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

Jn Mohan Kumar Singhania v. Union of India, [1992] Supp. 1 SCC G 594, a three-Judges Bench of this Court to which I was a party has taken a view that once candidates even from reserved communities are allocated and appointed to a Service based on their ranks and performance and brought under the one and same stream of category, then they too have to be treated on par with all other selected candidates and there cannot be any question of preferential treatment at that.stage on the ground that they

INDRA SAWHNEY v. U.O.l. [PANDIAN, J.] 777

belong to reserved community though they may be entitled for all other statutory benefits such as the relaxation of age, the reservation etc. Reserw vation referred to in that context is referable to the reservation at the initial stage or the entry point as could be gathered from that judgment.

It may be recalled, in this connection, the view expressed by Chief Justice Ray in Thomas that "efficiency has been kept in view and not B 11 sacrificed •

Hence, I share the view of my learned brother B.P. Jeevan Reddy, J. holding that "Article 16(4) does not permit provision for reservation in the matter of promotions and that this rule shall, however, have only prospective C operation and shall. not affect the promotions already made, whether made on regular basis or on any other basis" and the direction given by him that wherever reservations are provided in the matter of promotion such reserva- tion may continue in operation for a period of five years from this day.

In Summation D (1) Article 16(4) ofthe Constitution is neither an exception nor a proviso to Article 16(1). It is exhaustive of all the reservations that can be made in favour of backward class of citizens. It has an over-riding effect on Article 16(1) and E (2).

(2) No Reservation can be made under Article 16(4) for

- classes other than backward classes. But under Article 16(1), reservation can be made for classes, not covered by Article 16(4).

(3) The expression, 'backward class of citizens' occurring F

in Article 16(4) is neither defined nor explained in the Constitution. However, the backward class or classes can certainly be identified in Hindu society with reference to castes along with other criteria such as traditional occupa- G tion, poverty, place of residence, lack of education etc. and in communities where caste is not recognised by the above recognised and accepted criteria except caste criterion.

(4) In the process of identification of backward class of H

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A citizens and under Article 16(4) among Hindus, caste is a primary criterion· or a dominant factor though it is not the sole criterion.

(5) Any provision under Article 16(4) is not necessarily to be made by the Parliament or Legislature. Such a provision B could also be made by an Executive order.

(6) The power conferred on the State under Article 16(4) . is one coupled with a duty and, therefore, the State has to exercise that power for the benefit of all those, namely, backward class for whom it is intended. c (7) The provision for reservation of appointments or posts in favour of any backward class of citizens is a matter of policy of the Government, of course subject to the constitu- tional parametres and well settled principle of judicial review.

(8) The expression 'poorer sections' montioned in para 2 (i) of the amended Office Memorandum of 1991 denotes a division among SEBCs on economic criterion. Therefore, no. division or sul>-classification as 'poorer sections' and other backward class (non poorer sections) out of the iden- lilied SEBCs can be made by applicaion of 'means test' based on economic criterion. Such a division in the same identilied and ascertained unit consisting of SEBCs having common characteristics and attributes, the primary charac- F teristic or attribute being the social backwardness is viola- live of clause ( 4) of Article 16 of the Coustitution. Hence, as the division_.of the SEBCs 'poorer sections' and others, -·-~~ brought out in para 2(i) of the impugned amended Office Memorandum dated 25th September 1991 is constitution- ally invalid and impermissible. Accordingly, para 2(i) of the G. said amended Office Memorandum is struck down. - ..

9) No maximum ceiling of reservation can be fixed ·under Article 16(4) of the Constitution for reservation of appoint- ments or posts in favour of any backward class of citizens H 'in the Services under the State'. The decisions fixing the

INDRA SAWHNEY v. U.0.1. [PANDIAN, J.] 779

percentage of reservation only up to the maximum of 50% A are unsustainable.

(10) As regards the reservation in the matter of promotion under Article 16(4), I am in agreement with conclusion No. (7) made in paragraph 121 in Part VII of the judgment of my learned brother. B.P. Jeevan Reddy, J.. B

(11) I also agree with conclusion No.(8) of paragraph 121 ofthe judgment of my learned brother, B.P, Jeevan Reddy, J. qua the exception to the rule of reservation to certain Services and posts. c (12) The reservation of 10% of the vacancies in civil posts and Services in favour of other economically backward sections of the people who are not covered by any other scheme of the reservation as mentioned in para 2(ii) of the impugned amended Officer Memorandum dated 25th Sep- D tember 1991 is constitutionally invalid and it is accordingly struck down. In this regard, I acn also in agreement with conclusion No. (11) of paragraph 121 of the judgment of my learned brother, B.P. Jeevan Reddy, J. E ( 13) No section of the SEBCs can be excluded on the ground of creamy layer till the Government - Central and State - takes a decision in this regard on a review on the recommendations of a Commission or a Committee to be appointed by the Government. F

... (14) Para 2(i) and (ii) ufthe amended Office Memorandum dated 25th September 1991 for the reasons given in my judgment and the conclusions drawn above, are struck down as being violative of Article 16(4).

(15) The impugned Office Memorandum dated 13th G August 1990 is held valid and enforceable. So there is no legal impediment in immediately enforcing and implement- ing this lir<t Office Memorandum of 1990.

(16) In Writ Petition No. 1094of1991 (Sree11araya11a Dhar- H

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A ma Paripalana Yogam v. Union of India), there is a prayer (prayer 'b'), inter a/ia, for issuance of a writ of mandamus directing the respondent to implement the impugned un- amended office memorandum dated Bth August 1990. In the light of my conclusions, striking down the amended office memorandum dated 25th September 1991, I direct B the Union of India to immediately implement the un- amended office memorandum dated 13th August 1990.

(17) The Government oflndia and the State Governments have to create a permanent machinery either by way of a c Commission or a Committee within a reasonable time for examining the requests of inclusion or exclusion of any caste, community or group of persons on the advice of such Commission or Committee, as the case may be, and also for examining the exclusion of any pseudo community if smuggled into the list of OBCs. The creation of such a D machinery in the form of a Commission or Committee does not stand in the -vay of immediate implementation of the office memorandum dated 13.8.1990 and the purpose of creating such machinery is for future guidance.

E (18) I am also of the same view of my learned brother, B.P. Jeevan Reddy, J. that it is not necessary to send the matters back to the Constitution Bench of five-Judges.

In the result, for the reasons mentioned in my judgment and the • F conclusions drawn in the summation, the writ petition No. 1094 of 1991 is partly allowed to the extent indicated above and all other Writ Petitions, Transferred Cases and Interlocutory Applications are disposed of accord- ingly. No costs. - THOMMEN, J. The petitioners challenge O.M. No. 36012/31/90- G Estt(SCT) dated 13th August, 1990 as amended by O.M. No. 36012131/90- Estt(SCT) dated 25th September, 1991 providing in civil posts and services under the Government of India for reservation of 27% of the vacancies for the Socially and Educationally Backward Classes (SEBCs) and 10% of the vacancies for other economically backward sections of the people. The H Office Memorandum dated 13th August, 1990, in so far as it is material,

INDRA SAWHNEY v. U.0.1. [TIIOMMEN, J.] 781

reads:- A

2(i) 27% of the vacancies in civil posts and services under the Government of India shall be reserved for SEBC.

(ii) The aforesaid reservation shall apply to vacancies to B be filled by direct recruitment. .......... .

(iii) Candidates belonging to SEBC recruited on the b~sis of merit in an open competition on the same standard prescribed for the general candidates shall not be adjusted against the reservation quota of 27%. C (iv) The SEBC would comprise in the first phase the castes and communities which are common to both the list in the report of the Mandal Commission and the State Govern-ment's lists. A list of such castes/communities is being issued separately. D (v) .............................................................................................. .

The amended Office Memorandum dated 25th September, 1991 E provides:-

2(i) Within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, preference shall be given to candidates belonging to the poorer sections of the SEBCs. In case sufficient number of such candidates are not available, unfilled vacancies shall be filled by the other SEBC candidates.

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

(iii) The criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the H

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A people who are not covered by any of the existing schemes of reservations are being issued separately.

The reservation postulated in these orders for the socially and educa- B tionally backward classes and also for the economically backward sections of the people in the Central Government services to the extent of 27% and 10% respectively is in addition to the reservation already made for the Scheduled Casks and the Scheduled Tribes to the extent of 22.5%.

c These orders are made pursuant to the Report sumitted by the Backward Classes Commission appointed by the President of India under Article 340 of the Constitution. This Report is generally known by the name of the Chairman of the Commission, the Late B.P. Manda!. The petitioners submit that the Report leading to the impugned Government Orders is not based on any scientific or objective study of backwardness in the country, and any attempt to make reservation on the basis of the data supplied in the Report is irrational, unconstitutional and invalid. They say that the Report is conceived in caste prejudices and motivated by caste hatred. The Report does not address itself to a proper identification of true backward- ness for the redressal of which the Constitution permits reservation by quota for the backward classes of citizens to the exclusion of all other persons. On the other hand, the sole criterion on the basis of which backwardness is purportedly identified is caste and nothing but caste. Any order resulting in reservation or other affirmative action on the basis of the wrong conclusions drawn by the Commission is bound to be the very antithesis of equality.

The respondents, supporting the impugned Government orders, con- tend that the Constitution guarantees liberty, equality and fraternity for all classes of people irrespective of their religion, community, caste, occupa- G tion, residence or the like. Every citizen is entitled to equal opportunities. For centuries, large sections of our countrymen have been discriminated against on account of their birth. As a result of such inequity, they have been steeped in poverty, ignorance and squalor. To alleviate their misery and elevate them to positions of equality with the more fortunate, affluent and enlightened sections of our countrymen, the Founding Fathers of the

INDRA SAWl-INEY v_ U.0.L [Tl-IOMMEN, J.] 783

Constitution made special provisions for their uplift. These provisions are meant to protect the truly backward p.,ople of this country, namely, mem- bers of the Scheduled Castes and Scheduled Tribes and other backward classes. They contend that the Manda! Report is a scientific and serious study rationally addressed to the problem of backwardness by identifying it where it is most acutely felt and loudly present, namely, amongst the lowest of the lowly citizens of this country. Those are the members of the low castes as traditionally recognised and identified by the State and Central Government. The various classes of people belonging to such castes are identified as socially, educationally and economically backward and it is in respect of those people that the Government have made the impugned reservations. c The 'indicators' or 'criteria' adopted in the Manda! Report are broadly grouped as social, educational and economic on the basis of castes/classes. The Commission has identified classes with castes and back- wardness with particular castes. Castes which are socially, educationally and economically backward are characterised as backward classes entitled to the benefit of reservation. Persons are grouped on the basis of caste either because they are members of it by reason of their being Hindus or because they were members of it in the past p!ior to their conversion to other religions. Identification of backwardness is thus made with reference to the present or past caste affiliations of the people. The Report says:-

"12.4. In fact, caste being the basic unit of social organisa- tion of Hindu Society, castes are the only readily and clearly 'recognisable and persistent collectivities"'. F "12.6 .... the Commission has also applied some other tests like stigmas oflow occupation, criminality, nomadism, beg- gary and untouchability to identify social backwardness. Inadequate representation in public services was taken as another important test11 • G In regard to non-Hindus, the Report says:-

"12.11 There is no doubt that social and educational back- wardness among non-Hindu communities is more or less of the same order as among Hindu communities. Though H

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A caste system is peculiar to Hindu society yet, in actual practice, it also pervades the non-Hindu communities in India in varying degrees ..... even after conversion, the ex- Hindus carried with them their deeply ingrained ideas of social hierarchy and stratification .... ". B "12.14 ..... even after conversion, the lower caste converts were continu.ed to be treated as Harijans by all sections of the society......... ".

"12.18 ... the Commission has evolved the following rough c and ready criteria for identifying non-Hindu OBCs:-

(i) All untouchables converted to any non-Hindu religion; I and

(ii) Such occupational communities which are known by D the name of their traditional hereditary occupation and whose Hindu counterparts have been included in the list of Hindu OBCs. {Examples : Dhobi, Teli, Dheemar, Nai, Gujar, Kumhar, Lohar, Darji, Badhai, etc.)". E The Report has thus treated all persons who belong, or who had once belonged, to what had been regarded as untouchable or other traditionally backward caste or communities or who belong to certain low occupations as socially, educationally and economically backward.

F The particulars .of the Manda! Report and other material relied on by the Government in making the impugned orders do not directly arise for our consideration at this juncture as this Bench has been constituted to examine the concept of equality of opportunity in matters of public employment, as enshrined in Article 16 and other provisions of the Con- G stitution, 'and settle the legal position relating to reservation' and thus lay down the guideline by which the validity and reasonableness of Govern- ment Orders on reservation can be tested in appropriate cases.

The Concept of Reservation:

H The fundamental question is, what is the raison d'etre of reservation

INDRA SAWHNEY v. U.O.l. [THOMMEN, J.] 785

and what are its limits. The Constitution permits the State to adopt such affirmative action as it deems necessary to uplift the backward classes of citizens to levels of equality with the rest of our countrymen. The backward classes of citizens have been in the past denied access to Government services on account of their inability to compete effectively in open selec- tions on the basis of merits. It is, therefore, open to the Government to reserve a certain number of seats in places of learning and public services in favour of the Scheduled Castes and Scheduled Tribes and other back- ward classes to the exclusion of all others, irrespective of merits. The impugned Government orders, have made reservation by setting aside quotas in Government services exclusively for backward classes of can- didates. c Referring to the concept of equality of opportunity in public employ- ment, as embodied in Article 10 of the Draft Constitution, which finally emerged as Article 16 of the Constitution, and the conflicting claims of various communities for representation in public administration, Dr. Am- D bedkar emphatically declared that reservation should be confined to 'a minority of seats', lest the very concept of equality should be destroyed. In view of its great importance, the full text of this speech delivered in the Constituent Assembly on the point is appended to this judgment. But I shall now read a few passages from it. Dr. Ambedkar stated: E

".... firstly, that there shall be equality of opportunity; secondly that there shall be reservations in favour of certain communities which have not so far had a 'poorer look- in' so to say into the administration .......Supposing, for in- F stance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, nemely, that there shall be an equality of opportunity...... Therefore the G seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority ofseats. It is then only that the first principle could find its place in the Constitution and effective in opera- tion .............we have to safeguard two things, namely, the H

786 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A pinciple of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State ....... .''.

Constituent Assembly Debates, Vol. 7, pp. 701-702 (1948- 49).

B (emphasis supplied)

These words embody the raison d'etre of reservation and its limitations. Reservation is one of the measures adopted by the Constitution to remedy the continuing evil effects of prior inequities stemming form discriminatory practices against various classes of people which have resulted in their social, educational and economic backwardness. Reservation is meant to be addressed to the present social, educational and economic backward- ness caused by purposeful societal discrimination. To attaok the continuing ill effects and perpetuation of such injustice, the Constitution permits and empowers the State to adopt corrective devices even when they have discriminatory and exclusionary effects. Any such measure, in so far as one group is preferred to the exclusion of another, must necessarily be narrowly tailored to the achievement of the fundamental constitutional goal.

What the Constitution permits is the adoption of suitable and ap- E propriate measures to correct the continuing evil effects of prior dis- crimination. Over-inclusiveness in such measures by unduly widening the net of reservation to unjustifiably protect the ill deserved at the expense of the others would result in invidious discrimination offending the Constitu- tional objective. Benign classification for affirmative action by reservation must stay strictly within the narrow bounds of remedial actions. Any such F programme must be consistent with the fundamental objective of equality. Classes of people saddled with disabilities rooted in history of purposeful unequal treatment and consequently relegated to sociaL educational, economic and political powerlessness particularly qualify to demand the extraordinary and special protection of reservation. G Reservation is meant to remedy the handicap of prior discrimination impeding the access of classes of people to public administration. It is for the State to determine whether the evil effects of inequities stemming from prior discrimination against classes of people have resulted in their being reduced to positions of backwardness .and consequent under repre-

INDRA SAWHNEY '" U.0.1. [THOMMEN, J.] 787

sentation in public administration. Reservation is a remedy or a cure for the ill effects of historical discrimination.

While affirmative action programmes by preferential treatment short of reservation in favour of disadvantaged classes of citizens may be justified as benign redressal measures based on valid classification, the more posi- tive affirmative action adopting reservation by quota or other 'set aside' B measures or goals in favour of certain classes of citizens to the exclusion of others most be narrowly tailored and strictly addressed to the problem which is sought to be remedied by the Constitution. Any such action by the State must necessarily be subjected to periodic administrative review by specially constituted authorities so as to guarantee that such policies and c actions are applied correctly and strictly to permitted constitutional ends.

Reservation is not an end in itself. It is a means to achieve equality. The policy of reservation adopted to achieve that end must, therefore, be consistent with the objecti«e in view. Reservation must not outlast its D constitutional object, and must not allow a vested interest to develop and perpetuate itself. There will be no need for reservation or preferential treatment once equality is achieved. Achievement and preservation of equality for all classes of people, irrespective of their birth, creed, faith or language is one on the noble ends to which the Constitution is dedicated. E Every reservation founded on benign discrimination, and justifiably adopted to achieve the constitutional mandate of equality, must necessarily be a transient passage to that end. It is temporary in concept, limited in dura- tion, conditional in application and specific in object. Reservation must contain within itself the seeds of its termination. Any attempt to perpetuate reservation and upset the constitutional mandate of equality is destructive F of liberty and fraternity and all the basic values enshrined in the Constitu- tion. A balance has to be maintained between the competing values and the rival claims and interests so as to achieve equality and freedom for all.

The makers of the Constitution were fully conscious of the unfor- G tunate position of the Scheduled Castes and Scheduled Tribes. To them r.quality, liberty and fraternity are but a dream; an ideal guaranteed by the law, but far too distant to reach; far too illusory to touch. These backward people and others in like positions of helplessness are the favoured children of the Constitution. It is for them that ameliorative and remedial H

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

A measures are adopted to achieve the end of equality. To permit those who are not intended to be so specially protected to compete for reservation is to dilute the protection and defeat the very constitutional aim.

The victims of prior injustice are the special favourites of the laws. Their plight is a shameful scar on the national conscience. It is a constitu- B tional command that prompt measures are adopted by the State for the promotion of these unfortunate classes of people specially to positions of comparative enlightement, culture, knowledge, influence, affluence and prestige so as to place them on levels of equality with the more fortunate of our countrymen. c Reservation must one day become unnecessary and a relic of an unfortunate past. Every such action must be a transient self-liquidating programme. That is the hope and dream cherished by the Constitution Makers and that is the end to which the State has to address itself in D making special provisions for the chosen classes of people for special constittutional protection, so that "persons will be regarded as persons, and discrimination of the type we address today will be an ugly feature of his.tory that is instructive but that is behind us"; Per Justice T. Marshall, Regents of the University of California v. Allan Bakke, 438 US 265, 57 L Ed. 2d 750. See also H. Earl Fullilove v. Philip M. Klutznick, 448 US 448, 65 L E Ed. 2d 902; Metro Broadcasting, Inc. v. Federal Communications Commis- sion, 58 I.W. 5053 (DeciJed on 27.6.1990); Oliver Brown v. Board of Education of Topeka, 347 US 483, 98 L Ed. 2d 873; City of Richmond v. I.A. Croson Co., 488 US 469; Wendy Wygallt v. Jackson Board of Education, 476 US 267, 90 L Ed. 2d 260. F Reservation under the Constitution:

The Constitution seeks to secure to all its citizens Justice, Liberty, Equality and Fraternity. These are the basic pillars on which the grand concept of India as a Sovereign Socialist Secular Democratic Republic G rests. This splendour that is India rests on these magnificent concepts, each of which, supporting the other, unholds the dignity and freedom of the individual and secures the integrity and unity of the nation.

Equality is one of the magnificent cornerstones of Indian democracy: H Smt. Indira Nehnt Gandhi v. Shri Raj Narain, [1976] 2 SCR 347, 659;

INDRA SAWHNEY v. U.0.1. [THOMMEN, J.J 789

Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1981] l SCR 206, 241.; A Waman Rao & Ors. v. Union of India & Ors., [1981] 2 SCR 1, 19. Article 14, 15 and 16 embody facets of the many-sided grandeur of equality; The General Manager, Southern Railway v. Rangachari, [1962] 2 SCR 586, 597; State of Kera/a & Anr. v. N.M. Thomas & Ors., [1976] 1 SCR 906, 956. Article 14 prohibits the State from denying to any person within the B territory of India equality before the law or the equal protection of the laws. All persons in like circumstances must be treated equally. Equality is between equals. It is parity of treatment under parity of conditions. The Constitution permits valid classification founded on an intelligible differen- tia distinguishing persons or things grouped together from others left out of the group. And such differentia must have a rational relation to the c object sought to be achieved by the law: State of Kera/a & Anr. v. NM. T7wmas & Ors., [1976] 1 SCR 906. See also Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar & Ors., [1959] SCR 279.

Any State action distinguishing classes of persons is liable to be condemned as invidious and unconstitutional unless justified as a benign classificational rationally addressed to the legitimate aim of qualitative and rela\jve equality by means of affirmative action programmes of protective measures with a view to uplifting identified disadvantaged groups. All such measures must bear a reasonable proportion between their aim and the means adopted and must terminate on accomplishment of their object. Any legitimate affirmative action rationally and reasonably administered is an aid to the attainment of equality.

In the words of Judge Tanaka of the International Court of Justice: F "....The principle is that what is equal is to be treated equally and what is different is to be treated differently, namely proportionately to the factual difference. This is what was indicated by Aristotle as justitia commutativa and justitia distributiva". G ".... the principle of equality before the law does not mean the absolute equality, namely equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are une- H

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A qua!''.

".... To !real unequal mailers differently according lo their inequality is not only permitted but required ........".

South West Africa Cases (Second Phase), 10 Rep. p. 6, 305-6. B While Article 14 prohibits the State from denying equality to any person, Articles 15and16 are specially concerned with citizens. Article 15(1) probhibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth of them. Clause ( 4) of Article 15 provides that despite the prohibition contained in Article 29(2) against c denial of admission to any citizen into any eduational institution maintained or aided by the State on grounds only of religion, race caste, language or any of them, the State is nevertheless free to make 'any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes'. D These provisions of Article 15 have been construed by this Court in a number of decisions. It is no longer in doubt that, in order to receive the protection of clause (4), the classes of people in favour of whom special provisions are made should necessarily be both socially and educationally backward (and not either socially or educationally backward) or should E have been notified by the President as the Scheduled Castes or the Scheduled Tribes in terms of Article 341 or 342. M.R. Balaji & Ors. v. State of Mysore, 11%3) Supp. 1 SCR 439.

Apart from the Scheduled Castes and the Scheduled Tribes to whom the special provisions, once notified by the President under Articles 341 F and 342, undoubtedly apply, the other 'backward classes' of citizens to whom the special provisions can be extended are not merely backward but are socially and educationally so backward as to be comparable to the Scheduled Castes and the Scheduled Tribes. As stated by this Court in M.R. Balaji & Ors. v. State of Mysore, (1%3) Supp. 1 SCR 439 at 458:- G ".... the Backward Classes for whose improvement special provision is contemplated by Art. 15( 4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes".

H See also Kumari KS. Jayasree & A11r. v. State of Kera/a & Anr., (1977] 1

INDRA SAWHNEY v. U.0.1. [THOMMEN, J.] 791

SCR 194, 198; Janki Prasad Parimoo & Ors. v. State of Jummu & Kashmir A & Ors., (1973] 3 SCR 236, 252; State of Uttar Pradesh v. Pradip Tandon & Ors., (1975] 2 SCR 761, 766; State of Kera/a & Anr. v. N.M. Thomas & Ors., (1976] 1 SCR 906, 997; State of Andhra Pradesh & Anr. v. P. Sagar, (1968] 3 SCR 595, 600 and KC. Vasanth Kumar <f, Anr. v. State of Kamataka, [1985] Suppl. 1 SCR 352, 376. B In the Constituent Assembly during the discussions on draft Article 10 (Article 16), several members belonging to the Scheduled Castes or the Scheduled Tribes expressed serious apprehension that the expression 'backward' was not precise and large sections of people who did not belong to the Scheduled Castes or the Scheduled Tribes were likely to claim the C benefit of reservation at the expense of the truly backward classes of · people. They sought clarification that the expression 'backward' applied only to the Scheduled Castes and the Scheduled Tribes. [See B. Shiva Rao, The Framing of India's Constitution - A Study, (1968) pp. 198-199]. K.M. Munshi, in his reply to this criticism, pointed out: D

"..... What we want to secure by this clause are two things. In the fundamental right in the first clause we want to achieve the highest efficiency in the services of the State - highest efficiency which would enable the services to func- E tion effectively and promptly. At the same time, in view of the conditions in our country revailing in several Provinces, we want to see that backward classes, classes who are really backward, should be given scope in the State services; for it is realised that State services give a Status and an oppor- tunity to serve the country, and this opportunity should be extended to every community, even among the backward people. That being so, we have to find out some generic term and word 'backward class' was the best possible term. When it is read with article 301 it is perfectly clear that the word 'backward' signifies that class of people - does not matter whether you call them untouchables or touchables, belonging to this community or that, - a class ofpeople who are so backward that special protection is required in the services and I see, no reason why any member should be apprehensive of regard to the word 'backward'," H

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

A (emphasis supplied)

Constituent Assembly Debates, Vol. 7, (1948-49), p. 697

Dr. Ambedkar, in his general reply to the debate on the point, stated thus: B ' ... .If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far repre- sentation in the State, then, I am sure they will agree that c unless you use some such qualifying phrase as 'backward' the exception made in favour of reservation will ultimately eat up the rule a/together. Nothing of the rule will remain.. .".

(emphasis supplied) D Constituent Assembly Debates, Vol. 7, (1948-49), p. 702.

The President of India issued the Constitution (Scheduled Castes) the Order, 1950 relating to States, and the Constitution (Scheduled Castes) Union Territories Order, 1951 relating to the Union Territories. Para (2) E of the 1950 Order speaks of "castes, races or tribes which are to be deemed Scheduled Castes in the territories of the States mentioned in the Order". Para (3) of the Order (as amended by Act 108 of 1976 w.e.f. 27.7.1977) provides "notwithstanding anything contained in para (2), no person professing a religion different from the Hindu, the Sikh or the Buddhist F religion shall be deemed to be a member of the Scheduled Castes". See Manual of Election Law, Vol. I (1991), p. 141. 1

The 1950 Order of the President (as amended) shows that in the territories of the States mentioned in the Order no person who is not a G Hindu or a Sikh or a Buddhist can be regarded as a member of the Scheduled Castes. Article 15(4) speaks of 'socially and educationally back- ward classes of citizens' and 'the Scheduled Castes and the Scheduled

(1) The 1951 Order relating to the Union Territories. however, regards only persons professing Hindu or Sikh religion as members of the Scheduled Caste. and docs not include those professing Buddhist or any other religion.

INDRA SAWHNEY v. U.0.1. [TI-!OMMEN, J.] 793

What is sought to be identified is not caste, religion and the like, but social and educational backwardness, generally manifested by disabilities such as illiteracy, humiliating isolation, poverty, physical and mental H

794 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A : degeneration, incurable diseases, etc. Living in abject poverty and squalor, engaged in demeaoing occupations to keep body and soul together, and bereft of sanitation, medical aid and other facilitieS, these wJ01tunate classes of citizens bearing the badges of historical discrimination and naked exploitation are generally uaceable in the midst of the lowest of the low classes euphemistically descnoed as Harijans and in fact treated as un- B touchables. To deny them the constitutional protection of reservation soely by reason of change .of faith or religion is to endanger the very concept of secularism and the raison d'eUe of reservation.

No class of citizens can be classified as backward solely by reason of religion, race, cast.; sex, descent, place of birth, ·resid'enc.e or any of them. But any one or all of these factors mention~·d in Article 15(1) or Article 16{2) can be taken into account along· with other relevant factors in identifying classes of citizens who are socially and educatio'nally backward. What is significant is that such identification should not be made solely with reference to the criteria specified in Article 15(1) or Article 16(2), but with reference to the social and educatiJnal backwardness of classes of citizens. Referring to the words "socially and educationally backward clas- ses of citizens" appearing in Article 15(4), this Court stated in State of Uttar Pradesh v. Pradip Tandon & Ors., (1975) 2 SCR 761 al .767:

E "The expression 'classes of citizens' indicates a homogeneous section of the people who are grouped together because of certain likeliness and common traits and who are identifiable by some common attributes. The homogen~ity of the class of citizens is social and education- F al backwardness. Neither caste nor religion nor place or birth will bi.th; ~orm element of common attributes to make them a class of citizens".

It may, however, be true that backwardness is associated specially with people of a particular religion or race or caste or place , of birth or residence or any other category mentioned in Article 15(1) or Article 16(2). In that event, any .one or more of sul·l-- crih·ri~. -;ilong with other relevant factors, may be taken into consideration to reach the conclusion as to social and educational backwardness. Hard and primitive living conditions in remote and inaccessible areas, where the inhabitants have neither the means of livelihood nor facilities for education, health service

INDRA SAWHNEY v. U.O.l. [TI-IOMMEN, J.] 795

or other civic amenities, are some such relevant criteria. Janki Prasad A Parimoo & Ors. v. State of Jummu & Kashmir & Ors., [1973] 3 SCR 236, 259; State of Andhra Pradesh & Anr. v. P. Sagar, [1968] 3 SCR 595, 600. . ,, The city slum dwellers, the inhabitants of the pavements, afflicted and disfigured in many cases by diseases like leprosy, caught in the vicious grip of grinding penury, and making a meagre living by begging besides the B towering mansions of affluence, transcend all barriers of religion, caste, race, etc. in their degradation, suffering and humiliation. They are the liviog monument of backwardness and a shameful reminder of our national indifference, a cruel betrayal of what the preamble to the Constitution proclaims. No matter what caste or religion they may claim, their present c plight of animal like existence, living on crumbs picked from garbage cans or coins flung from moviog cars - a common painful sight in our metropolis - entitles them to every kind of affirmative action lo redeem themselves from the in equities of past and continuing discrimination. Rehabilitation and resettlement of these unfortunate victims of societal indifference and D Governmental neglect and appropriate and urgent measures for State aided health care, education and special technical training for their por- geny with a view to their employment in public services are the primary responsibility of a welfare State. These are the classes of poeple specially chosen by the law for prompt and effective affirmative action, not by reason E of their caste or religion, but solely by reason of their backwardness in tracing which any relevant criterion is a useful tool.

In identifying backwardness, caste, religion, residence etc. are of course relevant factors, but none of them is a dominant or much less an indispensable factor. What is of ultimate elevance is the social and educa- F tional backwardness of a class of citiznes, whatever be their caste, religion, etc.

Identification of the backward classes for the purpose of reservation must be with reference to their social and educational backwardness G resulting from the continuing ill effects of prior discrimination or exploita- tion; and not solely with reference to any one or more of the prohibited criteria mentioned in Article 15(1) or Article 16(2), although any one or more of such criteria may have been the ultimate cause of such discrimina· lion or exploitation and the resultant poverty and backwardness. As stated H

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

A by this Court, in R. Chitralekha & Anr. v. State of Mysore & Ors., [ 1964] 6 SCR 368 at 388:

'' ... the expression 'classes' is not synonymous with cas- tes .... caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class B to which he or they belong''.

What is sought to be identified for the purpose of Article 15(4) or Article 16(4) is a socially and educationally backward class of citizens. A class means 'a homogeneous section of the people grouped together be- c cause of certain likeliness or common traits, and who are identifiable by some common attributes'. Tri/oki Nath & Anr. v. State of Jummu & Kashmir & Ors., (1969] 1 SCR 103, 105. They must be a class of people held together by the common link of backwardness and consequential disabilities. What binds them together is their social and educational backwardness, and not any one of the prohibited factors like religion, race or caste. What chains them, what incapacitates them, what distinguishes them, what qualifies them for favoured treatment of the law is their backwardness: their badges of proverty, disease, misery, ignorance and humiliation. It is conceivable that the entire caste is a backward class. In that event, they form a class of people for the special protection of Articles 15(4) and 16(4), not by reason of their caste, which is merely incidental, but by reason of their social and educational, backwardness which is identified to be the result of prior or continuing discrimination and its ill effects and which is comparable to that of the Scheduled Castes and the Scheduled Tribes. It is also conceivable that a class of people may be identified as backward without regard to their caste, provided backwardness of the nature and degree mentioned above binds them as a class. M.R. Ba/aji (supra) at pp. 458, 474; Minor P. Rajendran v. State of Madras & Ors., (1968] 2 SCR 786; State of Andhra Pradesh & Anr. v. P. Sagar, (1968] 3 SCR 595; A. Peeriakaruppan etc. v. State of Tamil Nadu & Ors., (1971] 2 SCR 430; State of Andhra Pradesh & Ors. G v. U.S. V. Bairam Etc., [1972] 3 SCR 247, 280, 285; Triloki Nath & Anr. v. State of Jammu & Kashmir & Ors., (1969] 1 SCR 103; State of Uttar Pradesh v. Pradip Tandon & Ors., (1975] 2 SCR 761; Kumari K.S. Jayasree & Anr. v. State of Kera/a & Anr., (1977] 1 SCR 194; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India & Ors., [1981] 2 SCR 185; R. Chitralekha H & Anr. v. State of Mysore & Ors., [1964] 6 SCR 368.

INDRA SAWHNEY ''· U.0.1. [THOMMEN, J.] 797

Any identification made for the purpose of Article 15 or Article 16 c solely with reference to caste or religion, and without regard to the real issue of backwardness, will be an impermissible classification resulting in invidious reverse discrimination. The fact that identification of backward- ness may involve a reference to religion, race, caste, occupation, place of residence or the like in respect of classes of people does not mean that any one of these factors is the sole or the dominant or the indispensable criterion. Backwardness may be the result of a combination of two or more of these factors. Persons of a particular place or occupation may have been enslaved as bonded labourers, or otherwise held in serfdom and exploited and discriminated against, and may have over a period of time degenerated to such social and educational backwardness as to qualify for the special protection of the Constitution. No matter to what caste or community or religion they belonged or from what place they came, their present plight stemming from prior inequities and continuing over a period of time and thus placing them in a state of total helplessness qualifies them for the special protection of reservation. F Historically, backwardness, as stated above, has been most acute at the lowest levels of our society and it has been invariably identified with low castes and demeaning occupations. But if, as a matter of fact, classes of citizens of higher castes have suffered continuously by reason of dis- crimination or exploitation by persons having authority and power over them and have consequently been reduced to poverty, ignorance and G isolation resulting in social and educational backwardness, whatever be the caste of the exploiters or of the victims, the constitutional protection has to be extended to such classes of victims. They must be helped out of their present plight resulting from prior or continuing discrimination or exploita- tion. Proof of their backwardness is not in their caste or religion, ·.but in their poverty, ignorance and consequential disabilities. H

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

A It is generally a combination of factors such as low birth and demean- ing occupation, or lack of any occupation, that has historically subjected classes of people to invidious discrimination and humiliating isolation and consequential poverty and social and educational backwardness. These are

B questions of fact which must be ascertained before the qualifying back- wardness is identified. To disregard any one of these factors, particularly .. the most compelling reality of Indian life originating in low castes and demeaning occupations generally associated with them, such as that of scavenger, sweeper, fisherman, dhobi, barber and the like, and resulting in abject poverty, is to ignore the relevant criteria in identifying backwardness warranting reservation. What is sought to be identified for the purpose of reservation is not caste or religion, but poverty and backwardness caused by historical discrimination and its continuing evil effects. Caste may be a guide in this search, just as occupation or residence may be a guide, but what is sought to be identified is none but backwardness stemming from historical discrimination. If caste is more often than not a guide in the search for backwardness and if the lowest of the low castes has for historical reasons become the indicium of backwardness of the kind attract- ing reservation, caste in the absence of any better guide is a factor to be taken into account along with other factors such as pove;ty, illiteracy, physical and mental disabilities and other diseases caused by malnutrition, unhygienic conditions and the like. What the Constitution prohibits is not caste or non-discriminatory and inoffensive customs and practices. based on castes; or ameliorative measures to uplift the downtrodden poverty stricken members oflow castes; what it prohibits is exclusionary discrimina- tion based solely on caste or any other criterion enumerated in Article 15(1) or Article 16(2). Any one or all of such criteria along with any other relevant criterion, such as poverty, illiteracy, disease, etc. may be legitimately used to identify backwardness for the purpose of reservation.

To contend that caste, and caste along, is the criterion identification of backwardness is to disregard the innumerable reasons for backwardness. At the same time, to ignore caste as a factor in identifying backwardness for the purpose of reservation is to shut one's eyes to the realities and ignore the cause of injustice from which large sections of people in this country have for generations suffered and still suffer, namely, naked ex- ploitation and discrimination by those in positions of power and affluence. The realities of life in India militate against total exclusion of consideration based on caste or total con~tration on caste in identifying backwardness

INDRA SAWHNEY v. U.0.1. [THOMMEN, J.] 799

caused by past inequities. A

The Constitution is neither caste-bli<td nor caste-prejudiced nor caste-overcharged, but fully alive to caste as one of the relevant criteria to be reckoned in the process of identification of backward classes of citizens. India is not a nation of castes but of people with roots in divergent castes. What the Constitution seeks to identify is not the backward caste, but the B backward class of citizens who may in many cases be partly or in some cases predominantly or even solely identified with particular caste. See Minor P. Rajendran v. State of Madras & Ors., [1968] 2 SCR 786, 790.

The question is not whr.ther the Constitution is caste-blind or caste- C prejudiced; the question really is who are the backward classes of citizens intended to be protected by reservation under Article 15 or Article 16. If reservation is limited solely to the Scheduled Castes and the Scheduled Tribes and other comparably backward classes of citizens, as it must be under the Constitution, then the Harijans, the Girijans, the Adivasis, the D Dalits, and other like backward classes of citizens, once known as the 11 untouchables" or the "outcastes" or the 11 depressed classes" by reason of their "low'1 birth and ndemeaning" occupation, or any other class of citizens afflicted by like degree of degeneration deprivation caused by prior and continuing discrimination, exploitation, neglect, poverty, disease, isolation, bondage and humiliation, whatever be their caste, religion qr place of origin, will alone qualify for reservation. Call them a class or a caste or a race or a tribe or whatever nomenclature is appropriate, they are the only legitimately intended beneficiaries of reservation. Their roots of origin in the lowest of the low segments of society; their affiliation with what is traditionally regarded as demenaning occupations; their humiliating and inescapable segregation and chronic isolation from the rest of the popula- tion; their social and educational deprivation and helplessness; their abys- mal poverty and degenerating backwardness; all this and more most humiliatingly branded them in the past as "outcastes" or "untouchables" or "depressed classes" or whatever other nonmenclature one might ascribe to describe them. It is their present plight of continuing poverty and back- G wardness stemming from identified historical discrimination, .whatever be the religion or faith they presently profess, that the Constitution entitles them to the special protection of reservation. The fact thaithe search to identify backwardness for the purpose of reservation will invariably lead one to these so called outcastes or the lowest of the low castes or untouch- H

800 SUPREME COURT REPORTS (1992) SUPP. 2 S.C.R.

A ables does not vitiate identification so long as what is sought to be iden- tified is not caste but backwardness.

Poverty by itself is not the test of backwardness, for if it were so, most people in this country ·would be in a position to claim reservation. ...:.._ B Janki Prasad Parimoo & Ors. v. State of Jammu & Kashmir & Ors., [1973] 3 SCR 236, 285. Reservation for all would be reservation for none, and that would be an ideal condition if affluence, and not poverty, was its basis. But unfortunately the vast majority of our people are not blessed by affluence but afflicted by poverty. Poverty is a disgrace to any nation and the resultant backwardness is a shame. But the Constitution envisages reserva- C tion for those persons who are backward because of identified prior victimisation and the consequential poverty. Poverty inYariably results in social and educational backwardness. In all such cases the question to be asked, for the purpose of reservation, is whether such poverty is the result of identified historical or continuing discrimination. No matter what caused the discrimination and exploitation; the question is, did such inequity and injustice result in poverty and backwardness.

It is possible that poverty to which classes of citizens are reduced making them socially and educationally backward is the ultimate result of prior discrimination and continuing exploitation on account of their religion, race, caste, sex, descent, place of birth or residence. Identification of their social and educational backwardness with reference to their proverty is valid, if the ultimate cause of poverty is prior discrimination and its continuing evil effects, albeit, by reason of their religion, race, caste etc. Members of religious minorities or low castes or persons converted from amongst tribals or harijans to other religions, but still suffering from the stigma of their origin, or persons of particular areas or occupations sub- jected to discrimination rooted in religious or caste prejudices and the like or to economic exploitation, forced labour, social isolation or other vic- timisation may find themselves sinking deeply into inescapable and abysmal poverty, disease, bondage and helplessness. 'The classes of citizens who are deplorably poor automatically become socially backward'. M.R. Balaji & Ors. v. State of Mysore, [1963] Supp. 1 SCR 439 at 460. In all these cases, if classes of victims afflicted by poverty and disease are identified as socially and educationally backward, as in the case of the Scheduled Castes and the. Scheduled Tribes, by reason of past societal or Government or any other kind of discrimination or exploitation, they qualify for reservation.

INDRA SAWHNEY V. U.0.1. [TIIOMMEN, l.J 801

See Janki Prasad Parimoo & Ors. v. State of Jammu & Kashmir & Ors., A [1973] 3 SCR 236, 299.

Poverty reduces a man to a state of helplessness and ignorance. The poor have no social status. They have no access to learning. Over the years they invariably become socially and educationally backward. They may have no place in society and no education to improve their conditions. For them, employment in services on the basis of merits is a far cry. All these persons, along with other disadvantaged groups of citizens, are the favourites of the law for affirmative action without recourse to reseriiation. What." required for the further step of reservation is proof of prior discrimination resulting in proverty and social and educational backwardness. It is not every class of poverty stricken persons that is chosen for reservation, but only those whose proverty and the resultant backwardness are traceable to prior discrimination, and whose backwardness, furthermore, is comparable to that of the Scheduled Castes and the Scheduled Tribes. This is a fair and equitable ~djustment of constitutional values without. placing any undue burden on particular classes of citizens. State of Uttar Pradesh v.. Pradip. Tandon & Ors., [1975] 2 SCR 761; State of Ketala & Anr. v. N.M. Thomas & Ors., [1976] 1 SCR 906, 960, 997; Kumari K.S. Jayasree & Anr. v. State of Kera/a &Anr., [1977] 1SCR194; K.C. Vasanth Kumarv. State of Kamataka, [1985] Supp. 1 SCR 352, 399, 400. E . Article 16 deals with equality of opportunity in matters of public employment. The kind of backwardness which is required to attract the I special provisions protecting the backward classes of citizens under Article 16 in respect of public employment is identical to the social and educational backwardness mentioned in Article 15(4). M.R. Balaji & Ors. v. State of F Mysore, [1963] Supp.1SCR,439, 414;/anki Prasad Parimoo & Ors. v.State of Jammu & Kashmir & Ors., [1973] 3 SCR 236. These two Article are facets of equality specially guaranteed to citizens, while Article 14 prohibits the State from denying to any person equality befote the law cir the equal protection of the laws.State of Kera/a &Anr. v. N.M. ·Thomas & Ors., [1976] 1SCR906, 956. Clause (1) of Article 16 guarantees equality of opportunity for all citizens in , G matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preferen- ces in favour of the disadvantaged classes of citizens to improve their condi- tions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. Clause (2) prohibits discrimination against H

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

A any cit~ns in respect of any public employment 'on grounds only of religion, race,. caste, sex, descent, place 'of birth, residence or any of them'. Article 16 thus guarantees equality of opportunity and prohibits discrimination of any kind solely 'on any one or more of the grounds mentioned in clause (2). Nevertheless, clause (4) of this Article provides that it is open to the State to ., B make 'any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State; is. not adequately represented in the services under the State'. It is an enabllilg provision conferring a discretionary power on the State; an ameliorative harmonisation of conflicting norms to stretch to the utmost extent the fron- tiers of equalify; an emphatic assertion of equality between equals and C inequality between unequals so as to achieve the maximum degree of qualita- tive and relative equality by means of affirmative action even to the point of reservation. It is in the nature of an exception or a proviso to the general rule of equality: The General Manager, Southern Railway v. Rangachari, [1962] 2 SCR 586, 599; M.R. Balaji (supra) at p. 473; State ofAndhra Pradesh &Anr. v. D P. Sagar, [1968] 3 SCR 595; State of Kera/a & Anr. v. N.M. Thomas & Ors., [1976] 1SCR906;Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India & Ors., (1981) 2 SCR 185; Triloki Nath & Anr. v. State of Jammu & Kashmir & Ors., [1969) 1 SCR 103, 104; CA. Rajendran v. Union of India & Ors., [1968) 1 SCR 721, 730, 733; State of Punjab v. Hiralal & Ors., [1971] 3 SCR 267, 272; T. Devadasan v. The Union of India & Anr., [1964] 4 SCR 680. E Dr. Arnbedkar called it an exception; see Constituent Assembly Debates, Vol. 7 (1948-49) p. 702 (quoted above).

The twin conditions to warrant reservation under Article 16(4) are: backwardness of the chosen classes of citizens and their inadequate repre- sentation in the public services. The backwardness of the classes of citizens mentioned in Article 16(4) is, as stated earlier, of the same degree and kind of social and educational backwardness as postulated in Article 15(4). Article 16(4) is meant for the protection of the Scheduled Castes and the Scheduled Tribes and other comparably backward classes of citizens who .... are the unfortunate victims of continuing ill effects of identified prior discrimination.

Whether the conditions postulated for reservation are satisfied or not is a matter on which the State has to form an opinion. But the opinion of the State must be foundod on reason. The satisfaction on the basis of which an opinion has been formed by the, State must be rationally supported by

INDRA SAWHNEY v. U.O.L[TIIOMMEN, J.] 803

an objective consideration. The State must take into account all relevant .A matters and eschew from its mind all irrelevant matters, and made a proper assessment of the competing claims of classes of citizens and evaluate their respective backwardness before it comes to the conclusion that particular classes of citizens are so backward and so inadequately represented in the public services as to be worthy of special protection by means of reserva- B tion. This must be an objective evaluation of the competing claims for_ reservation. Any such conclusion must be subject to periodic administrative review by a permanent body of experts with a view to adjustment and readjustment of the State action in accordance with -the changing cir- cumstances of the beneficiaries of such action. The conclusion thus peri- odically arrived at by such administrative reviewing body must necessarily C pass the test of judicial review whenever challenged. A. Peeriakaruppan etc. v. State of Tamil Nadu & Ors., [1971) 2 SCR 430. No matter whether such orders are regarded as legislative or executive or whichever nomenclature one may ascribe to it, the test for judicial review laid down in Shri Sitaram Sugar Company Ltd. & Anr. Etc. v. Union of India & Ors., '(1990) 1 'SCR D 909, must necessarily govern consideration of such questions. After an exhaustive review of authorities on the point, a Constitution Bench of this Court stated: , "The true position, therefore, is that .any act of the repository of power, whether legislative or administrativeI or quasi-judicial, is open to challenge if it is in conflict with E

the Constitution or. the governing Act or \ \ the general .prin- ciples of the law of the land or it is so arbitrary or un- reasonable that no fair minded authority could ever have made it". p. 946. F See also the principle discussed in 'Supreme Court Employees' Welfare Association v. Union of India & Anr., (1989] 4 SCC 187.

Identification of backwardness is- an ~ver continuing process of in-

' • clusion and exclusion. Classes of citizens entitled to the Constitutional G protection of reservation must be constantly and periodically identified for their indusion and for the exclusion of those who do n\lt qualify. To allow 1 the undeserved to benefit by reservation is to deny protection to those who are meant to. be protected. As stated by this Court in A. Peeriakaruppan etc. v. State of Tamil Nadu & Ors., [1971] 2 SCR 430 at 444: H I

804 SUPREME COURT REPORTS j1992J SUPP. 2 S.C.R.

A "... But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be backward class for all times. Such an approach would defeat the very purpose of the reserva- tion because once a class reaches a stage of progess which some modern writers call as take off stage then competition B is necessary for their future progress. The Government sho'uld always keep under review the question of reserva- tion of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should not be c allowed to become a vested interest.. .. .It must be remem- bered that the Government's decision in this regard is open to judicial revie~" ·

kinds of disadvantages and disabilities and for all classes of people. It is a H special and powerful weapon to wield which with less than the very special \ ( \

INDRA SAWHNEY v. U.0.1. [THOMMEN, J.] 805

care and caution and otherwise than in the inost exceptional situations, peculiar to extreme cases of backwardness, that the Constitution envisages is to give rise to invidious reverse discrimination exceeding the strict bounds of Article 16( 4) and to create hateful caste-prejudices and divisions between classes of people.

Articles 15(4) and 16(4r refer to the same classes of backward citizens. But they do not refer to identical remedies. While Article 15(4) speaks of special provisions for the advancement of backward classes, Article 16(4) expressly permits the State to make reservation of appoint- ments or posts in public services in favour of such classes. It is true that both are enabling provisions allowing the State to adopt such affirmative action programmes as are necessary including reservation of seats or posts. . But, unlike Article 16(4), Article 15(4) is not so worded as to suggest that it is exclusionary in character. The 'special provision' contemplated ·in Article' 15(4) is an emphatic reference to the affirmative action which the State may adopt to improve the conditions of the disadvantaged members of the backward classes of citizens. Significantly, Article 15(4) does :iot specifically speak of reservation, but it has been generally understood to include that power. M.R. Ba/aji & Ors. v. State of Mysore, [1963] Supp. SCR

439. While the State may adopt all such affirmative action programmes as it deems necessary for all disadvantaged persons, any special provision amounting to rese,vation and consequent' exclusion from.consideration of all the others in respect of the reserved quota in matters falling outside Article 16(4) must be subjected to even greater scrutiny than in the case of those falling under it. ·

The concept of equality is not inconsistent with reservation in public services because the Constitution specially says so, but, in view of its exclusion of oth'ers irrespective of merits, it can be resorted to only where warranted by compelling State interests postulated in Article 16. The State • must be satisfied that in order to achieve equality in given cases, reservation is unavoidable by reason of ,the nature and degree of backwardness. Reservation must be narrowly taifored to that end, and subjected to strict scrutiny.

Affirmative action to redress the conditions of backward classes of citizens may be adopted either by a programme of preferential treatment extending certain special advantages to them or by reservation of quotas H

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

A in their favour to the total exclusion of everybody outside the favoured groups. The validity of both these measures depends on classification founded on intelligible differentia having rational and substantial nexus with the object sought to be achieved, i.e., the redressal of backwardness. And such differentiation or classification for special preference must not be unduly unfair to the persons left out of the favoured groups. B While prefereniial treatment without reservation merely aids the backward classes of citizens to compete more effectively with the more meritorious and forward classes of citizens, the more drastic measure of reservation totally excludes all classes of people falling outside the .back- C ward classes of.citizens from competing in the reserved quota of seats or posts. No matter what qualifications they posses and how superior are their merits, these persons not belonging to the preferred groups are prevented from competing with those of the preferred groups in respect of the r~se;.yed seats or posts, while candidates belonging to the preferred groups are entitled to compete for any seat or pos~ whether in the general category or in the reserved quota.

Preference without reservation may be adopted in favour of the chosen classes of citizens by prescribing for them a longer period for passing a test or by awarding additional marks or granting other advantages like relaxation of age or other minimum requirements. (See the preferential treatment in State of Kera/a & Anr. v. N.M. Thomas & Ors., [1976) 1 SCR

906. Furthermore, it would be within the discretion of the State to provide financial assistance' to such persons by way of grant, scholarships, fee concessions etc. Such preferences or advantages are like t.emporary crutches for additional support to enable the members of the backward and other disadvantaged classes to march forward and compete with the rest of the people. T.hese preferences are extended to them because of their inability otherwise to compete effectively in open selections on the basis of. merits for appointment to posts in public services and the like or for selecti"n to ~oademic courses. Such preferences can be extended to all CJ disadvantaged classes of citizens, whether or not they are victims of prior· discrimination. What qualifies persons for preference is backwardness or disadvantage of any kind which the State has a responsibility to ameliorate. The blind and the deaf, the dumb and the maimed, and other handicapped persons qualify for preference. So do all other classes of citizens who are H at a comparative disadvantage for whatever reason, and whether or not

INDRA SAWHNEY v. U.0.1. (IBOMMEN, J.] 807

they are victims of prior discrimination. All these persons may be A , beneficiaries of preferences short of reservation. Any such preference, although discriminatory on its face, may be justified as a benign classifica- tion for affirmative action warranted by a conmpelling state interest.

In addition to such p~eferences, quotas may be provided exclusively reserving posts in public services or seats in academic institutions for B backward people entitled to such protection. Reservation is· intended to redress backwardness of a higher degree. Reservation prima facie is the very antithesis of a free and open selection. It is a discriminatiory exclusion of the disfavoured classes of meritorius candidates: M.R. Balaji (supra). It is not a case of merely providing an advantage or a concession or c preference in favour of the backward classes and other disadvantaged groups. It is not even a handicap to disadvantage the forward classes-so as /

to attain a measure of qualitative or relative equality between the two groups. Reservation which excludes from consideration all those persons falling outside the specially favoured groups, irrespective of merits ~nd qualifications, is much more positive and drastic a discrimination - albeit to achieve the same end of qualitative equality - but unless strictly and narrowly tailored to a compelling constitutional mandate, it is unlikely to qualify as a benign discrimination. Unlike in the case of other affirmative action programmes, backwardness by itself is not sufficient to ,. warrant reservation. What qualifies for reservation is backwardness which is the result of identified past discrimination and which is comparable to that of the Scheduled Castes and the Scheduled Tribes. Reservation :s a remedial action specially addressed to the ill effects stemming from historical dis- crimination. To ignore this vital distinction between affirmative action .short of reservation and reservation by a predetermined quota as a remedy for past inequities is to ignore the special characteristic of the constitutional grant of power specially addressed to the constitutional recongnised back- wardness.

The object of the special protection guaranteed by Article 15( 4) and 16( 4) is promotion of the backward classes. Only those classes of citizens who are incapable of uplifting themselves in order to join the mainstream of upward mobility insociety are intended to be protected, The wealthy and the powerful, however socially and educationally backward they may be ·by reason of their ignorance, do not require to be protected, for they have the necessary strength to lift themselves out of backwardness. The rich and the H

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

A powerful are not the special favourites of the Constitution. Backward they may be socially and educationally, but that is a shame which they have the steam to remove and the constitution does not extend to them the special protection of reservation. It is not sufficient that the persons meant to be protected are backward merely by reason of illiteracy, ignorance and social backwardness, If they have, inspite of such handicaps, the necessary financial B strength to raise themselves, the Constitu.tion does not extend to them the protection of reservation. The chosen classes of persons for whom reserva- tion is meant are those who are totally unable to join the mainstream of upward mobility because of their utter helplessness arising from social and educational backwardness and aggravated by economie disability. c Any State action resulting in reservation must, therefore, be so tailored as to weed out and exclude all persons who have attained a certain predetermined economic level. Only persons falling below that level must qualify for reservation. This economic level has of course to be varied from time to time in accordance with the changing value of money. See the Govt. Order upheld by this Court in Kumari K.S. Jayasree & Anr. v. State of Kera/a & Anr., [1977] 1 SCR 194.

The directive principle contained in Article 46 emphasises the over- riding responsibility and compelling interest of the State to promote the educational and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and the Scheduled Tribes. T·hey have to be protected form social injustice and all forms of exploitation. This principle must necessarily guide the construction of Articles 15 and 16. All affirmative action programmes must be inspired by that principle and addressed to that end. Whether such action should be in the nature of preferences or by recourse to reservation is a matter on which the State must, by an objective evaluation of the degree and nature of backwardness and with reference to other constitutional principle, .come to a conclusion.

The State has a vital interest to uphold the efficiency of administra- G tion. To ignore efficiency is to fail the nation. Any step taken by the State in considering the claims of members or the Scheduled Castes and Scheduled Tribes for appointment to public services and posts must be consistent with the maintenance of efficiency of administration. This prin- ciple, as stated in Article 335, must necessarily guide all affirmative action programmes for backward and other disadvantaged classes of people in

INDRA SAWHNEY v. U.O.I. [TIIOMMEN, J.] 809

matters of appointment to public services and· posts. Likewise, efficiency being a compelling State interest, it must strictly guide affirmative action in matters of admission to academic institutions, and more so in specialised institutions of higher learning, for in the final analysis efficiency of public administration is governed by the quality of education and the' skill of the scholars. To weaken efficiency is to injure the nation. Any reservation made without due regard to the command of Article 335 is invidious itnd imper- missible. The General Manager, Southern R:Ulway v. Ranga'Jiari, (1962) 2 SCR 586; Akhil Bhartiya Soshit Karamchari Sangh (Railway) v. Union of India & Ors., (1981) 2 SCR 185. .

Dr. Ambedkar was unequivocal when he declared that reservation must be confmed to a minority of the available posts, lest it should destory the very concept of equality and thm undermine democracy. Any excessive reservation or any unnecessarily prolonged reservation will result in in- vidious discrimination. What exactly is the total percentage of reservation at a given time is a matter for the State to decide, dependent on the need of the time. But in no case shall rese,rvation overstep the strict boundaries of minority of se,ats or posts or outlast the reason for it. It must remain ' well below 50% of available seats or posts. Every reservation.must be made with a view to its early termination on the successful accompli5hment of its object. E It has been contended that reservation can be made not only at the time of initial appointment to a service, but also at the time of promotion to a higher post. Although this point does not directly arise from the impugned orders, it is too vital an aspect of the concept of reservation under Article 16(4) to be overlooked, and it requires, therefore, to be dealt with, 'llbeit briefly, and particularly in deference to the submissions at the bar. This important question must be considered with reference to the overriding principle of fairness and efficiency of administration.

To be. overlooked at the time of promotioh in favour of a person who is junior in service and having no claim to superior merits is to cause frustration and passio11atc prejudice, hostility and ill will not only in the mind of the overlooked candidate, but also in the minds of the generality of employees. Any such discrimination is unfair and it causes· dissatisfac- tion, indi.•ci!'line and inefficiency.

Article 335 requires that "in the making of appointments to services H

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

A and posts in connection with the affairs of the Union or of a State" the claims of the members of the Scheduled Castes and Scheduled Tribes must be considered 'consistently with the maintenance of efficiency of administration'. If that is the constitutional mandate with regard to the Scheduled Castes and the Scheduled Tribes, the same principle must necessarily hold good in respect of all backward classes of citizens. The ... B requirement of efficiency is an overriding mandate of the. Constitution. An inefficient administration betrays the present as well as the future of the nation.

'Reservation of appointments or posts' mentioned in Article 16(4) is with reference· to appointments 'in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State'. The condition precedent to making any such reservation is the satisfaction of the State as to the inadequate repre· sentation of any backward class of citizens in the services under the State. In respect of any such class, it is open to the State to make 'any provision for the reservation of appointments ~r posts'. ' An appointment is necessarily to a post, but every appointment need not necessarily be to a post in a service. An appintment to an ex-cadre post is as much as appointment to a post as it is in' the case of a cadre post. E The words 'appointments or posts' used in the alternative, and in respect of which reservation can be made, indicate that the appointment con- templated in Article 16(4) is not necessarily confined to posts in the services, but can be made to any post whether or not borne on the cadre of a service. Inadequate representation of any backward class of citizens enables the State to make provisions for the reservation of 'appointments or posts'.

The word 'post' is often used in the Constitution in the wider sense for various purposes [see for example, Articles 309, 310(1) and 335]. It is in that sense that the words 'appointments or posts' in Article 16(4) should be understood. The reasoning to the contrary in The General Manager, Southem Railway v. Rangachari, (1%2] 2 SCR 586 was partly influenced by certain concessions made by the respondents' counsel as to the nature of the post contemplated in Article 16(4) and the applicability of reservation to selection posts.

H The object of reservation is to maintain numerical and qualitative or

' INDRA SAWHNEY v. U.0.1. [TIIOMMEN, J.] 811 _/ relative equality by ensuring sufficient representation for all classes of A \ citizens. In whichever service backward class of citizens is inadequately represented, it is open to the State to create sufficient number of post• for direct appointments. No matter whether the appointment is maQ.e to a cadre post or an ex-cadre post, the State action is beyond reproach so long as the constitutional objective of numerical and qualitative equality of "opportunity_ is maintained by making direct appointments at the ap- B propriate levels whenever inadequate representation of any backward class in the services is noticed by the State.

The intitial appoin1111ents may be made at various levels or grades of the hierarchy in the service. There is no warrant in Article 16{4) to c ' conclude from the expression 'reservation ()(appointments or posts' that reservation extends not merely to the initial ailJ>ointment, but to every stage of promotion. Once appointed in a service, ky further discrimination in matters relating to conditions of service, such as salary, increments, promo-· tions, retirement benefits, etc. is constitutionally impermissible, it being the very negation of equality, fairness and justice. D

To construr the expression 'p.ost' so as to make reservation ap- plicable at the stage of promotion by selection or otherwise is to unduly and unfairly .discriminate against persons who are already in the service and are senior and no less meritorious in comparision to the reserved E candidates. Promotion by selection, though based on merits, is nltimately governed by seniority, for the concerned rules generally provide that, where merits are equal, officers will be ranked according to their seniority. In the case of promotion by seniority subject to fitness, merits are not entirely disregarded, for even a senior officer can be overlooked in favour of a F "junior officer, if the former is found to be urifit for promotion. In all promoti:ins, whether by selection or otherwise, merits and seniority are

' both significantly relevant and reservation of such posts in disregard of these two elements will result in invidious discrimination.

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

'-- .I A Akhil BharatiyaSoshit Kannachari Sangh (Railway) v. Union of India & Ors., [1981] 2 SCR 185, is not warranted by the language of the Contitution.

The Constitution does not permit any citizens to be treated unfarily or unequally. To maintain numerical and qualitiative equality and thus ensure adequately effective representation of the backward classes in the services, it is open to the State to make direct appointments at various levels or grades of the service, and make appropriate provisions for reser, / vation in respect of such initial appointments. Once appointed to a post, any further discrimination by reservation in regard to conditions of service including promotion is impermissible. Any deviation from this golden rule of justice and equality is unconstitutional.

Reservation is the extreme limit to which the doctrine of affirmative action can be extended. Beyond the strict confines of clause (4) of Article 16, reservation in public employment has no warrant .in the law for it then becomes the very antithesis of equality. While reservation is inipermissible for appointment to higher posts by promotion from lower posts, any other legitimate affirmative action in favour of disadvantaged classes of citizens by means of valid classification is perfectly in accordance with the mandate of Article 16(1). It is within the discretion of the State to extend to all disadvantaged groups, including any backward class of candidates,· E preferences or concessions such as longer period of minimum time to pass qualifying tests etc. [see N.M. Thomas (supra)].

Reservation ·affords backward classes of citizens a golden oppor- tunity to serve the nation and thus gain security, status, comparative affluence and influence in decision making process. But it is wrong to see F · it as a mere weapon to capture power, as suggested at the bar. In a democracy, real power lies in the ballot and it is exercised by the majority.' Any attempt to project the concept of reservation under clause (4) as a weapon of aggrandisement to gain power will result in the creation of a meaningless myth and a dangerous illusion which will ultimately distort the constitutional values.

It is possible that large segments of population enioying well entrenched political advantages by reason of numerical strength may claim "backward class" status, when, on correct principle, they may not qualify to be so regarded. If such claims were to be conceded on extraneous con- H sideration, motivated by pressures of expediency, and without due regard

INDRA SAWHNEY v. U.0.1. [THOMMEN, J.] 813

to the nature and degree of backwardness, the very evil of discrimination A which is sought to be remedied by the constitution would be in danger of being perpetuated in the reverse at the expense of merit and efficiency and contrary to the interests of the truly backward classes of citizen; who are the constitutionally intended beneficiaries of reservation. In the words of Krishna Iyer, J.:· B ' ".... To lend immortality to the reservation policy is to defeat its raison de'etre; to politicise this provision for c::ommunal support and Party ends is to subvert the solemD"undertak- ing of Art. 16(1) ...... ".

Akhil Bharatiya Soshit Karamchan Sangh (Railway) v. c Union of India & Ors., (1981] 2 SCR 185 at 203.

The sooner the need for reservation' is brought to an end, the better it would be for the nation as a whole. The sooner we redressed all disabilities and wiped out all traces of historical discrimination, and D stopped identifying classes of citizens by the stereotyped, stigmatised and ignominious label of backwardness, the stronger, healthier and better united we would have emerged as a nation founded on diverse customs, practices, religions and languages but knitted together by innumerable binding strands of common culture and tradition. E General Observations:

It is wrong and unwise to see affirmative action merely as a penance or an atonement for the sins of past discrimination. It is not .retributive justice on wrong doers. It is corrective and remedial justice to compensate F the victims of prior injustice. It is not merely focussed on reparation for past inequities. It is a forward looking balancing act of reformative social engineering; an ar_chitecture of a better future of harmonious relationshik amongst all classes of citizens; an equitable redistribution of communitJ · resources with a view to the greatest happiness of the greatest number of people. G

It is true that an important aspect of State interest in initiating affirmative action is to• correct or remedy· the evil effect of inequities stemming from prior discrimination, but the focus in any such action must be on the victims and not on the wrong doers. The .constitutional mandate . H

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

A is to rescue the victims of prior discrimination and not to punish the wrong doers. '.The sins of the past shall not visit upon the present either by allowing its ill effects to continue or by taking retributive action as retaliation upon the wrong doers. The task of nation building is not to open up the wounds of the past, but to allow them to heal by negativing its ill effects and wiping B off injustice stemming from It. Any present or contunuing discrimination is, of course, remediable or punishable under. the law. Removal of inequi- ties is the reison d'etre of any affirmative action\

Discrimination in any form hurts asJhere is an element of deprivation of the legitimate expectations of classes of people upon whom the in- C evitable consequences of any such action must necessarily fall. Any unfair and undue deprivation of any class of people is constitutionally impermis- sible.

Reservation of posts or seats for the benefit of some and to the exclusion of others is inherently unjust, and unfair unless strictly brought within reasonable limits. The only legitimate object of excluding the generality of people and conferring a special benefit upon the chosen classes is to redeem the latter from their backwardness.

Reservation should be avoided except in extreme cases of acute backwardness resulting from prior discrimination as in the case of the Scheduled Castes and the Scheduled Trlbes and other classes of persons in comparable positions. In all other cases, preferential treatment short of reservation can be adopted. Any such action, though in some respects discriminatory, is permissible on the basis of a legitimate classification rationally related to the attainment of equality in all its aspects. F Any attempt to view affirmative action as merely retribnties or to unduly over-emphasise its compensatory aspect and widen the scope of /reservation beyond minority of posts or seats is to practice excessive and 1 invidious reverse discrimination. To project particular castes as legitimate claimants for such compensatory discrimination, without due regard to the nature and degree of their backwardness, is to invite the public wrath of stigmatising prejudice against them, thereby promoting caste hatred and . separatism. Any such stereotyped and stigmatised approach to this soul sea~ching sociological problem is to distort the fairness of the political and constitutional process of adjustment and readjustment amongst classes of people in our country.

INDRA SAWHNEY v. U.0.1. [THOMMEN, J.] 815

Affirmative action is not merely compensatory justice, which it is, but is also distributive justice seeking to ensure that community resources are more equitably and justly shared among all classes of citiznes. Further- more, from the point of view of social utility, affirmative action promotes maximum well-being for the society as a whole and strengthens forces of national integration and general economic prosperity. B Any benign affirmative action with a view to equality amongst classes of citizens is a constitutionally permitted programme, but the weapon of reservation must be carefully and sparingly used in order that, while the victims of past" discrimination are appropriately compensated, the generality of persons striving to progress on their own merits do not C become victims of excessive, unfair and invidious reverse discrimination. Affirmative action must find justification in the removal of disadvantages and not in their impostition. See Tribe, American Constitutional Law, 2nd edn. (1988) pp. 1521-1554; Kathleen M. Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases. Harvard Law Review, Vol. 100, p. 78 (1986-87); Marc Galanter, Competing Equalities, (1984); Myrl L Duncan, D The Future of Affirmative Action: A Jurisprudential/Legal Critique, Harvard Civil Rights Civil Liberties Law Review, Vol. 17, 1982, p. 503; The Rights of Peoples, Edited by James Crawford, Oxford (1988).

Summary:. E (1) It is open to the .State to adopt ·v'atid classification and make special provisions for the protection of classes of citiznes whose compara- tive backwardness the State has a mandate to redress by affirmative action programmes. Any such programme must be strictly tailored to the constitu, tional requirement that no citizens shall be excluded from being considered F

-· on the basis of merits for any public employment except to the extent that a valid reservation has been made in favour of backward classes of citizens.

(2) The Constitution prohibits discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Any discrimination sofoly on any one or more of these prohibited grounds G will result in invidious reverse discrimination which is impermissible. None of these grounds is the sole or the dominaiit or the indispensable criterion to identify backwardness which qualifies for reservation. But each of them is, in conjunction with factors such as poverty, illiteracy, demeaning oc- cupation, malnutrition, physical and intellectual deformity and like disad- H

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

A vantages, a relevant criterion to identify socially and educationally back- ward classes of citizens for whom reservation is intended.

(3) Reservation contemplated under Article 16 is meant exclusively for backward classes of citizens who are not adequately represented in the services under the State. · B {4)·0nly such·classes.of citizens who are socially and educationally backward are qualified to be identified as backward classes. To be accepted as backward classes for the purpose of. reservation under Article 15 or Article 16, their backwardness must have been either recognised by means of C a notification by the ·President under Article 341 or Article 342 declaring them· to be Scheduled Castes and Scheduled Tribes, or; on an objective consideration, identified by the State to be socially and educationally so backward by reason of identified prior discrimination and its continuing ill effects as to be comparable to· the Scheduled Castes or the Scheduled Tribes. D In the case of the Scheduled Castes or the Scheduled Tribes, these conditions are, in view of the· notifications, presumed to be'Satisfied:In the case of the other backward classes-ofcitiznes qualified for reservation, the burden is on the State to show that these classes have been subjected to such discrimina- tion in the past that they are reduced to a state of helplessness, poverty and consequential social and educational backwardness as in the case of the E Scheduled Castes and the Scheduled Tribes. In other words, reservation is. meant exclusively for the Harijans, the Girijans, the Adivasis, the Dalits or other like "depressed" classes or races or tribes most unfortunately referred to in the past as the "untouchables" or the "outcastes" by reason of their being born in what was wrongly regarded as. low easies and associated with what was equally wrongly treated as demeaning occupations, or any other class of citiznes afflicted by like degree of poverty and degradation caused by prior and continuing discrimination and exploitation, whatever be their professed faith, religion or caste. These classes of citizens, segregated in slums and ghettos and afflicted by grinding poverty, disease, ignorance, ill health and backwardness, and haunted by fear and aruri0ty, are the constitutionally intended beneficiaries of reservation, not because of their castes or occupa- tions, which are merely incidental facts of history, but because of their backwardness and disabilities stemming from identified past or continuing inequities and discrimination.

H (5) Members of the Scheduled Castes or the Scheduled Tribes do

INDRA SAWHNEY v. U.0.1. [TIIOMMEN, J.] 817

not lose the benefits of reservation and other affirmative action program- A mes intended for backward classes merely by reason of their conversion from the Hindu or the Sikh or the Buddhist religion to any other religion, and all such persons shall continue to be accorded all such benefits until such time as they cease to be backward.

(6) Identification of backward classes for the purpose of reservation with reference to historical discrimination and its continuing ill effects is, however, subject to the overriding condition that no person whose means exceeded a predetermined economic level should be entitled to the protec- tion of reservation, however backward he may be socially and educationally. He may, however, be considered for the benefits of other affirmative action programmes, but in doing so his comparative affluence in relation to other backward class candidates may be a relevant consideration to exclude him.