in the human form freeze our blood? Alas! What a terrible and traumatic experience it was for them living in their hide-outs having oc- casional pot-luck under pangs of misery, all througb mourning over their E perilous predicament on account of this social ostracism. When people placed at the base level in the hierarchical caste system are living like mutes, licking their wounds - caused by the deadening weigbt of social customs and mourning their fate for having been born in lower castes - can it be said by any stretch of imagination that caste can never be the primary criterion in identifying the social, economic and educaional backwardness? F Are not the social arid economic activities of Shudras and Panchamas (untouchables) severely influenced by their low caste status?

There is no denying that many of the castes are identified even by their traditional occupation. This is so because numerous castes arrangged in a hierarchical order in the Hindu social structure are tied up with their respective particular traditional occupation consequent upon the creation of four Varnas on the concept of divine origin of caste system based on the Vedic principles. Can it be said that the propagation and practice on the caste - based discrimination; the marked dividing line between upper caste Hindus and Shudras, and the practice of untouchability in spite of

INDRA SAWHNEY v. U.O.l. [PAND!AN, J.] 735

the Constitutional declaration of abolition of untouchability under Article A 17 are completely eradicated and erased? Can it be said that the social backwardness has no relation to caste status? The unchallengeable answer for the first question would be in the negative and for the second question, the answer would be that social backwardness does have a relation with the caste status. B It is not germane for my purpose to enter into a lengthy deliberation as to how religion and mythology were used for founding the social institution in Hindu society containing so much of inequalities and dis- crimination among the people professing the same Hinduism.

The Manda! Commission in Chapter IV of its report under the c heading "Social Backwardness and Caste" has concluded its vie"( with a query under paragraph 4.33 of its Report (Volume I) thus:

"In view of the foregoing will it be too much to say that in the traditional Indian society social backwardness was a 1 direct consequence of caste status ....... '

Though the Government both on the Central and State level have taken and are taking positive steps through law and other reformative measures to eradicate this social evil, it is heart~ rendi~g to note that in many circumstances, the caste system is being perpetuated instead of being E banished for the reasons best known to those perpetrators.

It is common knowledge that in Hindu society, if a person merely mentions the name of a traditional occupation, another by his empirical knowledge can immediately identify the caste by the said traditional oc- F cupation. To illustrate, the traditional occupation of washing clothes is identified with washerman (Dhobi), caste, traditional occupation of hair- cutting is identified with Barber (Nai) - caste, traditional occupation of pottery is identified with Potter (Kumhar's caste), and so on, Of course in modern times, persons belonging to any particular caste might have shifted over to other occupation leaving their traditional occupation but generally G speaking, the occupation is identified with the caste and vice-versa. Many backward castes have taken 'agricultrure' as their profession. In such an unquestionable situation, in my opinion, there can be no justification in saying that caste in Hindu society cannot serve as a primary criterion even at the starting point in ascertaining its social, economic and educational H

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

A backwardness. To say that in the effort of ascertaining social backwardness, caste should be considered only at the end point, is a misnomer and fallacious. Because after identifying and classifying a group of persons belonging to a particular caste by testing with the application of the relevant criteria other than the caste criterian, the identification of the caste of that class of persons is no more required as in the case of B identification of casteless society as a backward class. In fact, this Court in a number of decisions has held that a caste may become a 'backward class' provided that caste satisfies the test of backwardness.

It is apposite, in this context, to make reference of the views ex- C pressed by the Mandal Commission stating that there is "a close linkage between caste ranking of a person and his social educational and economic status ........... In India, therefore, the low ritual caste status of a person has a direct bearing on his social backwardness''.

Chinnappa Reddy, J. In Vas ant K!lmar points out that the social investigator "............ may freely perceive those pursuing certain 'lowly' occupation as socially and educationally backward classes."

In passing, I would like to make reference to the pith and substance of the report of Kaka Kalelkar, according to which the relevant factors to cosider in classifying 'backward class' would be their traditional occupation or profession, the percentage of literary or the general educational advan- cement made by them; the estimated population of the conmmunity, and the distribution of the various communities throughout the State or their concentration in certain areas.

F What the Expression "Backward Class" means?

In Minor P. Rajendran (supra), Wanchoo, C.J. speaking for the Con- stitution Bench has stated that " a caste is also a 'class of citizens' and that reservation can be made in such a case provided if that caste as a whole is G socially and educationally backward within the meaning of Article 15(4)".

Reference may also be made to Triloki Nath (II) (supra) and Ba/aram.

The facts in Ba/aram (cited above) disclose that for the admission to the integrated M.B.B.S. Course in the government medical colleges in H Andhra Pradesh, the Government issued a G.O. making a reservation of

INDRA SAWHNEY i·. U.O.l. [PANDIAN, J.J 737

25% of seats in favour of 'backward classes' as recommended by the A Andhra Pradesh Backward Classes Commission besides other reservations inclusive of reservation for Scheduled Castes and Scheduled Tribes. The reservation for the 'backward classes' was challenged on the ground that the Government Order violated Article 15(1) read with Article 29 and that the reservation was not saved by Article 15(4). The High Court held that B the Commission had merely enumerated the various persons belonging to a particular caste as 'backward classes' which was contrary to the decision of this Court and violative of the constitutional provisions and consequently struck down the G.O. The Government preferred an appeal before this Court. Vaidialingam, J. speaking for the Bench has observed: c "In the determination of a class to be grouped as backward, a test solely based upon caste or community cannot be valid. But, in our opinion, though Directive Principles contained in Art. 46 cannot be enforced by Courts, Art. 15(4) will have to be given effect to in order to assist the weaker sections of the citizens, as the State has been charged with such a duty. No doubt, we are aware that any provision made under this clause must be within the well defined limits and should not be on the basis of caste alone. But it should not also be missed that a caste is also a class of citizens and that a caste as such may be socially and educationally backward. If after collecting the necessary data, it is found that the caste as a whole is socially and educationally backward, in our opinion, the reseNation made of such persons will have to be upheld notwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average. There is no gainsaying the fact that there are numerous castes in the country, which are socially and educationally backward and, therefore, a suitable provision will have to be made by the State as charged in Art. 15(4) to safeguard their inter- est.1' G

(emphasis supplied)

The decisions which we have referred to above support the view that a caste is also a class of citizens and that if that caste satisfies the requisite H

738 SUPREME COURT REPORTS [1992J SUPP. 2 S.C.R.

A Lcsts of backwardness. Lhen the classification of Lhat caste as a backward class is not opposed to Article 16(4) notwithstanding thal a few individuals of Lhat caste arc socially and educationally above the general average. I am in full agreement wiLh the above view.

The composition and terms of reference of the Second Bac.kward B Classes Commission show that the Commission was appointed to inves- tigate the conditions of socially and educationally backward classes within the territory of India but not the socially, economically and eduationally backward classes. The earlier O.M. issued on 13.8.90 reads that with a view to providing certain weightage to socially and educationally backward c classes in the services of the Union and their Public Undertakings, as recon1mended by the Commission, the orders are issued in the terms mentioned therein. The said O.M. also explains that "the SEBC would comprise in the first phase the castes and communities which are common to both the lists, in the report of the Commission and the State D Government' list". In addition it is said that list of such castes/communities is being issued seperately. The subsequent amended O.M. dated 25.9.91 states that in order to enable the 'poorer sections' of the SEBCs to receive the benefits of 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, the Government have decided to amend the earlier Memorandum. Thus this amended O.M. firstly speaks of the 'poorer sections' of the SEBCs and secondly about the economically backward sections of the people not covered by any of the existing schemes of reservation. However, both the O.M.s while referring to the SEBCs, do not include the 'econo1nic backwardness' of that class along with 'social and educational backwardness'. By the amended O.M., the Government while providing reservation for the backward sections of the people not covered by the existing schemes of reservation meant for SEBCs, classifies that section of the people as 'economically backward', that is to say that those backward sections of the people are to be identified only by their economic backwardness and not by the test of social and educational backwardness, evidently for the reason that they are all socially and educa- tionally well advanced.

Coming to Article 16(4) the words 'backward class' are used with a wider connotation and without any qualification or explanation. Therefore, H it must be construed in the wider perspective. Though the OMs speak of

INDRA SAWl-lNEY v_ U.OJ_ [PANDIAN, l[ 739

social and educational backwardness of a class, the pri1nary consideration in identifying a class and in ascertaining the inadequate representation of that class in the services under the State under Article 16( 4) is the social backwardness which results in educational backwardness, both of which culminate in economic backwardness. The degree of importance to be attached to social backwardness is much more than the importance to be given to the educational backwardness and the economic backwardness, because in identifying and classifying a section of people as a backward class within the meaning of Article 16(4) for the reservation of appoint- ments or posts, the 'social backwardness' plays a predominant role.

Ray, CJ. in Jayashree is of the view that "Social backwardness can contribute to educational backwardness and educational backwardness may perpetuate social backwardness. Both are often no more than the inevitable corollaries of the extremes of poverty and the deadening weigtht 11 of custom and tradition.

The very fact that the Commission itself has given a weightage of 12 D points to 'social backwardness' and 6 points to 'educational backwardness' and 4 points to 'economic backwardness' (vide paragraph 11.24 of Chapter XI) shows in very clear terms that 'social backwardness' is taken as a predominant factor in ascertaining the backwardness of a class under Article 16(4). E

In M.R. Ba/aji v. State of Mysore, [1963] Suppl. 1 SCR '139 at page 454 Gajendragadkar, J. observed tha: "economic backwardness might have contributed to social backwardness ....... " This observation tends to show that Gajendragadkar, J. was of the view that economic backwardness may contribute to soicial backwardness. With respect to the learned Judge, I F am unable to agree with his view.

Desai, J. in Vasanth Kun1ar has expressed a similar view thal if econoic criterion for compensatory discrimination or affirmative action is accepted, it would strike at the root cause of "social and educational G backwardness .......... " thereby holding that only criterion which can be devised is the 'economic backwardness' for identifying 'socially and educa- tionally backward classes' ignoring the predominance of social backward~ ness. I am unable to share this above view.

How far the Courts would be competent to identify the 'Backward H

740 SUPREME COURT REPORTS l1992J SUPP. 2 S.C.R.

A class' is explained by Chinnappa Reddy, J. in Vasa11th Kumar in the following words:

We are afraid Courts are not necessarily the most com~ 11

pelenl to identify backward classes or to lay down guidelines for their identification except in broad and very B gt:ncral way. Wt: an; t:4uippt:<l for; that we have no legal barometers to measure social backwardness. We are truly removed from the people, particularly those of the back- ward classes, by layer upon layer of gradation and degrada- tion." c Let us have a glance over the Report in identifying the 'backward classes' by testing the same on the touchstone of various established criteria.

D In Chapter XI of the Report (Volume I part I) under the caption 'Socio-Educational Field Survey and Criteria of Backwardness' it is categorically stated that after must comprehensive enquiries and survey in the socio-educational fields with the association and help of top social scientists and specialists in the country as well as experts from a number of disciplines, the Commisoion had prepared the "Indicators (Criteria) for E Social and Educational Backwardness" on the analysis of data and sub- mitted its report. The relevant paragraphs 11.23, 11.24 and 11.25 showing the criteria for identification of backwardness are as follows:

"Indicators (Criteria) for Social and Educational Backward- F ness

11.23 As a result of the above exercise, the Commission evolved eleven 'Indicators' or 'criteria' for determining social and educational backwardness. These 11 'Indicators' were grouped under three broad heads, i.e. Social, Educa- G tional and Economic. They are:-

A. Social

(i} Castes/Classes considered as socially backward by others.

INDRA SAWHNEY ''· U.O.l. [PANDIAN, J.] 741

(ii) Castes/Classes which mainly depend on manual labour for their livelihood.

(iii) Castes/Classes where at least 25% females and 10% males above the State average get married at an age below 17 years in rural areas and at least 10% females and 5% males <lo so in urban areas. B

(iv) Castes/Classes where participation of females in work is at least 25% above the State average.

B. Educational c (v) Castes/Classes where the number of children in the age group of 5-15 years

who never attended school is at least 25% above the State average. D (vi) Castes/Classes where the rate of student drop-out in the age group of 5-15 years is at least 25% above the State average.

(vii) Castes/Classes amongst whom the proportion of E matriculates is at least 25% below the State average.

C, Economic

(viii) Castes/Classes where the average value of family assets is at least 25% below the State average. F

(ix) Castes/Classes where the number of families living in -I Kuccha houses is at least 25% above the State average.

(x) Castes/Classes where the source of drinking water is beyond half a kilometer for more than 50% of the G households.

(xi) Castes/Classes where the number of households having taken consumption loan is at least 25% above the State average. H

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

A 11.24 As the above three groups are not of equal impor- tance for our purpose, separate weightage was given to 'Indicators' in each group. All the social 'Indicators' were given a weightage of3 points each, Educational 'Indicators' a weightage of 2 points each and Economic 'Indicators' a wightage of one point each. Economic, in addition to Social B and Educational Indicators, were considered important as they directly flowed from social and educational backward- ness. This also helped to highlight the fact that socially and educationally backward classes are economically backward also. c 11.25 It will be seen that from the values given to each Indicator, the total score adds upto 22. All these 11 In- dicators were applied to all the castes covered by the survey for a particular State. As a result of this application, all castes which had a score of 50 per cent (i.e. 11 points) or above were listed as socially and educationally backward and the rest were treated as 'advanced'. (It is a sheer coincidence that the number of indicators and minimum point score for backwardness, both happen to be eleven). Further, in case the number of households covered by the survey for any particular caste were below 20, it was left out of consideration, as the sample was considered too small for any dependable inference."

It is crystal clear that the Commission only on the basis of the galaxy of facts unearthed and rnassive statistics collected it, has made its recom- F mendations on a very scientific basis of course taki~g 'caste' as the primary criterion in identifying the backward class in Hindu society and the occupa- tion as the basis for identifying all those in whose societies, the caste system is not prevalent.

It is not necessary for a class to be designated as a backward class G that it should be situated similarly lo the Scheduled Castes and scheduled Tribes.

Vaidalaingam, J. in Balaram while examining a similar issue after making reference to the cases of Ba/aji, Chitra/ekha and P. Sagar stated, H "None of the above decisions lay donw that socially and educationally

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 743

backward class must be exactly similar in all respects to that of Scheduled A Castes and Scheduled Tribes."

Chinnappa Reddy, J. in Vasanth Kumar while dealing with the ob- servations made in Ba/aji "that the backw.,d classes for whose improve- ment special provision is contemplated by Article 15(4) are in the matter ot their backwardness comparable to Scheduled Castes and Scheduled B Tribes" observed thus:

"There is no point in attempting to detrmine the social backwardness of other classes by applying the test of near- ness to the conditions of existence of the Scheduled Castes. C Such a test would practically nullify the provision for reser- vation for socially and educationally Backward Classes other than Scheduled Castes and Tribes."

Criticism levelled against Manda/ Commission Report D The learned senior counsel, Mr. N. A. Palkhiwala, Mr. K.K. Venugopal, Smt. Shyamala Pappu and Mr. P.P. Rao assisted by a battery of layers appearing for the petitioners condemn the recommendations of the Commissions on the various grounds. Therefore, it has become un· avoidable to meet their challenges, it may not be necessary other\\oise to express any opinion on the correctness and adequacy of the exercise done by the Manda! Commission.

Taking pot-shots at the Manda! Report recommending exclusive reservation for SEBCs, the belligerent anti-reservationists denigrate the report by making scathing criticism and indiscrininately trigger off a volley of bullets against the Report. The first attack against the Report is that it is perpetuating the evils of caste system and accentuating caste conscious- ness besides impeding the doctrine of secularism, the net effect of which would be dangerous and disastrous for the rapid development of the Indian G society as a whole marching towards the goal of the welfare state. Accord- ing to them, the identification of SEBCs by the Commission on the basis of caste system is bizzare and barren of force) muchless exposing hollow- ness. Therefore, the OMs issued on the strength of the Manda! Report which is solely based on the caste criterion are violative of Article 16(2). H

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

A The above criticism, in my considered view, is very uncharitable and bereft of the factual position. Hence it has to be straightaway rejected as unmeritorious since that Report is not actually based solely on caste criteria but on the anvil of various factors grouped under three heads i.e. social, educational and economic backwardness but giving more impor- tance - rightly too - to the social backwardness as having a direct conse- B quence of caste status.

Adopting the policy of 'Running with the hare and hunting with the hounds', a conciliatory argument was advanced saying that although it is necessary to make provisions for providing equality of opportunity in matters of public employment 'in favour of any backward class' in terms of Article 16(4), the present Report based on 1931 census can never serve a correct basis for identifying the 'backward class', that therefore, a fresh Commission under Article 340( 1) of the Constitution is required to be appointed to make a fresh wide survey sumey through out the length and breadth of the country and submit a new list of OBCs (other backward classes) on the basis of the present day Census and that there are million ways of guaranteeing progress of backward classes and ensuring that it percolates down the social scale, but the Manda! commission is the one.

E Firstly, in my view if the above argument is accepted it will result in negation of the just claim of the SEBCs to avail the benefit of Article 16(4) which is a fundamental right.

Secondly, this attack is based on a misconception. A perusal of the Report would indicate that the 1931 census does not have been even a F remote connection with the identification of OBCs. But on the other hand, they are identified only on the basis on the country-wide socio-educational field survey and the census report of 1961 particularly for the identification of primitive tribes, aboriginal tribes, hill tribes, forest tribes and in- digenous tribes personal knowledge gained through extensive touring and receipt of voluminous public evidence and lists of OBCs notified by various States. It was only after the identification of OBCs, the Commission was faced with the task of determining their population percentage and at that stage 1931 census become relevant. It is to be further noted after 1931 census, no caste-wise statistics had been collected. In fact, the identification of classes by the Commission was based on the realities prevailing in 1980

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 745

and not in 1931. It is brought to our notice that the same method had already been adopted in Section 5 of the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.

Thirdly, the Commission cann\>t be said to have ignored this factual '• position and found fault with for relying on 1931 census. In fact, this position is made clear by the Commission itself in Chapter XII of its B Report, the relevant paragraphs of which read thus:

"12.19 Systematic caste-wise enumeration of population was introduced by the Registrar General of India in 1881 and discontinued in 1931. In view of this, figures of caste- wise population beyond 1931 are not available. But assum- c ing that the inter se rate of growth of population of various castes, communities, and religious groups over the last half a century has remained more or less the same, it is possible to work out the percentage that all these groups constitute of the total populatio~ of the country. D

12.10 Working on the above basis, the Commission culled out caste/community-wise population figures from the cen- sus records of 1931 and, then grouped them into broad caste-clusters and religious groups. These collectivities E were subsequently aggregated under five major heads i.e. (i) Scheduled Castes and Scheduled Tribes; (ii) Non- Hindu communities, Religious Groups, etc.; (iii) Forward Hindu Castes and Communities; (iv) Backward Hindu Caste and Communities; and (v) Backward Non-Hindu Communities . ..................................... n F

In Balaram, wherein a similar argument was addressed, this Court after going through the Re.port of the Backward Classes Commission of the State of Andhra Pradesh, felt the difficulty of the non-availability of the Caste-wise statistics after 1931 census and pointed out that in Andhra, the G figures of 1921 census were available and in Telangana area, 1931 census of caste-wise statistics was available.

In the background of the above discussion, the anti-reservationists cannot have any legitimate grievance and justifiabl) demand this Court to throw the Report over-board on the mere ground that 1931 census had H

746 SUPREME COURT REPORTS 1!992] SUPP. 2 S.C.R.

A been taken into consideration by the Commission. As pointed out by this Court in Ba/ara1n that no conclusions can always be scientifically accurate in such matters. If at all the atlack per-

. petrated on the Report renders any remedy to the anti-reservationists, it would be only for the purpose of putting the Report in cold storage as has B ' happened to the Report of the First Backward Classes Commission.

Therefore, for the aforementioned reasons, I hold that the above submission made against the Report with reference to the consideration of Census of 1931 cannot be conuntenanced.

c After having gone through the Commission's Report very assiduously and punctiliously, I am of the firm view that the Commission only after deeply considering the social, educational and economic backwardness of various classes of citizens of our country in the light of the various proposi- tions and tests laid down by this Cour• had submitted its Report enumerat- D ing various classes of persons who are to be treated as OBCs. The recommendations made in the present Report after a long lull since the submission of the Report by the First Backward Classes Commission are supportive of affirmative action programmes holding the members of the historically disadvantaged groups for centuries to catch up with the stand- E ards of competition set up by a well advanced society.

As a matter of fact, the Report wanted to reserve 52% of all the posts in the Central Government for OBCs commensurate with their ratio in the population. However, in deference to legal limitation it has recommended a reservation of 27% only even though the population of OBCs is almost F twice this figure.

Yet another argument on behalf of the anti-reservationsits was ad- dressed contending that if the recommendations of the Commission are implemented, it would result in the sub-standard replacing the standard G . and the reins of power passing from meritocracy to mediocrity; that the upshot will be in demoralization and discontent and that it would revitalize .caste.system, and cleave the nation into two - forward and backward - and open up new vistas for internecine conflict and fissiparous forces, and make backwardness a v~ted interest. H The above tortuous line of reasoning, in my view is not only illogical,

INDRA SAWHNEY v. U.0.1. [PANDIAN, .!.] 747

inconceivable, unreasonable and unjustified but also utterly overlooks the stark grim reality of the SEBCs suffering from social stigma and ostracim in the present day scenario of hierarchical caste system. The very object of Article 16(4) is to ensure equality of opportunity in matters of public employment and give adequate representation to those who have been • placed in a very discontent position from time immemorial on account of sociological reasons. To put it differently, the purpose of clause (4) is to ensure the benefits flowing from the fountain of this clause on the beneficiaries - namely the Backward Classes - who in the opinion of the Constitution makers, would have otherwise found it difficult to enter into public services, competing with advanced classes and who could not be kept in limbo until they are benefited by the positive action schemes and who have suffered and are still suffering from historic disabilities arising from past discrimination or disadvantage or both. However, unfortunately all of them had been kept at bay on account of various factors, operating against them inclusive of poverty. They continue to be deprived of enjoy- ment of equal opportunity in matters of public employment despite there being sufficient statistical evidence in proof of manifest imblance in Government jobs which evidence is sufficient to support an affirmative action plan. If candidates belonging to SEBCs (characterised as mediocre by anti-reservationists), are required to enter the open field competition, along with the candidates belonging to advanced communities without any preferential treatment in public Services in their favour and go through a E rigid test mechanism being the highly intelligence test and professional ability test as conditions of employment, certainly those conditions wonld operate as 11built-in headwinds11 for SEBCs. It is, therefore, in order to achieve equality of employment opportunity, clause 4 of Article 16 em- powers the State to provide permissible reservation to SEBCs in the matters of appointments or posts as a remedy so as to set right the manifest imbalance in the field of public employment.

The argument that the implementation of the recommendations of the Commission would result in demoralisation and discontent has no merit because conversely can it not be said that the non- implementation of the recommendalions would result in demoralisation and discontent among the SEBCs.

Though 'equal protection' clause prohibits the State from making unreasonable discrimination in providing prefere.nces and facilities for any H

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

A section of its people, nonetheless it requires the State to afford substantially equal opportunities to those, placed unequally.

The basic policy of reservation is to off-set the ino4uality and remove the manifest imbalance, the victims of which for bygone generations lag far behind and demand equality by special preferences and their strategies. B Therefore, a comprehensive methodological approach encompassing jurisprudential, comparative, historical and anthropological conditions is necessary. Such considerations raise controversial issues transcenting the routine legal exercise because certain social groups who are inherently unequal and who have fallen victims of societal discrimination require c compensatory treatment. Needless to emphasise that equality in fact or substantive equality involves the necessity of beneficial treatment in order to attain the result which establishes an equilibrium between two sections placed unequally.

It is more appropriate to recall that ''There is equality only among D equals and to equate unequals is to perpetuate inequality."

Therefore, the submission that the implementation of the recommen- dations of the Report will curtail concept of equality as enshrined under Article 14 of the Constitution and destroy the basic structure of the Constitution, cannot be countenanced. E One of the arguments criticising the Report is that the said Report virtually rewrites the Constitution and in effect buries 50 fathoms deep the ideal of equality and that if the recommendations are given effect to and implemented, the efficiency of administration will come to a grinding halt. F This submission is 'tantamount to saying that the reservation of 27% to SEBCs as per the impugned OMs is opposed to the concept of equality.

There is no question of rewriting the Constitution, because the Commission has acted only under the authority of the notification issued by the President. It has after laying down the parameters in the light of the various pronouncements of this Court has ultimately submitted its Report recommending the reservation in tune with the spirit of Article 16(4).

The question whether the candidates, belonging to the SEBCs should be given a preferential treatment in matters of public employment to such time as it is necessary, receives a fitting reply in Devadasan wherein Subba

INDRA SAWHNEY v. U.0.l. [PAND!AN. J.] 749

Rao, J. (as the learned Chief Justice then was) has observed, by citing an illustration as to how the manifest imbalance and inequality will occur otherwise, thus:

' To make my point clear, take the illustration of a horse 1

race. Two horses are set down to run a race - one is a first class race horse and the other an ordinary one. Both arc made to run from the same starting point. Though theoreti- cally they are given equal opportunity to run the race, in practice the ordinary horse is not given an equal oppor- tunity to compete with the race horse. Indeed that is denied to it. So a handicap may be given either in the nature of extra weight or a start from a longer distance. By doing so, c what would otherwise have been a farce of a competition would be made a real one. The same difficulty had con- fronted the makers of the Constitution at the time it was made. Centuries of calculated oppression and habitual submission reduced a considerable section of our com- D munity to a life of serfdom. It would be well nigh impossible to raise their standards if the doctrine of equal opportunity was strictly enforced in their case. They would not have any chance if they were made to enter the open field of com- petition without adventitious aids till such time when they could stand on their own legs. That is why the makers .of the constitution introduced Cl. (4) in Article 16."

It will be befitting, in my opinion, to extract a passage from the book, Bakke, Defunis and Minority Admissions (The Quest for Equal Opportunity) by Allan P. Sindler wherein at page 9, the unequal competition is explained by an analogy which is as follows:

A good way to appreciate the 11 something more 11 quandary 11

is to consider the metaphor of the shackled runner, an analogy frequently advanced by spokesmen for minorities: G 'Imagine two runners at the starting line, readying for the I 00-yeard dash. One has his legs shackled, the other not. The gun goes off and the race begins. Not surprisingly, the unfettered runner immedi- ately takes the lead and then rapidly increases the H

750 SUPREMF. COURT REPORTS l!992J SUPP. 2 S.C.R.

A distance between himself and his shackled competi- tion. Before the finish line is crossed, over the judging official blows his whistle, calls off the con- test on the grounds that the unequal conditions between the runners made it an unfair competition, and orders removal of the shackles.' B Surely few would deny that pitting a shackled runner against an unshackled one is inequitable and does not provide equality of opportunity. Hence, cancelling the race and freeing the disadvantaged runner of his shackles seem c altogether apporpriate. Once beyond thi> point, however, agreement fades rapidly. The key question becomes: what should be done so that the two runners can resume the contest on a basis of fair competition? Is it enough after removing the shackles, to place both runners back at the starting point? Or is "something more11 needed, and if so, what? Should the rules of the running be altered, and if so, ' how? Should the previously shackled runner be given a compensatory edge, or should the other runner be handi- capped in some way? How much edge or handicap?"

To one of the queries posed by the author of the above analogy, the proper reply would be that even if the shackles whether of iron chains or silken cord, .are removed and the shackled person has become unfettered, he must be given a compensatory adge until he realises that there is no more shackle on his legs because even after the removal of shackles he does not have sufficient courage to compete with the runner who has been all along unfettered.

Mr. Ram Awadesh Singh, an intervener demonstrably explained that as unwatered seeds do not germinate, unprotected backward class citizens will wither away.

G The above illustration and analogies would lead to a conclusion that there is an ocean of difference between a well advanced class and a backward class in a race of open competition in the matters of public employment and they, having been placed unequally, cannot be measured by the same yardstick. As repeatedly pointed out, it is only in order to make the unequals equal, this constitutional provision, namely, clause (4) of

INDRA SAWHNEY ''· U.0.1. [PANDIAN, J.] 751

Article 16 has been designed and purposely introduced providing some preferential treatment to the backward class. It is only in case of denial of such preferential treatment, the very concept of equality as enshrined in the Constitution, will get buried 50 fathoms deep.

A programme of reservation may sacrifice merit but does not in any way sacrifice competence because the beneficiaries under Article 16( 4) B have to possess the requisite basic qualifications and eligibility and have to compete among themselves though not with the mainstream candidates.

As Chinnappa Reddy, J. in Vasanth Kumar has rightly observed, Always one hears the word 'efficiency' as if it is sacrosanct and the 11

sanctorum has to be fiercely guarded. 'Efficiency' is not a mantra which is c whispered by the Guru in the Sishya's ear."

In yet another context, in the same decision, the learned Judge at page 394 has firmly aud irrefutably put the merit argument at rest stating thus: D "The real conflict is between the class of people, who have never been in or who have already moved out of the desert of poverty, illiteracy and backwardness and are entrenched in the oasis of convenient living and those who are still in the desert and want to reach the oasis, There is no enough E fruit in the garden and so those who are in, want to keep out those who are out. The disastrous consequences of the so-called meritarian principle to the vast majority of the under-nourished, poverty-stricken, barely literate and vul- nerable people of our country are too obvious to be stated. F And, what is merit? There is no merit in a system which brings about such consequences. n

Be that as it may, the intelligence, merit, ability, competence, meritocracy, administrative efficiency and achievement cannot be G measured by skin-pigmentation or by the surname of an individual indicat- ing his caste.

In this regard, the observation of Subba Rao, J. in Devadasan at page 706 may be recapitulated, which to some extent answers the doubt raised by a section of anti-reservationists that reservation will result in deteriora- H

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

A tion in the standard of service. The said observation reads as follows:

"If the provision deals with reservation - which I hold it does - I do not see how it will be bad because there will be some deterioration in the standard of service. It is in- evitable in the nature of reservation that there will be B lowering of standards to some extent; but on that account the provision cannot be said to be bad. Indeed, the State laid down the minimum qualifications and all the appoint- ments were made from those who had the said qualifica- tions. How far the efficiency of the administrations suffers c by this provision is not for me to say, but it is for the State, which is certainly interested in the maintenance of stand- ards of its administration."

Submission on the theory of past discrimination based on the decisions of D the Supreme Court of United States

Based on certain American decisions, it has been urged that only that group or ~ection of people suffering from the lingering effects of past discrimination can be classified as 'backward classes' and not others. This E submission has to be mentioned for being simply rejected for more than one reason. Even today, the caste discrimination is very much prevalent in India particularly in the rural areas. Secondly, even among the Judges of the Supreme Court of United States, there is a division of opinion on the theory of lingering effects of past discrimination. Thirdly, this theory cannot be imported to the Indian conditions where the Hindu society even today is suffering from the firm grip of discrimination based on caste system. The vastness and richness of the materials unearthed by the various Commis- sions inclusive of States' Commissions unambiguously and pellucidly reveal that in our country, representation of the SEBCs in the services under the State is grossly inadequate when compared to the representation of the advanced class of citizens, leave apart the complete absence of reservation for SEBCs in the Central Services. This inadequate representation is not confined to any specific section of the people, but all those who fall under the group of social backwardness whether they are Shudras of Hindu community or similarly stituated other backward classes of people in other communities, namely, Muslims, Sikhs, Christians etc.

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 753

Drawing strength on the opinion of Powell, J in Regents of the A University of California v. Allan Bakke, 57 L Ed 2d 750, an argument has been advanced that Article 16 (1) permits only preferences but not reser- vations. In the above Bakke's case, a white male who had been denied admission to the medical school at the University of California at Davis for two consecutive years, instituted an action for declaratory and injunctive relief against the Regents of the University in the Superior Court of Yolo B County, California alleging the invalidity under the equal protection clause of the Fourteenth Amendment, a provision of the California Constitution, and the prescription in racial discrimination in any programme receiving federal financia1 assistance of the medical school's special admissions programme. The Supreme Court announced its decision amid confusion c and controversy. There was no clear majority, but a three-way split namely four Judges took one view and four other Judges took a different view, leaving Justice Powel straddling the middle. In their joint opinion partially concurring and partially dissenting, Justices Brennan, White, Marshal and Blackmun took issue with Powell's conclusion that the Davis programme D 11 was unconstitutional and said, We cannot ... let color blindness become myopia which masks the reality that many 'created equal' have been treated within our lifetimes as inferior both by the law and by their fellow citizens."

Attention was also drawn to Defunis v. Charles Odeguard [1974] 40 L. Ed. 2nd 164. E The analytical study of American cases shows that the American- style justification of positive discrimination is on the ground of utility whereas the Indian-style justification is on the ground of constitutional rights. Therefore, the decision in relation to a racial discrimination relating to an admission to the medical school cannot be of much assistance in the F matter of identification of 'backward classes' falling under Article 16 (4). The dicta in Bakke and Defunis is one akin to the principle covered under Article 15 (4) and not under Article 16 (1). or 16 (4).

Whether Article 16 (4) is an exception to Articles 16 (1) and (2)? G Mr Parasaran, the learned senior counsel, appearing on behalf of the Union of India articulated that articles 16(4) and 335 are so worded as to give a wide latitude to the State in the matter of reservation and that Article 16(4) having no-obstante clause reading "Nothing in this Article shall prevent the State from making any provision ..... " has an over-riding effect H

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

A on Article 16(2).

In support of the above argument based on the non-obstante clause, much reliancio was placed on various decisions, namely, (1) Punjab Province v. Dau/at Singh & Others, 1942 F.C.R. 67 at 87 and 88; (2) Orient Paper and B Industries Ltd. v. State of Orissa, AIR 1991 SC 672 at 677 and 678; (3) In re. Hatschek's Patents 1909 Chancery Division Vol. II 68 at 82 and 85 and (4) Hari Vishnu Karnath v. Syed Ahmed Ishaque and others, [1955] 1 SCR 1104 at 1121.

Yet another argument placing reliance on Triloki Nath's case (I) C (supra) was advanced contending that Article 16(4) is an enabling provision conferring a discretionary power on the State to make a reserva- tion of appointments in favour of backward cla5' of citizens. Placing reliance on the view expressed by Wanchoo, J. (as the learned Chief Justice then was) in General Manager, Southern Railways v. Rangachari, [1962) 2 D SCR 586 it was further urged that Article 16( 4) which is in the nature of an exception or proviso to Article 16(1) cannot nullify equality of oppor- tunity guaranteed to all citizens by that article. !' In my view, that clause (4) of Article 16 is not an exception to Article 16 (1) and (2) but it is an enabling provision and permissive in character E overriding Article 16 (1) and (2); that it is a source of reservation for appointments or posts in the Services so far as the backward class of citizens is concerned and that under clause (1) of Article 16 reservation for appointments or posts can be made to other sections of the society such as physically handicapped etc. F There is complete unanimity of judicial opinion of this Court that under Article 16( 4) the State can make adequate provisions for reserva- tions of appointments of posts in favour of any backward class of citizens, • if in the opinion of the State such 'backward class' is not adequately represented in the State. In fact in B. Venkataramana v. State of Madras G AIR 1951 SC 229 a seven Judges Bench of this Court held that "reservation of posts in favour of any backward class of citizens cannot, therefore, be regarded as unconstitutional". Not a single decision of this Court has cast slightest shadow of doubt on the constitutional validity of reservation. fhcrcforc, in view of the above position of law. I am not inclined to embark H upon an elaborate disCll';.sion on this question any further.

INDRA SAWHNEY v. U.O.l. [PANDIAN, l.] 755

Whether Reservation under Article 16 (4) can be made by Executive A Order?

The next submission that the provision for reservation of appoint- ments or posts under Article 16 (4) can be made only by a legislation and not by an executive order is unsustainable. This contention as a matter of fact has already been answered in (I) Ba/aji (supra) and (2), Comptroller B & Auditor General v. Mohan Lal Mehrotra, [1992] 1 SCC 20.

In passing, it may be stated that this Court while reversing the judgment of the Punjab and Haryana High Court in favour of the appellant State of Punjab v. Hirata Lal and Ors. (1971] 3 SCR 267 upheld the reservation which was made not by a legislation but by an executive order. See also Mangat Singh v. Punjab State Police, AIR 1968 Punjab 306.

Agreeing with the reasonings of Ba/aji, I hold that the prO\ision or reservation in the "Services under the State" under Article 16 (4) can be made by an executive order.

Whether the power confe"ed under Art. 16 (4) is coupled with duty?

Mr. K. Parasaran put forth an argument that the enabling power conferred under Article 16 (4) is intended for the benefit of the 'backward classes of citizens' who in the opinion of the State are not adequately represented in the Services under the State and that the power is one coupled with a duty and, therefore, has to be exercised by the state for the benefit of those for whom it is intended. Reference was made to H. WR. Wade Administrative Law v. Edn. Pages 228 and 229. Halsbury's Laws of F England W Edn. Vol. V paras page 34 para 27 and page 35 para 29. He adds that the duty caused on the State is to be exercised in keeping with the directive principles laid down under Article 46 to promote with special ~are the educational and economic interests of the weaker sections of the people and, in particular, of the Scheduled Castes and the Scheduled Tribes and to protect them from social injustice and all other forms of G exploitation. In this connection, attention was drawn to a few decisions of this Court, namely, ( 1) Chief Controlling Revenue Authority v. Maharashtra Sugar Mills Ltd., [1950] SCR 536; (2) Official Liquidator v. Dharti Dhan 964; (3) Delhi Administration v. l.K. nangia (1980] 1 SCR 1016; and (4)" Jaganathan (supra). H

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

A Whether formation of opinion by State is subjective?

The expression "in the opinion of the State" would mean the formation of opinion by the State which is purely a subjective process. It cannot be c~allenged in a Court on the grounds of propriety, reasonableness and sufficiency though such an opinion is required to be formed on the subjec- B tive satisfaction of the Government whether the identified 'backward class of citizens' are adequately represented or not in the Services under 'the State. But for drawing such requisite satisfaction, the existence of cir- cumstances relevant to the formation of opinion is a sine quo non. If the opinion suffers from the vice of non-application of mind or formulation of C collateral grounds or beyond the scope of Statute, or irrelevant and ex- traneous material then that opinion is challengeable. See ( 1) Dr. N.B. Khare v. The State of Delhi, (1950] SCR 519; (2) Govindji v. Municipal Corpora- tion, Ahmedabad, (1957] Bom. 147; (3) Virendra v. The State of Punjab and Another [1958] SCR 308; (4) The Barium Chemicals Ltd. and Anr. v. The Company Ltd. Board and Others, (1966] Suppl. SCR 311 and (5) Rohtas D Industries v. S.D. Agarwal and Others (1%~] 1 SCC 325.

In the present case, nothing is shown that the opinion of the Govern- ment as regards the inadequacy of representation in the Services is vitiated on any of the grounds mentioned above. E Whether the policy of Government can be subjected to judicial review:

The action of the Government in making provision for the reserva- tion of appointments or posts in favour of any 'backward class of citizens' is a matter of policy of the Government. What is best for the 'backward class' F and in what manner the policy should be formulated and implemented bearing in mind the object to be achieved by such reservation is a matter for decision exclusively within the province of the Government and such matters do not ordinarily attract the power of judicial review or judicial interference except on the grounds which are well settled by acatena of decisions of this Court. Reference may be made to (1) Hindustan Zinc v. G A.P. State Electricity Board (1991] 3 SCC 299; (2) Sitaram Sugars v. Union of India and Others [1990] 3 SCC 233; (3) D.C.M. v. S. Paramjit Singh, [1990] 4 SCC 723; (4) Minerva Talkies v. State of Kamataka and Others, 1988 Suppl SCC 176; (5) State of Kamataka v. Ranganath Reddy, [1978] 1 SCR 641; (6) Kerala State Electricity Board v. S.N. Govind Prabhu, (1986] H 4 SCC; (7) Prag Ice Company v. Union of India and Others, (1978] 2 SCC

INDRA SAWHNEY v. U.0.l. [PANDIAN, J.] 757

459; (8) Sara.swati Industries Syndicate Ltd. v. Union of India, [1975] 1 SCR A 956; (9) Murti Match Works v. Assistance Collector, Central Excise and Others, [1974] 3 SCR 121; ( 10) 1. Govindraja Mudaliar v. State of Tamil Nadu and Others, [1973] 3 SCR 222: and ( 11) Narender Kumarv. Union of India and Others, (1969] 2 SCR 375.

To what eJ.tent can the reservation be niade? B

The next baffling question relates to the permissible extent of reser- vation in appointments.

It was for the first time that this Court in Balaji has indicated broadly that the reservation should be less than 50% and the question how much less than 50% would depend on the relevant prevailing circumstances in each case. Though in Balaji, the issue in dispute related only to the reservation prescribed for admissions in the medical college from the educationally and socially backward classes, scheduled casted and scheduled tribes as being violative of Article 15 (4), this Court after expressing its view that it should be less than 50% observed further that "the provisions of Article 15 (4) are similar to those of Article 16 (4) ........... . Therefore, what is true in regard to Article 15 (4) is equally true in regard to Article 16 (4) .............. reservation made under Article 16 (4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution." This decision has gone further holding that the reservation of 68% seats made in that case was offending Article 15 ( 4) of the Constitution. To say in other words, Balaji has fixed that the maximum limit of reservation all put together should not exceed 50% and if it exceeds, it is nothing but a fraud on the Constitution. Even at the threshold, I may emphatically state that I am unable to agree with the proposition fixing the reservation for SEBCs at 50% as the maximum limit.

Mr. Jethmalani strongly articulated that the observation in Ba/aji that reservation under Article 16 (4) should not be beyond 50% is only an obiter dicta since that question did not at all arise for consideration in that case. Therefore, according to him, this observation is not a law declared by the G Supreme Court within the meaning of Article 141 of the Constitution. He continued to state that unfortunately some of the subsequent decision have mistakenly held as if the question of permissible limit has been settled in Balaji while, in fact, the view expressed in it was an obiter dicta. According to him, the policy of reservation is in the nature of affirmative action, firstly H

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

A to eliminate the past inhuman discrimination and secondly to ameliorate the sufferings and reverse the genetic damage so that the people belonging lo 'back¥<ard class' can be uplifted. When it is the main objective of clause (4) of Article 16 any limitation on reservation would defeat the very purpose of this Article falling under Fundamental Rights and, therefore, reservation if the circumstances so warrant can go even uplo 100%. B This view of Mr. Jethmalani has been fully supported by Mr. Siva Subramaniam appearing on behalf of the State of Tamil Nadu who poin- tedly referred to the speech of the Chief Minister of Tamil Nadu made in the Chief Ministers' Conference held on 10th April 1992 and produced a C copy of the printed speech of the Chief Minister, issued by the Government of Tamil Nadu as an annexure to the written submission. It is seen from the said annexure that the Chief Minister has categorically emphasised the stand of the Government of Tamil Nadu stating that the total reservation for back.vard classes, scheduled castes and scheduled tribes is 69%; that it D is but fair and proper that socially and educationally backward classes {alone) as a whole should be given at least 50% reservation for employment opportunities in Central Government services and its undertakings as well as for admission in educational institutions run by the Central Government. It has also been pointed out that in consonance with this avowed policy, the Tamil Nadu Legislative Assembly passed unanimously a resolution on E 30.9.1991 urging the Government of India to adopt a policy of 50% reservation for the Backward Classes instead of 27% and to apply this reservation not only for employment opportunities in all Central Govern- ment departments and Public Sector Undertakings, but also for admission in all Educational Institutions run by the Central Government. F Mr. Rajiv Dhawan appearing in W.P. No. 1094/91 submits that the limits to the reservation in Article 16 (4) cannot be fixed on percentage but it must be with the ulterior objective of achieving adequate repre- sentation for 'backward classes'.

G I m: much force in the above submissions and hold that any reser- vation in ex~ess of 50% for 'backward classes' will not be violative of Articles 14 and/or 16 of the Constitution. But at the same time, I am of the view that such reservations made either under Article 16 (4) or under Article 16 {1) and (4) cannot be extended to the totality of 100%. In fact, my learned brother, P.B. Sawant, J in his separate judgment has also

INDRA SAWHNEY v. U.0.L [PANDIAN, J.] 759

expressed a similar view that "there is no legal infirmity in keeping the reservations under clause (4) alone or under clause (4) and clause (1) of Article 16 together exceeding 50 per cent" though for other reasons the learned Judge has concluded that ordinarily the reservations kept under Article 16 (1) and 16 (4) together should not exceed 50% of the appoint- ments in a cadre or service in any particular yt-ar, but for extraordinary reasons this percentage may be exceeded. My learned brother, B.P. Jeevan B Reddy, J in his separate judgment has expressed his view that in given circumstances, ~ome relaxation in the strict rule of reservation may become imperative and added that in doing so extreme caution is to be exercised and a special case made out. c As to what extent the proportion of reservation will be so excessive as to render it bad must depend upon adequacy of representation in a given case. Therefore, the decisions fixing the percentage of reservation only upto the maximum. of 50% are unsustainable. The percentage of reserva- tion at the maximum of 50% is neither based on scientific data nor on any established and agreed formula. In fact, Article 16 (4) itself does not limit D the power of the Government in making the reservation to any maximum pecentage; but it depends upon the quantum of adequate representation required in the Services. In this context, it would be appropriate to recall some of the decisions of this Conrt, not agreeing with Balaji as regards the fixation of percentage of reservation. E

The question of percentage of reservation was examined in Thomas wherein Fazal Al~ J not agreeing with Balaji has observed thus:

"..................... clause (4) of Art. 16 does not fix any limit on the power of the Government to make reservation. Since clause (4) is a part of Art. 16 of the Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Article 16 (1). As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathe- matical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid that.the percentage of reservation should not exceed 50%. As I read the H

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

A authorities, this is, however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward classes of citizens which con- stitute 80% of the population and the Government, in order to give them proper representation, reserves 80% of the jobs for them, can it be said that the percentage of reser- B vation is bad and violates the permissible limits of clause (4) of Article 16? The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make in adequate representation adequate.''

C Krishna Iyer, J in the same decision has agreed with the above view of Fazal Ali, J stating that "... the arithmetical limit of 50% in any one year set by some earlier rullings cannot perhaps be pressed too far."

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

Chinnappa Reddy, J in Karamchari case [1981] 2 SCR 185 (supra) has expressed his view on the ceiling of reservation as follows:

"...... There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty percent. There is no rigidity about the fifty percent rule which is only a convenient guideline laid down by Judges. Every case must be decided with reference to the present practical results yielded by the application of the particular rule of preferential treatment and not with ref- erence to hypothetical results which the application of the rule may yield in the future. Judged in the light of this di>cussion I am unable to find anything illegal or uncon- stitutional in any one of the impugned orders and cir- G culars ....... "

Again in Vasanth Kumar, Chinnappa Reddy, J reiterates his view taken in Karamchari in the following words:

H '1We must repeat here, what we have said earlier, that there

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 761

is no scientific statistical data or evidence of expert ad- A ministrators who have made any study of the problem to support the opinion that reservation in excess of 50 per cent may impair efficiency. 11

It should not be out of place to recall the observation of Hegde, J in Hira Lal observing," The extent of reservation to be made is primarily a matter for the State to decided. By this we do not mean to say, that the decision of the State is not open to judicial review......... The length of the leap to be provided depends upon the gap to be covered." (emphasis sup- • plied)

Desai, J in Vasanth Kumar expressed his view that in dealing with the question of reservation in favour of Scheduled Castes, Scheduled D Tribes as well as other SEBCs 'Judiciary retained its traditional blindfold on its eyes and thereby ignored perceived realities."

Whether the further arbitrary classification as 'poorer sections' from and out of the identified SEBCs is pennissib/e under Article 16 (4) after acceptance and approval of the list without reseNation and whether such classification suffers from non-application of mind?

The most important pivotal and crucial issue that I would now like to ponder over relates to the intent of para 2 (i) of the OM dated 25th September 1991 whereunder it is declared that 'Within the 27% of the vacancies in civil posts and services under the Government of India

- reserved for SEBCs, preference will be given to the candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such can- didates are not available, r:nfilled vacancies shall be filled by the other SEBC candidates". (emphasis supplied) G To say in other words, the Government intends to prescribe an income cPling for determination of 'poorer sectio11s' of the SEBCs who will be eligible to avail of the preference of reservation of appointments or posts in the Services under the State. It is an admitted fact that the Government so far has not laid down any guideline or test for identifying H

762 SUPREME COURT REPORTS (1992( SUPP. 2 S.C.R.

A and ascertaining the 'poorer sections' among the identified SEBCs.

The OM has specifically used the expression, 'poorer seL:tior:s' but not 'weaker sections' as contemplated under Article 46 of the Constitution. Though the expressions 'poorer sections' and 'weaker sections' may con- note in general 'the disadvantaged position of a section of the people' they B do not convey one and the same meaning and they are not synonymous. When the OM deliberately uses the expression 'pooer sections', it has become incumbent to examine what that expression means and whether there can be any sub-classification as 'poorer' and 'non-poorer' among the same category of potential backward class of citizens on the anvil of c economic criterion.

The word 'poor' lexically means "having little or no money, goods or • other means of support" {Webster's Encyclopedic Unabridged Dictionary) or "lacking financial or other means of subsistence" (Collins English Dic- D tionary).

The OM uses the expression 'poorer' in its comparative term for the word 'poor'. It is common knowledge that the superlative term for the word 'poor' is 'poorerst'. The very usage of the word 'poorer' is in comparison with the positive word 'poor'. Therefore, it, necessarily follows that the OM E firstly considers all the identified SEBCs in general as belonging to 'poor sections' from and out of which the 'poorer sections' are to be culled out by applying a test to be yet formulated by the Government evidently on economic criterion or by application of poverty test based on the ceiling of income. After the segregation of 'poorer sections' of the SEBCs, the left out would be the 'poor sections'. By the use of the word 'poorer', the Government is super-imposing a relative poverty test for identifying and determining a preferential class among the identified SEBCs. It is stated that the preference will be given first to the 'poorer sections' and only in case there are unfilled vacancies, those vacancies will be filled by the left out SEBCs, namely, those other than the poorer sections. In other words, it means that all the identified SEBCs do not belong to affluent sections but to poor and poorer sections, that the expression 'poorer sections' denotes only the economically weaker sections of SEBCs compared with the remaining same category of SEBCs and that those, other than the 'poorer sections' although socially and educationally backward are economically·better off compared with the 'poorer sections'. The view that

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.J 763

all the identified SEBCs are considered as 'poor' or 'poorer' is fortified by the fact that there is an inbuilt explanation in the amended OM itself to the effect that those who do not fall within the category of 'poorer sections' also will be entitled for the benefit of reservation but of course subject to the availability of unfilled vacancies.

An argument was advanced that for identifying 'poorer sections', the. B 'means test' signifying an imposition of outer income limit shuuld be applied and those who are above the cut off income limit should be excluded so that the better off sections of the SEBCs may be prevented from taking the benefit earmarked for the less fortunate brethren! and the only genuine and truly members of 'poorer sections' of SEBCs may avail the benefit of reservation. In support of this argument, an attempt has been made to draw strength on two decisions of this Court rendered inlayashree and Vasanth Kumar.

Chief Justice Ray in Jayashree seems to have been inclined to take the view that reservation of seats in educational institutions should not be allowed to be enjoyed by the rich people suffering from the same com- munal disabilities.

Chinnappa Reddy, J in Vasanth Kumar recognises this 'means test' saying that "an upper income ceiling would secure the benefit of reservation to such of those members of the class who really deserved it", with which view Venkataramiah, J (as the learned Chief Justice than was) has agreed.

Thus the above argument based on 'means test' though seems to be plausible at the first sight is, in my opinion, not well founded and must be rejected on the ground that the identified category of SEBCs, having F

- common characteristics or attributes - namely the potential sc>cial back- wardness cannot be bisected or further classified by applying the economic or poverty test.

A doubt has been created as to whether the word 'poorer' connotes G economic status or social status or is to be understood in any other wuy.

The word 'poorer' when examined in the context in which it is deployed both syntact<cally and etymologically, in my view, may not convey any other meaning except relative poverty or comparative economic status. If any other meaning is imported which the government evidently appears H

764 SUPREME COURT REPORTS (1992] SUPP. 2 S.C.K.

A to have not contemplated, virtually one will be rewriting the second OM. An order of a Constitution Bench dated 1st October 1991 dearly spells out that that Bench was of the view that 'poorer sections' are to be identified by the economic criterion. The relevant portion of the above Order reads as follows: B "The matters are adjounred to 31st October 1991 when learned Additional Solicitor General will tell us how and when Government would be able to give the list of the economic criteria referred to in the notification of 25th September 1992." c (emphasis supplied)

The same view is reflected in a subsequent Order dated 4th Decem- ber 1991 made by this nine-Judges Bench, the relevant part of which reads thus:

"Learned Additional Solicitor General states that the Government definitely expects to be able to fix the economic criteria by January 28, 1992.................... As far as the question of stay granted by us earlier is concerned, we see no reason to pass any order at this stage as the petitions are posted for hearing on January 28, 1992 and in view of the economic criterion not being yet determined and other relevant circumstances, no question of immediate 1m~ plementation of the notification arises."

F (emphasis supplied)

G The above Orders of this Court support my view that the Govern- ment has to identify the 'poorer sections' only by the economic criteria or by the application of poverty test otherwise called 'means test'. It appears that this Court has all along been given to understand that 'poorer sections' - will be tested by the Government on economic criterion.

The above view is further fortified by the very fact that the second OM providing 10% of the reservation 'for economically backward sections of the people not covered by any other scheme of the reservation' indicates H that the Government has taken only the economic criteria in making the

INDRA SAWHNEY v. U.0.l. [PANDIAN, J.] 765

classification of the various sections of the people (emphasis supplied). A Therefore, I proceed on the basis that the second OM identifies the 'poorer sections' only on the basis of economic status.

When the 'means test' is analysed in depth so as to explore its merits and demerits, one would come to an inevitable conclusion that it is not a decisive test but on the other hand it will serve as a protective umbrella B for many to get into this segregated section by adopting all kinds of illegal and unethical methods. Further, this test will be totally unworkable and impracticable in the determination of "getting somebody in and getting somebody out" from among the same identified SEBCs. If this 'means test' argument is accepted and put into action by scanning the identified SEBCs c by applying a super-imposition test, the very object and purpose of reser- vation, intended for the socially backward class would reach only a cu/de sac and the identified SEBCs would be left in a maze. In my considered opinion, it will l:e a futile exercise for the courts to find out the reasons in support of the division between and among the group of SEBCs and make rule therefor, for multiple reasons, a few of which which I am emuinerating hereunder.

(1) The division among the identified and ascertained SEBCs having common characteristics and attributes - the primary of which being the potential social backwardness, as 'poorer sections' and 'non-poorer sections' on the anvil of economic criterion or by application of a super- imposition test of relative poverty is impermissible as being opposed to the scope and intent of Article 16(4).

(2) If this apex Court puts its seal of approval to para 2 (i) of the second F OM whereunder a section of the people under the label of 'poorer sections' is carved out from among the SEBCs, it becomes a law declared by this Court for the entire nation under Article 141 of the Constitution and is binding on all the Courts within the territory of India and that the decision of this Court on a constitutional question cannot be over-ridden except by the constitutionally recognised norms. When such is the legal position, the G law so declared should be capable of being effectively implemented in its applicability to some rare or freakish cases. The law should not be susceptible of being abused or misused and leave scope for manipulation which can remain undetected. If the law so declared by this Court is indecisive and leaves perceivable loopholes, by the aid of which one can defeat or circum- H

7fi6 SUPREME COURT REPORTS [1992) SUPP. 2 S.C.R.

A vent or nullify that law by adopting an insidious, tricky, fraudulent and strategic device to suit one's purpose then that law will become otiose and remain as a dead letter.

I would like to indicate the various reasons in support of my opinion that this process of elimination or exclusion of a section of people from and out of the same category of SEBCs cannot be sustained leave apart the authority of the Government to take any decision and formulate its policy in its discretion or opinion provided that the policy is not violative of any constitutional or legal provisions or that discretion or opinion is not vitiated by non-application of mind, arbitrariness, formulation of collateral grounds or consideraion of irrelevant and extraneous material etc.

(a) If the annual gross income of a government servant derived from all his sources during a financial year is taken as a test for identifying to 'poorer sections', that test could be defeated by reducing the income below the ceciling limit by a Government servant voluntarily going on leave on los. of pay for few months during that financial year so that he could bring his annual income within the ceiling limit and claim the benefit of reservation meant for 'poorer sections'. Similarly, a person owning extensive land also may lay a portion of his land fallow in any particular year or dispose of a portion of his land so as to bring his agricultural income below the ceiling limit so that he may fall within the category of 'poorer sections'.

(b) The fluctuating fortunes or misfortunes also will play an important role in determining whether one gets within the area of 'poorer sections' or gets out of it.

(c) Take a case wherein there are two brothers belonging to the same family uf 'backward class' of whom one is employed in Government service and another is privately employed or has chosen some other profession. The annual income of the Government employee if slightly exceeds the ceiling limit, his children will not fall within the category of 'poorer sections' whereas the other bro.ther can deceitfully show his income within the ceiling limit so that his children can enjoy that benefit.

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 767

( d) Among the pensioners also, the above anomaly will prevail as pointed out in Janaki Prasad.

( e) Any member of SEBCs who is in Government job and is on the verge of his superannuation and whose income exceeds the ceiling limit, will go out of the purview of 'poorer sections' but in the next financial year, he may gel into the 'poorer sections' if his total pensionary benefits fall within the ceiling limit.

(I) A person who is within the definition of 'poorer sections' may suddenly go out of its purview by any intervening fortuitous circumstances such as getting a marital alliance c in a rich family or by obtaining any wind-fall wealth.

(g) If poverty test is made applicable for identifying the 'poorer sections' then in a given case wherein a person is socially oppressed and educationally backward but economically slightly advanced in a particular year, he will be deprived of getting the preferential treatment.

The above are only by way of illustrations, though this type can be multiplied, for the purpose of showing that a person can voluntarily reduce his income and thereby circumvent the declared law of this Court. In all the above illustrations, enumerated as (a) to (g), the chance of "getting into or getting out of' the definition of 'poorer sections' will be like a see-saw depending upon the fluctuating fortunes or misfortunes.

(3) The income-test for ascertaining poverty may severally suffer from the vice of corruption and also encourage patronage and nepotism.

( 4) When the Government has accepted and approved the lists of SEBCs, identified by the test of social backwardness, educational back- wardness and economic backwardness which lists are annexed to the Report, there is no justification by dividing the SEBCs into two groups, thereby allowing one section to fully enjoy the benefits and another on a condition only if there are unfilled vacancies.

(5) The elimination of a section of SEBCs by putting an arbitrary and unnecessary unjustified. This process of elimination or exclusion of a H

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

A section of SEBCs will be tentamount to pushing those persons into the arena of open competition along with the forward class if there are no unfilled vacancies out of the total 27% meant for SEBCs. This will cause an irretrievable injustice to all the non-poorer sections though they are also theoretically declared as SEBCs.

B (6) The second OM providing a scanning test is neither feasible nor practicable. It will be perceptible and effectual only if the entire identified backward class enjoys the benefit of reservation.

(7) The proposed 'means test' is highly impressionistic test, the result C of which is likely to be influenced by many uncertain and imponderable facts.

(8) It may theoretically sound well but in practice attempts may be made in a underhanded way to get round the problem.

D What I have indicated above is only the tip of the iceberg and more of it is likely to surface at the time when any scanning process and super-imposition test are put into practice.

In this connection, I would .like to mention the views of the Tamil Nadu Government as expressed by the Chief Minister of Tamil Nadu in the Chief Ministers' Conference held in New Delhi (already referred to) stating that the application of income limit on reservation will exclude those people whose income is above the 'cut-off limit and literally, it means that they will come under the open competition quota and if caste is not the sole criterion, income limit cannot also be the decisive and determining factor for social backwardness and that the exclusion of certain people from the benefits of reservation by the application of economic criterion will not bring the desired effect for the advancement and improvement of the backward classes who have suffered deprivation from the time im- memorial.

G Reference also may, be made to Balaji wherein it has been ruled that backward classes cannot be further classified into backward and more backward and that such a sub-classification "does not appear to be justified under Article 15(4)". This view, in my opinion, can be equally applied even for sub-classification under Article 16(4).

H Arguing with the above view of Balaji, I hold that the further sub-

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 769

classification as 'poorer sections' out of the ascertained SEBCs after ac- A cepting that group in which the common thread of social backwardness runs through as an identifiable unit within the meaning of the expression 'backward class', is violative of Article 16(4).

Of course, in Vasanth Kumar, Chinnappa Reddy, J. in his separate judgment has taken a slightly contrary view, holding that there can be classification for providing some reservation to the more backward classes compared to little more advanced backward classes. This view is expressed only by the learned Judge (Chinnappa Reddy, J.) on which view other Judges of that Bench have not expressed any opinion. However, it appears that the learned Judge has not said that the entire reservation should go only to the more backward classes but only some percentage of reservation should be provided and earmarked exclusively for the more backward classes.

In the present case, the entire reservation of 27 per cent is given firstly to be enjoyed by the 'poorer sections' and only the unfilled vacancies, if any, can be availed of by others. As I have already held, the view expressed by the Constitution Bench in Balaji is more acceptable to me.

It may not be out of place to mention here that in Tamil Nadu, based on one of the recommendations of the First Backward Classes Commission E constituted in 1969 - known as 'Sattanatham Commission' - the Govern- ment issued orders in G.D. Ms. No. 1156, Social Welfare Department, dated 2nd July 1979, superimposing the income ceiling of Rs.9,000 per annum as additional criterion for the backward classes to be eligible for reservation for admission in educatinal institutions and recruitment to p public services. This order was challenged before the High Court but the High Court by 2:1 upheld the G.D. However, the order provoked a considerable volume of public criticism. After an All-party meet, the Government in G.O. Ms. No. 72, Social Welfare Department dated 1st February 1980 revoked their orders and the position as it stood prior to 2nd July 1979 was restored. Simultaneously, by another G.D. Ms. No. 73, G Social Welfare Department dated 1st February 1980, the Government raised the percentage of reservation for backward classes from 31 per cent to 50 per cent commensurate with the population of the backward classes in the State. Both the GOs i.e. G.D. Ms. No. 72 and 73 dated 1st February 1980 were challenged in the Supreme Court in Writ Petition Nos. 4995- H

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

A 4997 of 1980 along with W.P. No. 402 of 1981.

The Constitution Bench of this Court by its order dated 14th October 1980 directed the State Government to appoint another Commission to review the then existing enumeration and classification of backward classes and to take necessary steps for identifying the backward classes in the light of the report of the said Commission and that both the GOs "shall lapse after January 1, 1985". However, by order dated 5.5.1981, the above writ petitions were directed to be listed alongwith W.P. Nos. 1297-98/79 and 1497/79 (Vasanth Kumar). Thereafter, a number of CMPs in the writ petitions for extension of time for implementation of this Court's directions were filed. This Court periodically extended the time upto July 1985. A CMP for further extension of time was dismissed nn 23.7.1985 by a three- ,. Judges Bench of this Court since the Judgment in Vasanth Kumar involving the same question was delivered on 8.5.1985. Vide (1) Orders of Superme Court in W.P. Nos. 4995-97/1980 and W.P. No. 402/1981, (2) Orders of D High Court of Madras in W.P. Nos. 3069, 3292 and 3436/79 dated 20th August 1979 and (3) Paragraph 1.01 of Chapter I of the Report of the Tamil Nadu Second Backward Classes Commission (popularly known as Ambasankar Commission).

We have referred to the above facts for the purpose of showing that the fixation of ceiling limit on economic criterion was not successful and that for identifying the 'weaker sections', ceiling limit is not the proper test, once the backward class is identified and ascertained.

Further, it is clear for the afore-mentioned reasons that the Executive while making the division of sub-classification has not properly applied its mind to various factors, indicated above which may ultimately defeat the very purpose of the division or sub-classification. In that view, para 2(i) not only becomes constitutionally invalid but also suffers from the vice of non- application of mind and arbitrariness.

For the aforementioned reasons, I am of the firm view that the division made in the amended. OM dividing a section of the people as 'poorer sections' and leaving the remaining as 'non-poorer sections' on economic criterion from and among the same unit of identified and ascertained SEBCs, having common characteristics the primary of which is the social backward- ness as listed in the report of the Commission, is not permissible and valid and such a division or sub-classification is liable to be struck down as being

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 771

violative of clause (4) of Article 16 of the Constitution. A A further submission has been made stating that the benefits of reservation are often snatched away or eaten up by top creamy layer of socially advanced backward class who consequent upon their social development no longer suffer from the vice of social backwardness and who arc in no way handicapped and who by their high professional qualifications occupy upper echelons in the public services and therefore, the children of those socially advanced section of the people, termed as 'creamy layer' should be completely removed from the lists of 'Backward Classes' and they should not be allowed to compete with the children of socially under-privileged people and avail the quota of reservation. By way of illustration it is said that if a member of a designated backward class holds a high post by getting through the qualifying examinations of !AS, IFS, JPS or any other All India Service, there can be no justification in extending the benefit of reservation to their children, because the social status is will advanced and they no longer suffer from the grip of poverty. D On the same analogy, it has been urged that the children of other professlonals such as Doctors, Engineers, Lawyers etc. etc. also should not be given the benefit of reservation, since in such cases, they are not socially handicapped.

No doubt the above argument on the face of it appears to be E attractive and reasonable. But the question is whether those individuals belonging to any particular caste, community or group which satisfies the test of backward class should be segregated, picked up and thrown over night out of the arena of backward class. One should not lose sight of the fact that the reservation of appointments or posts in favour of 'any back- F ward class of citizens' in the Central Government services have not yet been put in practice in spite of the impugned 0 Ms. It is after 42 years since the advent of our Constitution, the Government is taking the first step to implement this scheme of reservation for OBCs under Article 16(4). In fact, some of the States have not even introduced policy of reservation in G the matters of public employment in favour of OBCs.

In opposition, it is said that only a very minimal percentage of BCs have stepped into All India Civil Services or any other public services by competing in the mainstream along with the candidates of advanced classes despite the fact that their legs are fettered by social backwardness and H

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

A hence it would be very uncharitable to suddently deprive their children of the benefit of reservation under Article 16(4) merely on the ground that their parents have entered into Government services especially when those children are otherwise entitled to tHe preferential treatment by falling within the definition of 'backward class'. It is· further stressed that those children so long as they are wearing the diaper of social backwardness should be given sufficient time till the Government realises on reviews that they are completely free from the shackles of social backwardness and have equated themselves to keep pace with the advanced classes. There are a few decisions of this Court which I have already referred to, holding the view that even if a few individuals in a particular caste, community or group are socially and educationaly above the gereral average, neither that caste nor that community or group can be held as not being socially backw;,rd. (Vide Balaram ).

In the counter affidavit dated 30th October 1990 filed by the Union of India sworn by the Additional Secretary to the Government of India in the Ministry of Welfare, the following averments with statistical figures are given:

"Based on the replies furnished by 30 Central Ministries and Departments and 31 attached and subordinate offices and public sector undertakings under the administrative control of 14 Ministries (which may be treated as sufficient- ly representative of the total picture) the Commission arrived at the following figures:-

Category of Total number Percentage Percentage F Employees of employees of SC/ST ofOBCs All classes 15,71,638 18.72 12.55

(Extracted from page 92 of First Part of Manda! Commis- sion Report)" G The above figures clearly show that the SEBCs are inadequately repre- sented in the Services of the Government oflndia and that the SCs and STs in spite of reservation have not yet been able to secure representation commen- surate with the percentage of reservation provided to them.

H Meeting an almost similar argument that the 'creamy layers' are

INDRA SAWHNEY v. U.0.1. (PANDIAN, J.] 773

santching away the benefits of reservation, Chinnappa Reddy, J. observed in Vasanth Kumar to the following effect:

'0ne must, however, enter a caveat to the criticism that the 1

benefits of reservation are often santched away by the top creamy layer of backward class or caste. That a few of the seats and posts reserved for backward classes are snatched away by the more fortunes among them is not to say that reservation is not necessary. This is bound to happen in a competitive society such as ours. Are not the unreserved seats and posts snatched away, in the same way, by the top creamy layers amongst them on the same principle of merit c on which the non reserved seats are taken away by the top layers of society. How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is not bad?" D The above observation, in my view, is an apt reply to such a criticism with which I am in full agreement. To quote Krishna Iyer, J. "For every cause there is a martyr 11 • I am also reminded of an adage, "One swallow does not make the summer." E Reverting to the case on hand, the 0.M. does not speak of any 'creamy layer test'. It cannot be said by any stretch of imagination that the Government was not aware of some few individuals having b come both 0

socially and educationally above the general average and entered in the All India Services or any other Civil Services. Despite the above fact, the F Government has accepted the listed groups of SEBCs as annexed to the Report and it has not thought it prudent to eliminate those individuals. Therefore, in such circumstances, I have my own doubt whether the judicial supremacy can work in the broad area of social policy or in the great vortex of ideological and philosophical decisions directing the exclusion of any section of the people from the accepted list of OBCs on the mere ground G that they are all 'creamy layers' which expression is to be tested with reference to various factors or make suggestions for exclusion of any section of the people who are otherwise entitled for the benefit of reser- vation in the decision of the Government so long that decision does not suffer from any constitutional infirmity. H

774 SUPREME COURT REPORTS IJ992] SUPP. 2 S.C.R.

A Added to the above submission, it has been urged that some pseudo communities have smuggled into the backward classes and they should be removed from the list of OBCs, lest those communities would be eating away the major portion of the reservation which is meant only for the true and genuine backward classes. There cannot be any dispute that such pseudo communities should be weeded out from the list of backward B classes but that exercise must be done only by the Government on proper verificr.tion.

The identification of the backward classes by the Manda! Commis- sion is not with a seal of perpetual finality but on the other hand it is c subjected to reviewability by the Government. The Manda! Commission itself in paragraph 13.40 in Chapter XIII has suggested that "the entire scheme should be reviewed after 20 years." Mr. Jethmalani suggested that the list may be reviewed. at the interval of 10 years. There are judicial pronouncements to the effect that Government has got the right of reviewability. There cannot be any controversy indeed there is none - that D the Government which is certainly interested in the maintenance of stand- ards of its administration, possesses and retains its soverign authority to adopt general regulatory measures within the consitutional framework by reviewing any of its schemes or policies. The interval of the period at which the review is to be held is within the authority and discretion of the E Government, but of course subject to the constitutional parametres and well settled principles of judicial review. Therefore, it is for the Govern- ment to review the lists at any point of time and take a decision for the exclusion of any pseudo community or caste smuggled into the backward class or for inclusion of any other community which in the opinion of the Government suffers from social backwardness. F It may be recalled that the petitioner herself in W.P. No. 930 of 1990 11 has stJ.ted, ......... the Courts cannot sit as a super legislature to determine and decide the social issue as to who are socially and educationally back- \vard .. ................... 1' G It will be appropriate to refer to an observation of the five-Judges Bench of this Court (which heard initially these matters) in its order dated 8th August 1991 stating:

'The validity of the Manda! Commission Report as such is H not in issue before us .................. "

INDRA SAWHNEY v. U.0.1. [PANDIAN. J.] 775

A three-Judges Bench of this Court comprising of Ranganath Mish- A ra, K.N. Singh, M.H. Kania, JJ. (as the learned Chief Justices then were) has observed in their order dated 21st September 1990 that the implemen- tation of executive decisions is in the hands of the Government of the day but constitutional validity of such action is a matter for Court's examina- tion. B Thereafter, a Constitution Bench of this Court ·by their order dated 1st October 1990 explained the earlier order stating "Three out of us sitting as a Bench on the 21st September 1990 made an order after hearing parties wherein we had indicated that the decision to implement three aspects of the recommendations of the Manda! Commission was a political one and C 11 ordinarily the Court would not interfere with such a decision.

Therefore, when this Court is not called upon to lay a test or give any guideline as to who arc all to be eliminated from the listed groups of the Report, there in no necessity to lay any test muchless 'creamy layer test'. I find no grey area to be clarified and consequently hold that what one is not free to do directly cannot do it indirectly by adopting any means. Therefore, the argument of 'creamy layer' pales into insignificance.

Further I hold that all SEBCs brought in the lists of the Commission \vhich have been accepted and approved by the Government should be given equal opportunity in availing the bi;;:nefits of the 27 per cent reserva- tion. In other words, the entire 27% of the vacancies in civil posts. and services under the Government of India shall be reserved and extended to all the SEBCs. F In fact, the first OM dated 13th August 1990 docs not make any division or sub-classification as in the amended OM. Para 2 (i) of the first OM reads, "27o/o of the vacancies in civil posts and services in the Govern- ment of India shall be reserved for SEBCs." In reading para 2 (i) of the first OM in juxtaposition with para 2 (i) of the amended OM, no basic difference in the policies of the two Government is spelt out; in that both G the i111pugned OMs have made 27o/'o reservation in civil posts and services under the Government of India for SEBCs" on the basis of the recommen- dations of the Second Backward Classes Commission (Manda! Report). The only difference between the t\VO impugned OMs is that in the amended OM a division among the SEBCs is made as 'poorer sections' and others H

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

A that the 'poorer sections' is firstly allowed. to avail the benefit of reservation of only the unfilled vacancies. Therefore,.by striking down para 2 (i) of the arnenrled OM as unconstitutional, I hold that there is no legal impediment in implementing para 2 (i) of the first OM dated 13th August 1990 which · has not been supersed, rescinded or repealed hut "deemed to have been amended." B Before parting with this aspect of the matter, I would like to express my view that the 'poorer sections' of the SEBCs may be provided with various kinds of concessions and facilities such as educational concessions, special coaching facilities, financial assistance, relaxation of upper age limit, increase of number of attempts etc. for government services with a view to give them equal opportunity to compete and keep pace with the advanced sections of the people.

Whether 10% reservation in favour of 'other economically backward section' is permissible under Alticle 16?

Now I shall pass on to paragraph 2 (ii) of the amended OM which reveals that 10 per cent of the vacancies in civil posts and services under the Government of India shall be reserved for other economically back- ward sections of the people who are not covered by any of the existing schemes of reservation.

This reservation of 10 per cent cannot be held to be constitutionally valid as concluded by my learned brother B.P. Jeewan Reddy, J. for the reasons, mentioned in paragraph 115 of his judgment. I am in full agree- ment with his conclusion on this issue of 10% reservation. F Whether Art. 16(4) contemplates reservation in the matter of promo- tion?