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THE CONSTITUTION OF INDIA SOCIAL AND


ECONOMIC JUSTICE:


PROLOGUE:
It is very thoughtful of the Karnataka Law University to
have chosen the topic The Constitution of India Social
and Economic Justice as the subject for the First Havanur
Endowment Lecture. The choice of the subject is very
appropriate; late Shri Havanur was a great champion of
social justice who fought for social equality and economic
justice for the disadvantaged and marginalized sections of
the society. The relevance of the topic assumes greater
significance because of the presence of Honble
Dr.Veerappa Moily, Union Minister for Corporate Affairs, as
the President of todays function, himself a great champion
of social justice. The subject also compels introspective
searchings.
It is interesting to notice how the concept of social justice had
evolved. The ultimate function of law is the realization of justice.
The term justice defies clear cut definition: in different countries
in different ages depending upon the existing social
environment the content and scope of justice varied. In the
distant past, slave trade, freedom of contract on most
exploitative terms and sanctity of private property found
justification in the name of law and justice. The noted jurist
C.K.Allen describes the situation:
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Abominable injustices have been done in the name of justice
even as terrible oppressions have been done in the name of
liberty, because when men sink to the lowest they clutch for
excuse at the highest
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.
In the Nineteenth century the concept of justice had
taken a new meaning: individual rights, freedom of contract,
unlimited right to private profit making were all approved in the
name of justice. In the twentieth century the emphasis was
shifted from individualism to communitarianism.
In the twentieth century the term justice is
understood as connoting distributive idea and the legal system
is intended to realize that objective. From a narrow point of view
legal justice deals with rights of the state to define crimes and
prescribe punishments besides regulating the civil rights and
obligations of individuals and the procedure for enforcing the
same. On the other hand social justice concerns with the
distribution of benefits and burdens throughout the society
entitling every member of the society to enjoy the same level of
well being as every other
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.
The well known concept of equality of opportunity
received a wider meaning viewed in the background of social
justice thus implying equal opportunities for all without
discrimination, obstacles or disabilities of any kind. Unequal
capacities which are the consequences of social and economic
inequalities should not impede or prevent people from availing
of opportunities for their well being.
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Exclusion of formal equality and introduction of factual
inequality is what social justice mandates. Realization of social
justice compels alteration of the basic structure of the society
by ushering in a new legal order to harmonize the conflicting
interests of different sections. Differential treatment accorded
by law to further social justice cannot be termed discriminatory
since the welfare of the society as a whole is the basis for the
differential measures. Welfare of the whole ensures the welfare
of the parts.
Social justice thus broadly incorporates economic justice
also. In the Indian context social justice assumes new
significance. It bears no analogy to the meaning ascribed to it in
the western societies. The stratification of the Hindu society
based upon institutionalized hierarchical social inequalities
makes the upward movement of the lower castes impossible.
The division of society into Brahmanas, Kshatriyas, Vaishyas
and Sudras has divided the society vertically. The rigidity of the
caste system had sealed the mobility of people from one caste
to another. Below the fourfold division of the Hindu society
there is a large class of people known as Panchamas subjected
to the degraded practice of untouchability. There are other
sections leading nomadic lives untouched by civilization;
social evolution has not reached them. The original inhabitants
of this country, the Adivasis are now commonly known as the
Scheduled Tribes.
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The abominable practices in the Hindu society had
permanently deprived basic human rights to a vast majority.
Economic development of the lower castes was an impossibility
because of the entrenched social inequalities. Even right to
worship in temples depended upon birth factor which was
judicially recognized in 1907
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. Different legal principles came to
be evolved in the administration of civil and criminal justice to
members of different castes.

How Social and Economic Justice became integral to
the Constitution:

Let me recount the history as to how the Social and
Economic justice became an inalienable part of our
Constitution. Sir B.N.Rau, the Adviser to the Constituent
Assembly had prepared a rough draft which formed the
basis for discussion by the Drafting Committee of the
Constitution. The Constituent Assembly met on 9th
December, 1946 in the undivided India, took up for
consideration the draft Constitution prepared by
the Drafting Committee on 15th November, 1948 and
concluded the discussion on October 17, 1949. Thereafter
appropriate re-numbering of the Articles was done by the
Drafting Committee and the revised Constitution was
adopted by the Constituent Assembly on 26th November,
1949 and our Country emerged as the Republic on 26th
January, 1950. In the preamble part of the Constitution as
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finally adopted by the Constituent Assembly, the words
Justice, Social and Economic occur. The preamble reads:

We, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a Sovereign,
Democratic Republic and to secure to all its citizens:
Justice, social, economic and political;
Liberty of thought, expression, belief, faith and
worship;
Equality of status and of opportunity;
And to promote among them all
Fraternity assuring the dignity of the individual and
the unity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this Twenty Sixth
Day of November, 1949, do HEREBY ADOPT, ENACT
AND GIVE TO OURSELVES THIS CONSTITUTION.

On the eve of the meeting of the Constituent Assembly, the
Indian National Congress passed a resolution on November
20, 1946 declaring among other things that
It stands for an independent sovereign republic
wherein all powers and authority are derived from the
people, and for a Constitution wherein social
objectives are laid down to promote freedom,
progress and equal opportunity for all the People of
India...
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(B.Shiva Rao: The Framing of Indian Constitution Vol. I
page 342)
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.

It is therefore clear that Social and Economic Justice
would form the foundations of the Constitution was
indicated even before the Constituent Assembly began its
work.

While introducing the Objectives Resolution in the
Constituent Assembly Pandit Jawaharlal Nehru said in
emphatic terms:

we have given the content of democracy in this
Resolution and not only the content of democracy but the
content, if I may say so of economic democracy in this
Resolution.

Clarifying the position for not mentioning the word socialism in
the Resolution:

well, I stand for socialism and I hope India will stand for
socialism and that India will go towards the constitution of
a socialist State and I do believe that the whole world will
have to go that way. What form of socialism again is
another matter for your consideration but the main thing
is that in such a Resolution, if, in accordance with my own
desire, I had put in, that we want a socialist state, we
would have put in something which may be agreeable to
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many and may not be agreeable to some and we wanted
this Resolution not to be controversial in regard to such
matters. Therefore we have laid down, not theoretical
words and formulae, but rather the content of the thing we
desire. This is important and I take it there can be no
dispute about it.

(Constituent Assembly Debates, Volume I, page 62)
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.


The doubt expressed by Pandit Jawaharlal Nehru that there
might not be unanimity to make India a socialist state proved to
be unfounded. Despite the absence of the word socialist,
Pandit Nehru himself admitted that the content of socialism was
incorporated in the Objectives Resolution
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.
Participating in the debate Dr. Ambedkar who later on
became the Chairman of the Drafting Committee had foreseen
the difficulties in theoretical declarations unaccompanied by the
methods to achieve the same. In other words rights conferred
without remedies to achieve them would be of no use,
Dr.Ambedkar thought at that time. In his own words:-
Sir, there are here certain provisions which speak of
justice, economic, social and political. If this Resolution
has a reality behind it and sincerity, of which I have not
the least doubt, coming as it does from the mover of the
resolution, I should have expected some provision
whereby it would have been possible for the State to
make economic, social and political justice a reality and I
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should have from that point of view expected the
Resolution to state in most explicit terms that in order
there may be social and economic justice in the country,
that there would be nationalization of industry and
nationalization of land, I do not understand how it could
be, possible for any future Government which believes in
doing justice socially, economically and politically, unless
its economy is a socialist economy. Therefore, personally,
although I have no objection to the enunciation of these
propositions, the resolution is, to my mind, somewhat
disappointing.

(Constituent Assembly Debates, Volume I, page 100)
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Shri Jaipal Singh leader of the Adivasis, participating in the
debate poignantly described the plight of his people, the original
natives of this country, who had been driven out from Indus
valley and condemned as jungalies. Shri Jaipal Singh on behalf
of thirty million Adivasis reposed faith in Pandit Jawaharlal
Nehrus Objectives Resolution and what all he demanded was
that his people who had been neglected for over six thousand
years should be treated as equals with other Indians.
I am convinced that not only the mover of this resolution,
Pandit Jawaharlal Nehru, but everyone here will deal with
us justly. It is only by dealing justly and not by a
proclamation of empty words that we would be able to
shape a Constitution which would mean a real freedom.
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(Constituent Assembly Debates, Volume I, page 144-145)
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.

In his speech winding up the debate Pandit Nehru clearly spelt
out the task of the Constituent Assembly:
The first task of this Assembly is to free India through a
new Constitution to feed the starving people and clothe
the naked masses and to give every Indian fullest
opportunity to develop himself according to his capacity.
This is certainly a great task.

(Constituent Assembly Debates, Volume I, page 316)
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.


The Objectives Resolution was passed unanimously by
the Constituent Assembly on 22-1-1947: paras 4, 5 and 6
which are relevant read as follows:-

(4) wherein all power and authority of the Sovereign
Independent India, its constitutional parts and organs
of government, are derived from the People; and

(5) wherein shall be guaranteed and secured to all the
People of India, Justice, Social, Economic and Political;
equality of status of opportunity, and before the law:
freedom of thought, expression, belief, faith, worship,
vocation, association and action, subject to law and
public morality; and

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(6) wherein adequate safeguards shall be provided for
minorities, backward and tribal areas, and depressed
and other backward classes; and (emphasis
added)

(B.Shiva Rao: The Framing of Indian Constitution Vol. II
page 4)
10
.


The discussion on the preamble part of the
Constitution was taken up at the end after all the clauses of
the Constitution were discussed and finalized. The preamble
should be in conformity with the Constitution as adopted by
the Constituent Assembly was the convincing reason stated
by the President of the Constituent Assembly. (B.Shiva
Rao: The Framing of Indian Constitution Vol. V page
130)
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.

Rejection of the Twist:
The debate on the preamble unfolded a very
interesting aspect. Shri H.V.Kamath, a renowned Socialist,
and a leading member of the Constituent Assembly moved
an amendment to the preamble to the effect that the first
sentence of the preamble should read:

In the name of God, We the People of India having
solemnly resolved to constitute India into a sovereign
democratic republic and to secure to all her
citizens..
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(The Constituent Assembly Debates Vol. X page 439)
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.

Shri Kamath wanted that

the Constitution should be consecrated by a solemnly
dedication to God in the spirit of the Geetha.

The amendment was supported by a few and opposed by
many. Shri M.Thirumala Rao opposing the amendment had
pleaded that

God should not be subjected to the vote of the
House.
Pandit H.N.Kunzru while opposing the amendment said
that-

Sacred feeling should not have been brought into the
array of discussion. The proposed amendment was
inconsistent with the preamble which promises liberty
of thought, expression, belief, faith and worship to
everyone.

Thereafter Shri Kamath pressed for a vote and the
amendment was negatived by 41 against 68. Reacting to
this, Shri Kamath said

This, Friday, is a black day in our annals. God save
India.

(The Constituent Assembly Debates Vol. X page 442)
13.
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The socio economic justice as visualized by the Indian
Constitution is found mostly in the Directive Principles of
State Policy Part IV of the Constitution of India and to a
little extent in the Chapter on Fundamental Rights and
certain other provisions of the Constitution. Sir B.N.Rau
whose draft Constitution based upon the 1935 Government
of India Act was responsible for the Chapter on Directive
Principles, the concept and details of which were borrowed
from the Irish Constitution. The International Bill of Rights
of Man prepared by Prof. Lauterpacht, a Judge of the
International Court of Justice also was a source for the
Directive Principles. Sir B.N.Rau was very much impressed
by the classification of rights into enforceable and
unenforceable as stated by Judge Lauterpacht. The draft
prepared by Sir B.N.Rau was in two parts Part A dealing
with principles intended for the general guidance of the
appropriate legislatures and governments in India and
shall not be cognizable by any Courts. What now
attained finality as Directive Principles on State Policy
mostly are traceable to the aforesaid Part A. Justiciable
rights which are enforceable through Courts of law were
included by Sir B.N.Rau in Part B and in their final form
they emerged as Fundamental Rights in Part III of the
Constitution of India.
The following are the seven clauses in Part A of the draft
prepared by Sir B.N.Rau:
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1. The State shall promote international peace and
security by the elimination of war as an instrument of
national policy, by the prescription of open, just and
honourable relations between nations, by the firm
establishment of the understanding of international
law as the actual rule of conduct among governments
and by the maintenance of justice and the scrupulous
respect for treaty obligations in the dealings of
organized people with one another.
2. The State shall promote internal peace and
security by the elimination of every cause of
communal discord.
3. The State shall, as far as possible, secure to each
citizen;
(1) the right to work;
(2) the right to education;
(3) the right to maintenance in old age and during
sick ness or loss of capacity to work,
(4) the right to rest and leisure;
in particular, the State shall make provision for free
and compulsory primary education.
4. The State shall promote with special care the
educational and economic interests of the weaker
sections of the people and, in particular, of the
scheduled castes and the aboriginal tribes, and shall
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protect them from social injustice and all form of
exploitation.
5. The State shall protect the culture, language and
script of the various communities and linguistic areas
in India.
6. The State shall regard the raising of the level of
nutrition and the standard of living of its people and
the improvement of public health as among its
primary duties.
7. The State shall ensure that the strength and health
of workers, men and women, and the tender age of
children shall not be abused and that they shall not be
forced by economic necessity to take up occupations
unsuited to their sex, age or strength.

The first clause was taken from the declaration of Havana
made in 1939. The second, fourth and fifth clauses are
peculiarly needed in India. The third clause was borrowed
mostly from Articles 42 and 45 of the Irish Constitution.
(Indias Constitution in the making by Sir B.N.Rau, pages
250-251)
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.

The Sub Committee on Fundamental Rights headed by
Shri J.B.Kirpalani discussed the Directive Principles along
with certain other articles between 27-2-1947 and
31-3-1947. The report of the Sub Committee was
submitted on 16-4-1947 to Sardar Vallabhai Patel,
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Chairman of the Advisory Committee. Unenforceable rights
which subsequently renamed as Directive Principles are
found in Part II of the Annexure to the report of the Sub
Committee. Both the enforceable and unenforceable rights
were clubbed together under the heading Fundamental
Rights. Clauses 33 to 45 comprising Part II contain this
unenforceable rights reflecting the future economic and
social democracy of the Country. The report of the Sub
Committee as finalized by the drafting committee was
discussed and finalized by the Constituent Assembly. The
object of incorporating Directive Principles in the
Constitution was explained with telling effect by
Dr.Ambedkar in the Constituent Assembly at the time of
discussion:

We do not want merely to lay down a mechanism to
enable people to come and capture power. The
Constitution also wishes to lay down an ideal before
those who would be forming the Government. That
ideal is economic democracy, whereby, so far as I am
concerned, I understand to mean, one man one vote.
The question is: Have we got any fixed idea as to
how we should bring about economic democracy?
There are various ways in which people believe that
economic democracy can be brought about; there are
those who believe in individualism as the best form of
economic democracy, there are those who believe in
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having a socialistic state as the best form of economic
democracy; there are those who believe in the
communistic idea as the most perfect form of
economic democracy.
Now, having regard to the fact that there are
various ways by which economic democracy may be
brought about, we have deliberately introduced in the
language that we have used, in the directive
principles, something which is not fixed or rigid. We
have left enough room for people of different ways of
thinking, with regard to the reaching of the ideal of
economic democracy, to strive in their own way, to
persuade the electorate that it is the best way of
reaching economic democracy, the fullest opportunity
to act in the way in which they want to act.
Sir, that is the reason why the language of the
Articles in Part IV is left in the manner in which this
Drafting Committee thought it best to leave it. It is
no use giving a fixed, rigid form to something which is
not rigid, which is fundamentally changing and must,
having regard to the circumstances and the times,
keep on changing. It is, therefore, no use saying that
the directive principles have no value. In my
judgment, the directive principles have a great value,
for they lay down that our ideal is economic
democracy. Because we did not want merely a
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parliamentary form of Government to be instituted
through the various mechanisms provided in the
Constitution, without any direction as to what our
economic ideal, as to what our social order ought to
be, we deliberately included the Directive Principles in
our Constitution. (emphasis added)

(Constituent Assembly Debates Vol.No.VII page 494)
15
.

The binding nature of the Directive Principles which
are in the nature of Instruments of Instructions (to the
Legislature and Executive) under the Government of India
Act, 1935 was explained by Dr.Ambedkar in the Constituent
Assembly while stating that Ireland is the only Country
which incorporated in its Constitution directives to the
State.

The inclusion of such instructions in a Constitution
such as is proposed in the Draft becomes justifiable
for another reason. The Draft Constitution as framed
only provides a machinery for the government of the
country. It is not a contrivance to instal any particular
party in power as has been done in some countries.
Who should be in power is left to be determined by
the people, as it must be, if the system is to satisfy
the tests of democracy. But whoever captures power
will not be free to do what he likes with it. In the
exercise of it, he will have to respect these
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instruments of instructions which are called Directive
Principles. He cannot ignore them. He may not have
to answer for their breach in a Court of Law. But he
will certainly have to answer for them before the
electorate at election time. What great value these
directive principles possess will be realized better
when the forces of right contrive to capture power.
(emphasis added)

(Constituent Assembly Debates Vol.No.VII page 41)
16.


The significance of expression Directives was also
explained by Dr.Ambedkar:

With regard to the word directive I think it is
necessary and important that the word should be
retained because it is to be understood that in
enacting this part of the constitution the Constituent
Assembly, as I said, is giving certain directions to the
future legislature and the future executive to show in
what manner they are to exercise the legislative and
the executive power which they will have. If the word
directive is omitted I am afraid the intention of the
Constituent Assembly in enacting this part will fail in
its purpose. Surely, as some have said, it is not the
intention of this Assembly that in future both the
legislature and the executive should not merely pay lip
service to these principles enacted in this part, but
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that they should be made the basis of all executive
and legislative action that may be taken hereafter in
the matter of the governance of the country. I
therefore submit that both the words fundamental
and directive are necessary and should be retained.

(Constituent Assembly Debates Vol.VII page 476)
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.

The Directive Principles though not justiciable the
courts have always treated the same as aids to statutory
interpretation in the context of interpretation of social and
economic justice by Legislation. In the interpretation of Gratuity
Act Directive Principle was invoked by Courts as affording
guidance to statutory construction. The latest ruling in this
regard is Allahabad Bank and Anr. Vs All India Allahabad Bank
Retired Employees Association
18
.

Our Constitution incorporates the principles of social justice
besides the preamble in parts III, IV X,XVI, Schedule V and VI
(in particular Articles 14,15(4),15(5), 16(4),16(4 A),16
(4B),17,19,23,24,38,39,40,46, 330,332 and 334,335 to 342.
Articles 14 to 16 incorporate principles of equality and non
discrimination while at the same time they also comprehend
affirmative action in clauses (4) and (5) of Article 15 and
clauses 4,4A and 4B of Article 16. By Article 17 the abominable
and degraded practice of untouchability was abolished and
untouchability practiced in any form was made penal offence.
20
Articles 23 and 24 relate to right against exploitation and
prohibition of forced labour and employment of children in
factories. Articles 38 to 48 forming part of directive principles
embodied in Part IV incorporate the principles for socio
economic transformation of the society. Special mention has to
be made in respect of Article 46 directing the state to promote
the educational and economic interests of weaker sections and
in particular Scheduled Castes, Scheduled Tribes and other
Backward Classes. Articles 330, 332 relate to reservation of
seats in Lok Sabha and Legislative Assembalies in favour of
Scheduled Castes and Scheduled Tribes in Lok Sabha and
Legislative Assemblies of the State and seats so reserved are
in proportion to their population. Article 335 recognises the
claims of the members of Scheduled Castes and Scheduled
Tribes for appointment to services and posts in the Union and
the States consistent with the maintenance of efficiency in
administration. By the Constitution (82
nd
Amendment) Act 2000
the state is empowered to relax qualifying marks in any
examination or lowering of standards of evaluation in matters of
promotion concerning Scheduled Castes and Scheduled
Tribes. By the Constitution 65
th
Amendment Act, Article 338
was amended by which in the place of the Special Officer for
the Scheduled Castes and Scheduled Tribes, a National
Commission was established to investigate and monitor all
matters relating to the safeguards provided for these classes, to
enquire into specific complaints with regard to deprivation of
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rights and safeguards, to render advice on the planning process
of their socio economic development and to evaluate the
progress achieved. The report submitted by the Commission to
the President shall be laid before both the Houses of
Parliament alongwith a memorandum explaining the action
taken or proposed to be taken and the reasons for non-
acceptance if any, of the recommendations. Articles 341 and
342 empower the President to issue notifications specifying
Scheduled Castes and Scheduled Tribes.

The Constitutional safeguards cover a
wide spectrum- from abolition of untouchability to reservations
in educational institutions, posts in public services, seats in law
making bodies- both at the State and the National levels,
appointment of a Commission to oversee the implementation of
the constitutional safeguards and to investigate their conditions
and a special procedure for administration of tribal areas.
Special laws were enacted for abolition of bonded labour,
protection of civil rights, curbing atrocities on members of
Scheduled Castes and Scheduled Tribes and liberating them
from the clutches of money lenders. Several administrative
measures were also initiated for improving their economic lot
19
.
Clause (b) of Article 39 lays down that the
policy of the State should be directed towards securing that the
ownership and control of material resources of the community
are so distributed as best to sub serve the common good, and
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clause ( c) obligates that the economic system should not result
in the concentration of wealth and means of production to the
common detriment. Adverting to this aspect a seven judge
bench of the Supreme Court in State of Karnataka Vs
Ranganatha Reddy & Anr
20
in the context of the nationalisation
of motor transport business ruled that Article 39 (b) takes within
its ambit nationalisation. The court rejected the argument that
the private resources are not covered by Article 39(b); on the
other hand all private means of production the court held fall
within the ambit of Article 39(b). Interpreting the word
distribute in Article 39(b) the court held that nationalisation
has nexus with distribution. The courts conclusion is that Part
IV of the Constitution especially Article 39(b) and 39(c) is a
futuristic mandate to the State with a message of
transformation of the economic and social order.
The Parliament in order to give primacy to the
Directive Principles had enacted the Constitution (Twenty Fifth
Amendment) Act by which Article 31C was inserted as a
consequence of which any law made by the State for
distribution of material resources of the community {Article 39
(b)} and for the prevention of concentration of wealth {Article 39
(c)} was insulated from challenge on the ground of breach of
Articles 14 and 19. Article 39C also lays down that any law
which contains a declaration that it was enacted for giving
effect to the State policy contained in Article 39(b) or Article
39(c) shall not be questioned in any court on the ground that it
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does not give effect to such a policy. This part of Article 31C
prohibiting enquiry by any court was declared invalid in
Keshavananda Bharati case(AIR 1973 SC 1461). For our
purpose it is relevant to notice that while stating illustratively
what constitute the basic structure which is beyond the power
of amendment. Justice Jagmohan Reddy mentioned among
other things Justice, social, economic and political. No
contrary view was expressed by the other judges. It is a well
accepted principle of interpretation, that when separate but
concurrent judgments are rendered, the view expressed in each
of the separate judgments must be treated as the concurrent
view of the majority. We can therefore undoubtedly assume that
economic and social justice are permanent basic features of the
Constitution which cannot be amended by Parliament either in
exercise of its legislative or constituent power.

By clause (1) of Article 341 the President is empowered
to specify the castes, races or tribes or groups which for the
purpose of the Constitution shall be deemed to be Scheduled
Castes in relation to the Union Territory or the State as the
case may be. There is no All India List of Scheduled Castes
and Article 341(1) contemplates separate list for each State and
the Union Territories. The Presidential notification issued under
clause (1) cannot be amended except by a law made by
Parliament under clause (2) of Article 341. Similar provisions
are there in respect of Scheduled Tribe in Article 342. Because
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of these safeguards, clauses (24) and (25) of Article 366 which
deal with definitions, merely refer to Article 341 and 342 to
indicate what are Scheduled Castes and Scheduled Tribes. The
Government of India Act 1935 contained provisions for
reservation of seats in favour of Scheduled Castes, Backward
areas and Backward Tribes (Section 61 and Schedule V of the
Government of India Act,1935). For giving effect to this the
Government of India (Scheduled Castes) Order 1936 was
issued by which certain groups which were subjected to the
inhuman and degraded practice of untouchability were included
in that Order. Untouchability was the primary factor for inclusion
in the 1936 Order. This was basically reflected in 1950 in the
form of the Constitution(Scheduled Castes) Order 1950. In its
original form clause (3) of the above Order contemplated that
only classes and groups belonging to Hindu religion subjected
to untouchability should be included in the Scheduled Castes
Order. Subsequently by an amendment in 1956 persons
belonging to Sikh and Buddhist religions also were made
eligible for being treated as members of Scheduled Castes,
obviously for the reason that they still suffer untouchability even
after their conversion into these religions. Now demands are
made by communities like Dalit Christians and Dalit Muslims
for inclusion in the Scheduled Castes Order advancing the
argument that they are still subjected to untouchability. The
matter is pending adjudication in the Supreme Court. An
empirical realistic view is needed to decide whether
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untouchability which was suffered by Dalits in Hindu religion is
prevalent in Christianity and Islam which are founded upon
social equality.
Religion has no relevance so far as identification of
Scheduled tribes are concerned. Scheduled Tribes are not
castes in the customary sense. In order to give effect to the
provisions of Government of India Act, 1935 relating to special
electoral representation to Backward Tribes in the Provincial
Legislative Assemblies the Government of India issued an
Order listing the Backward Tribes.

Determination of the claimed status:
Reservation of seats in Lok Sabha and Legislative
Assemblies in favour of Scheduled Castes and Scheduled
Tribes is in proportion to their population (Article 330-332).
There is plethora of case law relating to conversions and the
loss of status for claiming the benefits conferred on members of
Scheduled Castes and Scheduled Tribes. In order to find out
whether or not a particular caste is Scheduled Caste within the
meaning of Article 341 the decisive factor is the notification
issued by the President of India in that behalf. It is not open to a
person to lead evidence that although he does not belong to a
listed Scheduled Caste but the caste to which he belongs also
has similar characteristics of another listed class or it is its
synonymn. See: Bhaiyalal Vs Harilal
21
Parasaram Vs
Shivchand
22
. Conversion operates as an expulsion from the
26
caste. If a member of a Scheduled Caste converts to
Christianity he loses his caste he doesnt belong to any caste.
See: Rajgopal Vs Armugam
23
.
Recognition received by a person from the
members of the caste into which he was admitted is the real
test for determining his caste status. Even if a person belonging
to a Scheduled Tribe declares himself to be a member of a
higher caste about which there is no evidence of the higher
caste acknowledging him as one of its members still, he would
remain a member of Scheduled Tribe and so eligible to contest
for a reserved seat. See: V.V.Giri Vs D.Suri Dora
24

When a woman belonging to Christian religion
married a tribal and the marriage was approved by the tribal
community which accepted it as its member, the Supreme
Court held that she is entitled to contest from a seat reserved
for Scheduled Tribes. See: Horo Vs Jahanara Jaipal, Singh
25


Reservations for Admissions in Educational Institutions
and Appointments to Posts under the Government:
One aspect of social justice is by providing reservations in
educational institutions and jobs in public employment in favour
of backward classes. The term backward classes encompasses
Scheduled Castes, Scheduled Tribes and other Backward
Classes.
At the time when the Constitution was enacted there was no
difficulty in identifying scheduled castes and scheduled tribes
27
but other backward classes were not identified in many States.
Reservations in favour of the other backward classes were in
force in some of the southern states but hardly in any of the
northern states. When special care was taken by enacting
Article 338 for appointment of a special officer to safeguard the
interests of scheduled castes and scheduled tribes as the other
backward classes were not identified, the responsibility of
taking care of their interests was entrusted to the Commission
for Scheduled Castes and Scheduled Tribes. Article 340 which
was in the original Constitution envisages the appointment of
Commission by the President of India:
to investigate the conditions of socially and educationally
backward classes within the territory of India and difficulties in
which they labour and to make recommendations for removing
their difficulties and improve their conditions of living and the
financial aid to be given by the Union and States. After the
Mandal Commission, appointed under Article 340, made its
recommendations which in substance were held to be valid in
Indra Sawhneys case, there is a compelling necessity to
appoint a separate commission for safeguarding the interests of
socially and educationally backward classes. But paradoxically
inspite of constituting a National Commission for Backward
Classes by a parliamentary enactment, the responsibility of
safeguarding the interests of other backward classes was not
entrusted to that Commission. The National Commission for
Scheduled Castes which was entrusted with the responsibility
28
of protecting the interests of Backward classes by virtue of
Article 338(10) is not in a position to discharge its responsibility
for a variety of reasons. In fact it has expressed its
unwillingness in this regard and suggested that the National
Commission for Backward Classes should be asked to take
over this responsibility. For reasons not discernible, the Union
of India has not taken up this important issue which concerns
55% of the total population of this country.
It is significant to notice that when backward classes are
referred to as socially and educationally backward classes in
Article 340(1) whether the expression backward class of
citizens used in Article 16(4) only means socially and
educationally backward classes or it includes other classes
also? The Supreme Court had taken a slightly different stand
on this question in Indra Sawhney case. Justice Jeevan Reddy
who spoke for the majority drew a line of distinction between
Article 16(4) and 15(4) by observing that certain classes which
may not qualify for Article 15(4) may qualify for Article 16(4).
This view appears to be unrealistic Article 15(4) covers socially
and educationally backward classes as well as Scheduled
castes and Scheduled Tribes. Article 340 (1) envisages
separate presidential commission for socially and educationally
backward classes who are specifically covered by Article 15(4)
as there are separate provisions in this regard for Scheduled
Castes and Scheduled Tribess. The expression backward
class in Article 16(4) covers a vide range comprehending
29
Scheduled Castes, Scheduled Tribes and Socially and
Educationally Backward Classes. This was made clear in the
Constituent Assembly by Shri K.M.Munshi, a member of the
Drafting Committee while clarifying the doubt expressed by
some whether backward classes include Scheduled Castes
also. He said:
I cannot also imagine a time when there is any backward class
in India which does not include the Scheduled
Caste..There need, therefore, be no fear that the house, as
constituted at present or hereafter, will ever make a distinction
or discriminate against the Scheduled Castes. That fear, I think,
is entirely unfounded..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 of people 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
26
.
Apart from Scheduled Castes, Scheduled Tribes and Socially
and Educationally Backward Classes covered by Article 15(4) it
is well-nigh impossible to conceive of any other class of people
who could be called backward class falling within the ambit of
Article 16(4).
Article 15 (1) incorporates the principle of non discrimination. It
prohibits discrimination on grounds of religion, race, caste, sex
or any of them. Article 16 (1) guarantees equality of opportunity
30
in matters of public employment. Clause (4) of Article 16
confers power on the State to make provision for reservation of
appointments in favour of any backward class of citizens which
in the opinion of State is not adequately represented in the
services under the State. What is noteworthy is that when
specific provision was made in clause (4) of Article 16 in the
original Constitution providing for reservation in appointments in
favour of backward classes, no similar provision was
incorporated for admission to educational institutions. This
omission was brought to light when the Supreme Court ruled in
State of Madras Vs Champkam Dorairajan
27
. An order of the
Government of Madras commonly referred to as Communal
G.O. reserving seats to persons of different communities was
declared as unconstitutional being violative of Article 15(1). The
attempt of the State to sustain its legality on the basis of the
Directive Principle in Article 46 enjoining the State to promote
the educational and economic interests of Scheduled Castes
and Scheduled Tribes and Other Backward Classes did not
succeed. A necessity therefore had arisen to incorporate a
special provision dealing with reservations in educational
institutions.
Clause (4) of Article 15 was inserted by the Constitution
First Amendment Act in 1951 conferring power on the State to
make special provision
for the advancement of any social and educationally Backward
Classes of citizens or Scheduled Castes and Scheduled Tribes
31
notwithstanding the embargo of non discrimination contained in
Article 15 or the prohibition contained in clause (2) of Article 29
by which no citizen shall be denied admission into educational
institutions maintained by the State or receiving State aid on
grounds only of religion, race, caste, language or any of them.
The communal G.O of the erstwhile Madras Presidency
had distributed the posts to several classes of people by the
following method:-
Harijans 19
Muslims 5
Christians 6
Backward Hindus 10
Non Brahmin Hindus 32
Brahmins 11
In relation to posts in judicial service the constitutionality of the
aforesaid communal G.O came up for consideration before the
Supreme Court in Venkataramana Vs State of Madras
28
. The
Petitioner belonging to Brahmin caste, an unsuccessful
candidate for appointment to the post of District Munsif
contended that as only eleven posts are reserved for Brahmins
his Fundamental Right under Article 16(1) was violated as he
was denied consideration for the other posts in excess of
eleven, only on the basis of his caste. The Supreme Court
upheld the contention and struck down the communal G.O. The
reasoning of the Supreme Court which spoke through Justice
S.R.Das (as he then was) needs careful notice. The Supreme
32
Court accepted reservation in favour of backward Class of
citizens (Harijans and Backward Hindus) but found fault only
with regard to reservation in favour of other classes.
As regards the posts reserved for Harijans and Backward
Hindus, it may be said that the petitioner, who does not belong
to those two classes, is regarded as ineligible for those
reserved posts not on the ground of religion, race, caste, etc.,
but because of the necessity for making a provision for
reservation of such posts in favour of a backward class of
citizens, but the ineligibility of the petitioner for any of the posts
reserved for communities other then Harijans and Backward
Hindus cannot but be regarded as founded on the ground only
of his being a Brahmin. For instance, the petitioner may be far
better qualified than a Muslim or a Christian or a non-Brahmin
candidate and if all the posts reserved for those communities
were open to him, he would be eligible for appointment, as is
conceded by the learned Advocate-General of Madras, but
nevertheless, he cannot expect to get any of those posts re-
served for those different categories only because he happens
to be a Brahmin. His ineligibility for any of the posts reserved
for the other communities, although he may have far better
qualifications than those possessed by members falling within
those categories, is brought about only because he is a
Brahmin and does not belong to any of those categories. This
ineligibility created by the communal G.O., does not appear to
us to be sanctioned by clause (4) of Article 16 and it is an
33
infringement of the fundamental right guaranteed to the
petitioner as an individual citizen under Article 16 (1) and (2).
The communal G.O., in our opinion is repugnant to the
provisions of Article 16 and is as such void and illegal.
A Backward Class is synonymous to Backward Caste was
declared by Dr.Ambedkar while moving the Constitution First
Amendment Bill in Parliament in 1951. The same Constituent
Assembly which enacted the Constitution continued to function
as Parliament till 1952 when General Elections were held to
both houses of Parliament. Dr.Ambedkars speech clearly
brings out:
(1) A Backward Class is nothing but a Backward Caste.
(2) An obligation is cast upon the State under Article 46 to
promote the welfare of the weaker sections.
(3) The weaker sections are Backward Classes and others
who for the moment are not able to stand on their legs
the Scheduled Castes and Scheduled Tribes.
Every Hindu has a caste - he is either a Brahmin or a
Maratha or a Kundby or a Kumbhar or a Carpenter. There
is no Hindu-that is the fundamental proposition-who has
not a caste. Consequently, if you make a reservation in
favour of what are called Backward Classes which are
nothing else but a collection of certain castes, those who
are excluded are persons who belong to certain castes.
Therefore, in the circumstances of this country, it is
34
impossible to avoid reservation without excluding some
people who have got a caste. On these points, I do not
think personally that the judgment is a very satisfactory
judgment.Now the point has to be borne in mind that in
Article 46 of the Directive Principles, an obligation has
been laid upon the Government to do everything possible
in order to promote the welfare and in the interest of what
are called the weaker sections of the public by which I
understand to mean the Backward Classes or such other
classes who are for the moment not able to stand on their
legs - the Scheduled Castes and the Scheduled Tribes. It
is, therefore, incumbent not merely on the Government but
upon this Parliament to do everything in its hands to see
that Article 46 is fulfilled and if that fulfilment is to come. I
cannot see how one can escape an amendment so as to
prevent Article 29 clause (2) and Article 16 clause (4) being
interpreted in the way in which it has been interpreted and
being made to block the advancement of the people who
are spoken of as the weaker class. That is the necessity for
amending Article 15.

By the Constitution (Ninety Third Amendment) Act 2005 state is
empowered to make special provision for advancement of
socially and educationally backward classes, Scheduled Castes
and Scheduled Tribes providing for admission to educational
institutions including private educational institutions whether
35
aided or unaided by the State. This is very significant step in
the direction of ensuring social justice. Prestigious educational
institutions like Indian Institute of Technology (I.I.Ts) and Indian
Institute of Management (I.I.Ms) averse from the beginning to
earmark seats to students belonging to Scheduled Castes,
Scheduled Tribes and Other Backward Classes taking a rigid
stand that dilution of standards at the admission stage would
result in erosion of merit. The constitutionality of Ninety Third
Amendment was upheld by the Supreme Court in Ashok Kumar
Thakur Vs Union of India
29
. The majority judgment recognizes
the fact that higher education results in obliteration of social
backwardness which ultimately would result in elimination of
caste differences. The Ninety Third Amendment which is
conceived of as an affirmative action does not infringe the
principles of equality nor does it violate the basic structure of
the Constitution.
In the opinion of Chief Justice Balakrishnan:
Reservation is one of the many tools that are used to preserve
and promote the essence of equality, so that disadvantaged
groups can be brought to the forefront of civil life. It is also the
duty of the State to promote positive measures to remove
barriers of inequality and enable diverse communities to enjoy
the freedoms and share the benefits guaranteed by the
Constitution. In the context of education, any measure that
promotes the sharing of knowledge, information and ideas, and
encourages and improves learning, among Indias vastly
36
diverse classes deserves encouragement. To cope with the
modern world and its complexities and turbulent problem,
education is a must and cannot remain cloistered for the benefit
of a privileged few. Reservations provide that extra advantage
to those persons who, without such support, can forever only
dream of university education, without ever being able to realize
it. This advantage is necessary. In the words of President
Lyndon Johnson,
You do not take a person who, for years, has been hobbled by
chains and liberate him, bring him up to the starting line and
then say, you are free to compete with all the others
30


How the Judiciary viewed Reservations:
I shall briefly refer to leading decisions rendered by
Supreme Court on the question of reservations in favour of
backward classes (including scheduled castes and scheduled
tribes).
Reservation in selection posts by way of promotion in favour of
Scheduled Caste came up for consideration before the
Supreme Court in General Manager Southern Railway Vs
Rangachari
31
by a majority of 3:2 the reservation was upheld
Speaking for the majority Gajendragadkar J., (as he then was)
held that advancement of Backward Classes require not only
representation in the lower rung of services but in selection
posts also and that matters relating to employment in Article
16(1) include all matters in relation to employment both prior
37
and subsequent to employment. Adequate representation
implies consideration of
size as well as values, numbers as well as the nature of
appointments held and it also involves not merely the numerical
test but also the qualitative work
The minority judgments of WanchooJ.(as he then was)
and Rajagopalachari Iyengar J., laid emphasis that inadequacy
of representation of Backward class of citizens under Article
16(4) is referrable to qualitative deficiency but not inadequate
representation in each grade of service.
The majority judgment in Rangachari case was overruled by the
majority in Indra Sawhney case. While not disagreeing with the
view of Rangachari, the majority judgment delivered by Justice
Jeevan Reddy in Indra Sawhney case construed Article 16(4)
conjointly with Article 335 which speaks of efficiency of
administration and held that it would be unwise to provide
reservations in promotion at the cost of efficiency. The
reasoning of Jeevan Reddy J. speaking for the majority is:
While it is certainly just to say that a handicap should be given
to backward class of citizens at the stage of initial appointment,
it would be serious and unacceptable inroad into the rule of
equality of opportunity to say that such a handicap should be
provided at every stage of promotion throughout their career.
That would mean creation of a permanent separate category
apart from the mainstream- a vertical division of the
administrative apparatus. The members of reserved categories
38
need not have to compete with others but only among
themselves. There would be no will to work, compete and excel
among them. Whether they work or not, they tend to think, their
promotion is assured. This in turn is bound to generate a feeling
of dependence and heart burning among open competition
members. All this is bound to affect the efficiency of
administration. Putting the members of backward classes on a
fast tract would necessarily result in leap frogging and the
deleterious effects of leap frogging need no illustration at our
hands.
Although in one respect regarding reservations in promotion
Rangachari was overruled by Indra Sawhney, all lingering
doubts as to whether backward Class of citizens in Article 16(4)
includes Scheduled Castes was settled by Rangachari beyond
any shadow of doubt. Predictably no subsequent decision of
the Supreme Court has permitted any debate on this aspect.
What is of utmost significance is that Indra Sawhney had
nothing to do with reservations relating to Scheduled castes
and Scheduled Tribes in public services. That question did not
arise at all. A.M.Ahmedi J.( as he then was) in his dissenting
judgment referred to this aspect and held that the question
need not be considered as the case pertained to only other
Backward classes excluding Scheduled Castes and Scheduled
Tribes in relation to whom Mandal commission was appointed.
The majority judgment in Mandal case had resulted in the
Parliament enacting the Constitution (Seventy Seventh)
39
Amendment Act by inserting clause (4A) in Article 16 with
retrospective effect from 17.6.1995.
Clause (4A) reads:
"Nothing in this Article shall prevent the State from making any
provision for reservation in matters of promotion to any class or
classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in the
opinion of the State, are not adequately represented in the
services under the State."
Clause (4A) of Article 16 is confined only to Scheduled Castes
and the Scheduled Tribes in matters relating to promotions, the
justification being inadequate representation in services.
The concept of equality in the context of the claim for
reservation of upgraded posts in favour of Scheduled Castes
and Scheduled Tribes was examined by the Supreme Court in
the Union of India Vs Pushpa Rani
32
. The court reconciled the
principle of non discrimination with affirmative action. The
affirmative action was held to be an obligation on the part of the
State.
.the concept of equality enshrined in Part III and Part IV
of the Constitution has two different dimensions. It embodies
the principle of non discrimination (Articles 14,15(1),(2) and
16(2). At the same time it obligates the state to take affirmative
action for ensuring that unequals (down trodden, oppressed
and have nots) in the society are brought at a level whereby
40
they can compete with others (haves of the society) Articles
15(3), (4),(5), 16 (4), (4-A), (4-B), 39 39-A and 41
33
.
The judgments of the Supreme Court in Vinod
Kumar Vs Union of India
34
and Ajith Singh III Vs State of
Punjab
35
striking down of relaxation of standards in matters of
consideration for promotion to reserved vacancies and
consequential seniority after promotion necessitated three
further Amendments: The Constitution (Eighty Fifth
Amendment) Act 2001 further amended Article 16(4A) w.e.f
17.6.95 providing for consequential seniority for which
reservation is made; The Constitution (Eighty First Amendment)
Act 2000 inserted clause (4B) w.e.f 9.6.2000 in Article 16
treating the reserved vacancies at the promotional level as
separate category to be filled up in subsequent years without
treating them as covered by the ceiling limit of 50%;
The Constitution (Eighty Second Amendment) Act 2000
w.e.f.8.9.2000 introduced the proviso to Article 335 conferring
power on the State to relax qualifying marks in any examination
or lowering the standards for evaluation in respect of
reservation in promotions.
Article 16(4) for a long time was understood as an exception
to the principle of non discrimination embodied in clause (1) of
that Article. Very explicitly this was declared by Supreme Court
in T.Devadasan Vs Union of India
36
:-
A proviso or an exception under Article 16(4) cannot be so
interpreted as to nullify or destroy the main provision.
41

This view was overturned by a seven member bench in State of
Kerala Vs N.M.Thomas
37
. The court declared in clear terms that
Article 16(4) is not an exception to Article 16(1). Identification of
backward classes presented considerable difficulty. So far as
Scheduled Castes and Scheduled Tribes are concerned there
was never any doubt from the beginning of the Constitution.
The First major decision explicitly holding that Scheduled caste
and Scheduled Tribe are covered by the expression backward
class of citizens is Rangachari case. In Thomas case the court
also laid down that Scheduled Castes and Scheduled Tribes
are descriptive of backwardness.

Identification of Other Backward Classes:
The first important case in which the identification of
backwardness came up for consideration before Constitution
Bench in Balaji Vs State of Mysore
38
. The Government of the
erstwhile State of Mysore reserved a total of 68% in educational
institutions under Article 15(4) pursuant to the
recommendations made by a committee headed by
Dr.Naganna Goud. Apart from 15% infavour of Scheduled
Castes and 3% infavour of Scheduled Tribes, the Government
earmarked 28% in favour of backward classes and 22% in
favour of more backward classes. While striking down the
reservation on the ground that it was beyond reasonable limits
being in excess of 50%, the Constitution Bench speaking
42
through Gajendragadkar J., (as he then was) held that the two
Articles 15(4) and 16(4) being special provisions,
(1) The extent of reservations should not be in excess of
50%.
(2) To qualify as backward class the backwardness of any
caste must be social and educational but not either social
or educational. (This view was subsequently approved in
Mandal Case.)
(3) Caste cannot itself be a determining factor in the
identification of backwardness (This was overruled in
Mandal case).
(4) Social backwardness is the result of poverty. (This was
disapproved in Mandal case holding that poverty is the
result of social backwardness.
(5) Backwardness under Article 15(4) must be comparable to
that of Scheduled Castes and Scheduled Tribes. (This
was also disapproved in Mandal case).
(6) The division of backward classes into backward and
more backward was illegal. (This view was not approved
in Mandal case holding that backwardness is not of
uniform nature and some are more backward than others.

If an entire caste is socially and educationally
backward it can be recognized as backward caste was
accepted by the Supreme Court in State of A.P Vs
U.Balram
39
.
43
Very often we come across criticism that
poverty should be the basis for identification of
backwardness. This was emphatically rejected as far
back as 1973 in Janaki Prasad Vs State of J&K
40
.
Indra Sawhney Vs Union of India
41
is a path
breaking judgment explaining what is social justice in the
Indian context and how the caste factor contributed to
social and educational backwardness of the
overwhelming majority of Hindus.
A Backward Classes Commission headed by
Shri B.P.Mandal was appointed by the President of India
under Article 340 (1). This Commission popularly known
as Mandal Commission was asked to determine the
criteria for identification of socially and educationally
backward classes and to recommend steps to be taken
by the State for their advancement. The Commission after
exhaustive study and after touring all the States and
personally visiting villages in each district submitted its
report within a remarkably short period of one year. The
Commission had taken note of Backward Classes among
non Hindus and estimated the population of Other
Backward Classes at 52%. It strongly recommended that
Other Backward Classes should get a share in the power
structure of the country and highlighted the fact that
making programmes for economic benefit would not be
44
sufficient and that the social structure should be changed
basically.
The Central Government headed by Shri
V.P.Singh issued an order on 13.8.90 reserving 27% of
vacancies in civil posts and services in Government of
India in favour of Other Backward Classes and the
candidates belonging to these classes who were recruited
on the basis of merit must be excluded in the computation
of the quota.
By a subsequent order dtd.25.9.91 the
Government out of the reserved quota of 27%, earmarked
10% in favour of economically backward sections of the
people. The validity of these reservations came up for
consideration in Indra Sawhney Vs Union of India
42
. Out
of the nine judges, six upheld the order but struck down
the 10% reservation in favour of economically backward
sections. Justice B.P.Jeevan Reddy spoke for four judges
constituting the majority. Ratnavel Pandian J. in his
separate opinion agreed with the majority but expressed
dissent on the question of excluding affluent sections
(creamy layer) among backward classes for the benefits
under Article 15(4) and Article 16(4). Justice Sawant in
his separate judgment agreed with the majority view
expressed by Jeevan Reddy J. Some of the observations
found in the majority judgments are:
45
Backwardness contemplated under Article 16(4) is
mainly social backwardness which leads to educational
and economic backwardness. If some members of any
backward caste are far too advanced socially they must
be excluded. The basis of exclusion should not merely
be economic unless of course the economic
advancement is so high that it necessarily means social
advancement. To qualify for a backward class a caste
need not be similar to a Scheduled Caste or a Scheduled
Tribe regarding its backwardness. The majority clearly
negatived the test regarding there being similarity
between Scheduled Castes, Schedule Tribes and other
Backward Classes with regard to social backwardness.
Such a test would practically nullify the provision for
reservation for socially and educationally backward
classes other than Scheduled Castes and Scheduled
Tribes
43
.
The majority judgment also approved that if a State wants
to categorize backward classes into Backward and More
Backward it would not suffer from any legal infirmity.
A State may think it advisable to make a categorization
even among other backward classes so as to ensure that
the more backward among the backward classes
obtained the benefits intended for them. The 50% outer
limit for reservations held in Balaji case, it was explained
that while applying the ceiling limit of 50% every year of
46
recruitment should be taken as a unit but not the entire
strength of the cadre.
Creamy layer aspect has no relevance to Scheduled
Castes and Scheduled Tribes who are treated separately
although they also constitute a part of Backward classes
in the wider context. Considering the question as to the
justification of excluding advanced sections among the
backward classes for the purpose of Article 15(4) and
16(4) the majority judgment of the Supreme Court in Indra
Sawhney case evolved the principle that the creamy
layer among the backward classes must be kept out of
the protective umbrella of Article 15(4) and Article 16(4).
The reason for excluding the creamy layer according to
Justice Sawant in his separate but concurring judgment is
that clubbing them with the rest would be unconstitutional
since it would result in treating unequals equally. If the
creamy layer is not excluded the rest of the backward
classes would remain in perpetual backwardness since
the creamy layer would lap up all the special benefits to
the exclusion at the cost of the rest.
From a realistic angle Justice Sawant examined the
question as to how to ascertain the creamy layer. Merely
by being forward among the backwards is not the correct
test.
The correct criteria for judging the forwardness of the
forwards among the backward classes is to measure their
47
capacity not in terms of the capacity of others in their
class, but in terms of the capacity of the members of the
forward classes
44
.
The advancement achieved by the backward
classes must not only be with reference to quantitative
representation but it must be qualitative
which means representation in the higher rungs of
administration as well, the competitive capacity should be
determined on the basis of the capacity to compete for
the higher level posts also. Such capacity will be acquired
only when the backward sections reach those levels or at
least near, those levels also
45
.
Justice Jeevan Reddy who spoke for four judges
constituting the majority was of the view that
if some of the members are far too advanced socially
(which in the context necessarily means economically and
may also mean educationally) the connecting thread
between them and the remaining class snaps the
basis of exclusion should not merely be economic unless
of course the economic advancement is so high that it
necessarily means social advancement
While stating that the income of a person can be taken as
a measure of social advancement, Justice Jeevan Reddy
cautioned the limit to be prescribed should not be such
as would result in taking away with one hand what was
given away with the other. Recognising that certain
48
positions in life clearly reflect the social advancement
without any further enquiry he cited the example of the
members of All India Services.
The Government of India appointed an expert
committee to recommend the criteria for exclusion of
socially advanced persons/sections from the benefits of
reservation. The Expert Committees recommendation
was accepted by Government of India and a notification to
that effect was issued on 8.9.93. As per this notification,
broadly speaking sons and daughters of the following are
not eligible for the benefits:
(1) Those holding Constitutional posts
i) Class I Officers
ii) Class II Officers
iii) Employees in Public Sector undertakings holding
position comparable to Class I and Class II.
iv) Armed Forces holding the Rank of Col. and above.
Professional classes like Doctors, Lawyer and
Chartered Accountants, Property owners
(Agricultural holdings holdings in excess of 85%
of statutory ceiling.)
The gross annual income was fixed at Rupees one lakh
and above for falling within the ambit of creamy layer.
Subsequently this limit was raised to Rs.2.5 Lakhs in
2004 and in 2008 it was further raised to Rs.4.5 Lakhs.

49
The fixation of income for applying creamy layer test
should accord with the principle laid down by the majority
judgment in Indra Sawhney case. The social
advancement achieved by persons of backward classes
should not be measured with reference to the persons
belonging to Backward Classes but the comparison
should be with reference to the forward classes. The
creamy layer income limits fixed so far appear to be not in
tune with the criteria laid down in Indra Sawhney case.


Scheduled Caste / Scheduled Tribe vis a vis Other
Backward Classes- One noticeable factor in the
discussion concerning Backward Classes is the vide gulf
in the backwardness between Scheduled Castes,
Scheduled Tribes and other Backward Classes. So far as
Scheduled Castes are concerned due to historical
reasons it is admitted universally that they are at the
bottom. Scheduled Castes cannot be compared with
other castes for the obvious reason that the different
groups and sects among Dalits because of the practice of
untouchability have been included in the Schedule of
Government of India Act 1935 which has been followed in
the Constitution. Because of this inclusion they are called
Scheduled Caste and so their backwardness cannot be
50
judged with reference to other organized castes in Hindu
society. According to Justice Krishna Iyer:
To confuse this backward most social composition with
castes is to commit a constitutional error, misled by a
compendious appellation. So that, to protect harijans is
not to prejudice any caste but to promote citizens
solidarity.
The position of Harijans under the Constitution was
explained by the Learned Judge:
(1) The Constitution itself demarcates Harijans from
others. (2) This is based on the stark backwardness of
this bottom layer of the community. (3) The
differentiation has been made to cover specifically the
area of appointments to posts under the state. (4) The
twin objects, blended into one, are the claims of
Harijans to be considered in such posts and the
maintenance of administrative efficiency. (5) The State
has been obligated to promote the economic interests
of Harijans and like Backward classes. Article 46 and
335 being a testament and Article 14 to 16 being the
tool- kit if one may put it that way. To blink at this
panchsheel is to be unjust to the Constitution
46
.
A controversy has arisen sometime back as to
whether among the Dalits there could be valid
classification for the purposes of educational employment
under Articles 15(4) and 16(4) guided by the principle of
51
relative backwardness. Members of certain Scheduled
Castes felt that the relatively advanced castes among
them have been cornering all the benefits of reservation
both with regard to education and employment leaving the
real backwards perpetually in a state of backwardness.
In the State of A.P an attempt was made to classify
Scheduled Castes on the basis of their relative backwardness
but the Supreme Court quashed that in E.V.Chinnaiah Vs State
of A.P
47
. The classification was made by the State of A.P on the
basis of recommendations made by a Commission headed by
Justice Ramachandra Raju, a retired High Court Judge to
identify the Scheduled Castes that failed to secure the benefits
of reservation in admissions to educational colleges and
appointments in services. The Constitution Bench of the
Supreme Court held that all castes included in the presidential
order made under Article 341 form a class by themselves
they are deemed to be one class. The Constitution Bench
followed the earlier precedent N.M.Thomas case in which
Krishna Iyer J., held that Scheduled castes are not castes in the
Hindu fold, but they are:
an amalgam of castes, races, groups, tribes, communities or
parts thereof found on investigation to be the lowliest and in
need of massive State aid and notified as such by the
President
48

The Supreme Court noticed the fact that the state has fulfilled
its Constitutional obligation by reserving seats in educational
52
institutions and public services in favour of Scheduled Castes
and Scheduled Tribes in proportion to their population, and:
Having done so, it is not open to the State to sub-classify a
class already recognized by the Constitution and allot a portion
of the already reserved quota amongst the State-created
subclasses within the list of Schedule Castes
49
.
The court declared that A.P State has no legislative
competence claimed by it under the Entry 41 of List II or Entry
25 of List III to subclassify Scheduled Castes which are
included in the Presidential order.
When it was pointed out to the court that sub
classification of backward classes was permitted in Indra
Sawhney case, the court declared that Scheduled Castes
constitute a homogeneous group and the same cannot be
regrouped or further classified by the State Legislature.
So far as other Backward Classes are concerned sub
classification was found to be permissible in Indra Sawhney
case. Justice Sawant in his separate but concurrent judgment
pointedly referred to this aspect. If there is substantial
difference in backwardness among the different Other
Backward Classes,
.not only it is advisable but also imperative to make the sub
classification if all the backward classes are to gain equitable
benefit of the special provisions under the Constitution.
Citing such an example of different Backward Classes
with different layers of backwardness Justice Sawant declared:
53
In such circumstances, sub classification of the backward
classes into backward and more or most backward is not only
desirable but essential. However, for each of them a special
quota has to be prescribed as is done in the Karnataka
Government order
50
.
Justice Jeevan Reddy who spoke for the majority in
the Indra Sawhney case while approvingly referring to the
earlier judgment of the Supreme Court in State of A.P Vs
Balaram
51
which found that sub classification of other backward
classes was constitutionally valid, held that:
..a state may think it advisable to make a categorization
even among other backward classes so as to ensure that the
more backward among the backward classes obtain the
benefits intended for them.

Reservations in Local Bodies:
The Constitution (Seventy Third Amendment) Act,1992 and the
Constitution (Seventy Fourth Amendment) Act, 1992 (popularly
called Rajiv Gandhi Acts) which came into force w.e.f 24.4.93
and 1.6.93 respectively brought about a radical change in
strengthening the local bodies Panchayats and Municipalities-
by inserting Parts IX and Part IX A in the Constitution. For the
first time real power was devolved on local bodies. What is
important for our present discussion is that in proportion to their
population seats are reserved for Scheduled Castes and
Scheduled Tribes and among the reserved seats one third for
54
women belonging to those categories. (Articles 243 D (2) and
243 T (2). Overall representation for women to the minimum
extent of one third including the seats reserved for women of
Scheduled Castes and Scheduled Tribes in every local body is
ensured. The States are empowered by legislation to provide
reservation in favour of backward class of citizens. This was
undoubtedly a great step in the realisation of social justice for
the backward communities who otherwise were not in a position
to wield effective political power in Panchayats and
Municipalities.
Both the above Constitutional amendments came to be
challenged in the Supreme Court in K.Krishnamurthy & Ors.Vs
Union of India& Anr
52
. Very forceful arguments were advanced
in the Supreme Court on behalf of the Petitioners contending
that social and economic backwardness is not suggestive of
political backwardness and most of the other backward classes
groups are already well represented in the political arena and
needed no protection. The Constitution Bench which decided
the batch of Writ Petitions speaking through Chief Justice
Balakrishnan rejected all the contentions. The reasoning of the
court is that:
The overreaching scheme of Article 243D and 243T is to
ensure the fair representation of social diversity in the
composition of elected local bodies so as to contribute to the
empowerment of the traditionally weaker sections in the
society. The preferred means for pursuing this policy is the
55
reservations of seats and chairpersons positions in favour of
Scheduled Castes (SCs), Scheduled Tribes (STs), women and
backward class candidates
53

The attempt on the part of the Petitioners for excluding
persons belonging to creamy layer from enjoying the benefits of
political reservation did not succeed. Stating that the
reservations in local self Government are intended to directly
benefit the community as a whole, rather than just the elected
representatives the court concluded that
it is for this very reason that there cannot be exclusion of the
creamy layer in the context of political reservation.

Krishnamurthy case has created a very peculiar
situation so far as other backward classes are concerned. The
rationale for reservation both for Scheduled Caste, Scheduled
Tribe and other Backward Classes as stated by the court does
not make any difference:
In the domain of political participation, there can be no
objective parameters to determine who is more likely to get
elected to representative institutions at any level. The choices
of voters are not guided by an objective assessment of a
candidates merit and efficiency. Instead they are shaped by
subjective factors such as the candidates ability to canvass
support, past service record, professed ideology and affiliations
to organised groups among others. In this context it is quite
possible that candidates belonging to the SC/ST/OBC
56
categories could demonstrate these subjective qualities and win
elections against candidates from the relatively better- off
groups. However such a scenario cannot be presumed in all
circumstances. It is quite conceivable that in some localised
settings, backwardness in the social and economic sense can
also act as a barrier to effective political participation and
representation. When it comes to creating a level playing field
for the purpose of elections to local bodies, backwardness in
the social and economic sense can indeed be one of the criteria
for conferring reservation benefits
54
.
When the court treated all the three categories Scheduled
Castes and Scheduled Tribes and other Backward Classes on
the same footing for justifying reservation, there appears to be
no valid reason for judicial invention of a new ground to treat
Other Backward Classes as a separate category thereby
creating unjustified and unreasonable difficulties for the State.
The argument of the Petitioners counsel that disadvantages
which restrict access to education and employment cannot be
readily equated with disadvantages in the realm of political
representation was partially accepted by the court.
Consequently the inference drawn was that backwardness in
social and economic sense does not necessarily imply political
backwardness.
In the next paragraph the court accepted when it comes
to creating a level playing field for the purpose of elections to
local bodies backwardness in the social and economic sense
57
can indeed be one of the criteria for conferring reservation
benefits.
The above reasoning fully applies to all the three
categories Scheduled Castes , Scheduled Tribes and Other
Backward Classes which the court treated as one unit in para
54 as already extracted supra. But rather paradoxically the
court drew the conclusions i and iii (which are extracted below)
laying down that separate criteria have to be evolved for the
purpose of ascertaining the political backwardness of other
backward classes. Conclusions I and III are as follows:
(i) The nature and purpose of reservations in the context of
local self government is considerably different from that of
higher education and public employment. In this sense, Article
243 D and Article 243-T form a distinct and independent
constitutional basis for affirmative action and the principles that
have been evolved in relation to the reservation policies
enabled by Articles 15(4) and 16(4) cannot be readily applied in
the context of local self government. Even when made, they
need not be for a period corresponding to the period of
reservation for the purposes of Articles 15(4) and 16 (4), but
can be much shorter.
(iii) We are not in a position to examine the claims about
overbreadth in the quantum of reservations provided for OBCs
under the impugned State legislations since there is no
contemporaneous empirical data. The onus is on the executive
to conduct a rigorous investigation into the patterns of
58
backwardness that act as barriers to political participation which
are indeed quite different from the patterns of disadvantages in
the matter of access to education and employment. As we have
considered and decided only the constitutional validity of Article
243-D(6) and 243-T(6), it will be open to the Petitioners or any
aggrieved party to challenge any State legislation enacted in
pursuance of the said constitutional provisions before the High
Court. We are of the view that the identification of backward
classes under Article 243-D (6) and 243-T(6) should be distinct
from the identification of SEBCs for the purpose of Article 15(4)
and that of backward classes for the purpose of Article 16(4)
55
.
Other than social and educational backwardness it
is difficult to conceive of any other factor for ascertaining
backwardness for the purpose of providing political reservation.
If the castes and tribes found in the Presidential orders issued
under Articles 341 and 342 hold good for political reservation of
Scheduled Castes and Scheduled Tribes in local bodies (as the
same was not disturbed by the Supreme Court), it is very
difficult to understand how a separate test needs to be evolved
in respect of other backward classes.
It is practically not possible to prepare a new list of backward
classes exclusively for the purpose of political reservation at the
local bodies level. The term backward classes must be
understood in the context of what is laid down in Article 340(1)
and that is the intention of the Founding Fathers of the
Constitution. There cannot be a backward class in this country
59
which is free from social and educational backwardness. It is
the advancement in social and educational fields which enables
people to contest effectively in the elections. If any caste
happens to win overwhelming number of seats both from the
reserved as well as non reserved categories, the situation calls
for excluding that caste from the list of OBCs. That would be a
matter for individual inquiry as and when such a situation
surfaces.
As a consequence of the present judgment, it would be difficult
to conduct elections to local local bodies maintaining
reservation for backward classes. The situation renders the
Seventy Third and Seventy Fourth Amendments to the
Constitution ineffective since the judgment directs preparation
of separate lists of OBCs under Article 243-D(6) and 243-T(6)
distinct from the one prepared for Article 15(4) and 16(4) of the
Constitution of India.

When the argument of the Petitioners questioning political
reservation was rejected on the ground that such a reservation
in local bodies is intended to empower the community as a
whole i.e. the community to which the elected representatives
belong to, there appears to be no valid reason for drawing a
line between Scheduled Castes and Scheduled Tribes on the
one hand and the other backward classes on the other.


60
Other Aspects of Socio Economic Justice:
The gamut of social justice extends to protective
measures in favour of women, children, workers, industrial
agrarian and other sectors, small farmers and minorities
besides religious reforms limited to secular activities. Each one
of these is fit to be a separate topic and so I do not propose to
deal with them except to refer to a few decisions touching upon
some of these aspects.
In Crown Aluminium Works Vs The Workmen
56
, one of the
questions that frequently raised by industrialists that when
economic condition of the industry does not justify payment of
bare minimum wages can it still be compelled to pay such
wages which will cause its ruination, came up for consideration.
Discussing this aspect Gajendragadkar J. (as he then was)
speaking for the Constitution Bench in clear terms declared :
No industry has a right to exist unless it is able to pay its
workmen atleast a bare minimum wage. It is quite likely that in
under developed countries, where employment prevails on a
very large scale, unorganised labour may be available on
starvation wages, but the employment of labour on starvation
wages cannot be encouraged or favoured in a modern
democratic welfare state. If an employer cannot maintain his
enterprise without cutting down the wages of his employees
below even a bare subsistence or minimum wage, he would
have no right to conduct his enterprise on such terms
57
.
61
In the context of the right of women to maternity benefits
flowing from the Maternity Benefit Act, 1961 enacted pursuant
to Articles 38 ,39,42 and 43 of the Directive Principles of the
Constitution, the Supreme Court speaking through Saghir
Ahmed J. in Municipal Corporation of Delhi Vs Female Workers
(Muster Roll) &Ors.
58
held:
A just social order can be achieved only when inequalities are
obliterated and everyone is provided what is legally due.
Women who constitute almost half of the segment of our
society have to be honoured and treated with dignity at places
where they work to earn their livelihood. Whatever be the
nature of their duties, their avocation and the place where they
work, they must be provided all the facilities to which they are
entitled. To become a mother is the most natural phenomenon
in the life of a woman. Whatever is needed to facilitate the birth
of child to a woman who is in service, the employer has to be
considerate and sympathetic towards her and must realise the
physical difficulties which a working woman would face in
performing her duties at the workplace while carrying a baby in
the womb or while rearing up the child after birth. The Maternity
Benefit Act, 1961 aims to provide all these facilities to a working
woman in a dignified manner so that she may overcome the
state of motherhood honourably, peacefully, undeterred by the
fear of being victimised for forced absence during the pre or
post-natal period
59
.
62
The court also referred to the Universal Declaration of
Human Rights and the Convention on the elimination of all
forms of discrimination against women.
The concept of political reservation cannot be accepted
in a narrow sense thereby implying that the electorate in its
entirety must consist of persons belonging to reserved
categories. The Haryana Municipal Act adopted the mandate
contained in Part IX A of the Constitution. The question arose in
Bihari Lal Rada Vs Anil Jain and Ors
60
whether a person
belonging to a backward class having won the seat as a
Municipal Councillor could contest for the post of President, not
reserved for any category? A very seemingly attractive
argument was advanced namely, as other backward classes
candidates are eligible to contest for reserved seats for which
persons belonging to general category are excluded so also
candidates belonging to reserved categories should be barred
from seeking election to non reserved seats/posts. The court
following the precedent in Kasambhai F.Ganchi Vs Chndubhai
D.Rajput and Ors
61
declared that:
Obviously there cannot be any such reservation of seats in
municipalities nor to the office of Chairperson in favour of
candidates belonging to general category. There is no separate
category like general category. The expression belonging to
the general category wherever employed means the seats or
offices earmarked for persons belonging to all categories
irrespective of their caste, class or community or tribe. The
63
unreserved seats euphemistically described as general
category seats are open seats available for all candidates who
are otherwise qualified to contest to that office
The precedent followed i.e Kasambhai case related to the claim
of a person belonging to a backward class but elected from a
general seat and stood for election for the post of President
which was reserved for a backward class candidate Upholding
his right the court held:
When the idea is to promote the weaker sections of the
society, and to improve their lot, it would be a contradiction in
terms if members belonging to that section are debarred from
standing to the office of the president because such a
candidate is popular enough to get elected from a general
constituency. It is a fundamental principle of democratic
election that a person who is more popular is elected, popularity
being measured by the number of votes which the person gets.
The language of various provisions do not in any way suggest,
expressly or by necessary implication, that even though a
person who belongs to a reserved category and is popular
enough to get elected from a general constituency should be
barred from contesting the election of the President when that
office is to be filled only by a reserved category person
62

Several legislative measures were adopted by the State
to fulfil the objective of social justice incorporated in the
preamble and other provisions of the Constitution. I have
already referred to reservations in favour of Scheduled Castes,
64
Scheduled Tribes and other Backward Classes which form part
of social justice. In order to usher in economic democracy as
part of rendering economic justice laws touching upon agrarian
reforms, minimum wages, state monopoly, nationalisation of
certain trades and industrial control of certain commodities,
control of money lending, debt relief etc have been enacted.
Any discussion in respect of any one of these topics is likely to
be voluminous and so I shall briefly refer as to how the courts
have resolved the questions that surfaced posing challenge to
the laws in that behalf since all these laws aimed at the
collective interest of the society but perceived to be in breach of
guaranteed individual rights. Articles 19(1) (f) and 31 dealing
with the right to property have been repealed by the
Constitution Forty Fourth Amendment Act 1978 w.e.f 20.6.79,
and so I am omitting reference to the entire case law as well as
how the concept of land reforms was viewed differently by the
Members of the Constituent Assembly.
Persons subjected to disabilities come under the
broad protective umbrella of social justice. The Parliament
enacted the Persons with Disabilities Equal Opportunities
(Protection of Rights and Full Participation) Act,1995 which
came into force w.e.f.7.2.96. It contemplated, by Section 43,
schemes for preferential allotment of land in favour of persons
with disabilities at concessional rates for constructing houses
setting up businesses, recreation centres, establishment of
schools, research centres and factories. As the schemes have
65
not been formulated by several State Governments, the
Supreme Court in Prajwala Vs Union of India and Ors
63
issued
directions for implementation of the Act leaving it to the
discretion of State Government and local authorities as to the
limits of percentage of reservations.
The high point of socialism was reached
when the Supreme Court ruled that the workers of a company
have a right to be heard in the determination of the question
whether the company should continue to run or be shut down
on the orders of the court. The concept of corporate
responsibility was judicially examined and a new interpretation
was given by Justice P.N.Bhagwati (as he then was) speaking
for the majority in National textile Workers Union Vs
P.R.Ramakrishnan & Ors
64
.
The Constitutional mandate is therefore clear and undoubted
that the management of the enterprise should not be left
entirely in the hands of the suppliers of capital but the workers
should also be entitled to participate in it, because in a socialist
pattern of society, the enterprise which is a centre of economic
power should be controlled not only by capital but also by
labour. It is therefore idle to contend thirty years after coming
into force of the Constitution and particularly after the
introduction of Article 43 A in the Constitution, that the workers
should have no voice in the determination of the question
whether the enterprise should continue to run or be shut down
under an order of the court.
66
Globalisation:
Economic liberalism and socio economic justice do not go
together in developing countries especially in a country like
ours with in built social inequalities. With India signing the WTO
agreement in 1955 serious issues have surfaced. The WTO
regime covers Intellectual Property Rights as well as services.
India being a signatory to WTO agreement, it is under an
obligation to restructure the legal system so as to accord with
the WTO regime. Article 16(4) of the WTO agreement
mandates each Member to ensure that its laws, regulations and
administrative procedures are in conformity with its obligations
under the WTO. Criticism is mounting in our country that
globalization in the form of economic liberalism obliterating
barriers between countries in matters relating to trade
commerce and services, is resulting in huge acquisition of
wealth by individuals and business houses without caring for
the social and economic development of the marginalized and
deprived sections of the society. According to the eminent
economist Amartya Sen if the present economic trend
continues in the country, half of India would resemble
California, while the other half would be reduced to sub-
sahara
65
. The I.T sector is growing @35-40%. Only 15% of the
countrys population is benefitting from the fruits of accelerated
GDP growth because of globalization. The Special Economic
Zones, it has been noticed are really not contributing to the
prosperity of the small peasants. Their lands have been
67
acquired for setting up Special Economic Zones by throwing
them out of their traditional occupations and reducing them to
manual workers in the Special Economic Zones.
The new facilities that come up are unlikely to absorb even
5% of the farm workers who are deprived of their occupational
pursuit
66

The picture portrayed by Shri Ashok Mitra is
The top decile of Indian society is experiencing
unprecedented prosperity. It will import more and more of
consumption goods from overseas, thereby denying the poor
the privilege of producing these goods domestically. The poor
in the countryside will continue to starve and die
67
.
The restructuring of Indian laws to accord with WTO
regime poses very complicated questions. Federalism is a
basic feature of the Indian Constitution as ruled by the Supreme
Court in Keshavanand Bharati case: socio economic justice is
one of the basic features. Many laws within the ambit of the
legislative powers of the States under List II of Schedule VII of
the Constitution need modification if WTO regime is to be
implemented fully. Whether the Union Parliament can make
laws in this regard violating the Constitutional scheme as to the
distribution of legislative power between the Centre and the
States?.
Opportunities in Public services are dwindling because of
economic liberalism. The chances of the Backward Classes
(including Scheduled Castes and Scheduled Tribes) for a fair
68
share of jobs in the public sector have been reduced to a great
extent as the State has begun to withdraw from economic
activities leaving the field to the private sector. The lot of the
Backward Classes will not improve unless reservation policy is
introduced in the Private Sector. If a private individual starts a
business or enterprise with his own funds without in any
manner seeking financial help from the state, there cannot be
any legal justification to insist that he should recruit staff on the
basis of reservation policy. But where business and industrial
units are started with the financial aid of the Government or
Public Financial Institutions, reservation policy must be
implemented effectively. It is a necessity to set right the
imbalance of the Indian society in the social and economic
spheres because of centuries of social inequality with its
necessary concomitant of social discrimination resulting in
deprivation.
The American example may be briefly noticed.
Whenever the finances of the State are involved a small
percentage of reservation is statutorily provided. The test for
determining the constitutionality of such acts in the United
States is the compelling state necessity, the burden of which is
cast upon the state. But under our Constitution there are
specific provisions enjoining the State to implement socio
economic justice especially for the backward classes. Indian
legislation or Governmental actions cannot be judged on the
touchstone of compelling necessity of the State (Ashok Kumar
69
Thakur Case) as was done by the U.S.Supreme Court in
Fullilove Vs Klutznick
68
and the, Regents of the University of
California Vs Allan Bakke
69
. The Civil Rights Act, 1964 enacted
by the U.S Congress seeks to lift the status of the blacks by
affirmative actions and the U.S. Supreme Court interpreted that
the Congress by enacting the Civil Rights Act intended to
prohibit not only patent discrimination but also all practices
which are fair in form but discriminatory in operation (Griggs Vs
Duke Power Company
70
.).
Our Constitution incorporates specific mandate to the
State to take care of Backward Classes by providing
reservations in law making bodies, educational institutions and
public services.

Failed Attempt to subvert the Constitution:
The commitment to socio-economic justice and its actual
implementation depend upon the policies enunciated by
political parties when they fight election to capture power.
Qualification to exercise franchise is citizenship of the Country
and not being subjected to disqualification laid down in the
Constitution or any other law made by Parliament or any State
Legislature. Every such citizen shall be entitled to be
registered as a voter at any such election. Article 325 speaks
of electoral roll for every territorial constituency for election to
the House of the People or Houses of the Legislature of a
State. Article 81(1)(a) and 170(1) mandate that the members of
70
House of the People and State Legislative Assemblies
respectively shall be chosen by direct elections. Article 326 of
the Constitution speaks of elections to the House of the People
and the Legislative Assemblies of States on the basis of adults
suffrages. Article 326 reads as follows:-
326. Election of the House of the People and to the
Legislative Assemblies of States to be on the basis of adult
suffrage.- The elections to the House of the People and to
the Legislative Assembly of every State shall be on the
basis of adult suffrage; that is to say, every person who is a
citizen of India and who is not less than eighteen years of
age on such date as may be fixed in that behalf by or under
any law made by the appropriate Legislature and is not
otherwise disqualified under this Constitution or any law
made by the appropriate Legislature on the ground of non-
residence, unsoundness of mind, crime or corrupt or illegal
practice, shall be entitled to be registered as a voter any
such election.

This Article is part of the original Constitution and the only
change brought about was with regard to the minimum age to
exercise franchise; earlier it was 21 years which was reduced to
18 years by The Constitution (Sixtyfirst Amendment) Act, 1986.
The first limb of Article 326 mandates elections to the House of
the People and Legislative Assemblies of the States on the
basis of adult suffrage. It necessarily implies that elections
71
must be held to the House of the People and the Legislative
Assemblies on the basis of adult franchise. Keshavanand
Bharathis case mentions illustratively what constitute basic
features of the Constitution: Republican and Democratic Forms
of Government are among the basic features of the
Constitution. The Founding Fathers visualised a democratic set
up with law making bodies consisting of members elected by
the people. Holding of elections and adult suffrage are
inseperably linked. Without elections there can be no
democracy. Any tinkering with this would amount to violating
one of the unalterable basic structures of the Constitution.
In the face of the above constitutional requirements
needed to safeguard effectively the functioning of democracy in
the Country, an attempt was made way back in 2000 when the
NDA Government was in power to tinker with the electoral
process. A Commission headed by a former Chief Justice of
India Justice M.N.Venkatachaliah, was appointed by the Union
Government to review the working of the Constitution. This
Commission was set up by an executive order without any
Parliamentary sanction. There was no political consensus
either on the terms of reference or composition of the members
of the Commission. The Indian National Congress, the oldest
and the largest political party in the Country and the main
opposition party in the Rajya Sabha and Lok Sabha boycotted
the Commission refusing to take cognizance of its existence. A
gigantic exercise like review of the Constitution, should be
72
undertaken in consultation with all political parties since the
Constitution making or its review must necessarily be non-
partisan in nature keeping in view no consideration except the
interest of the Nation as a whole. The Review Commission
has set up study groups to submit papers for consideration by
the Commission. The paper submitted by the study group on
Electoral Reforms shocks the conscience of any votary of
democracy.
The paper raises the fundamental question of the high cost
of elections and legitimate sources of funding political
activity and election campaigns. In this connection the need
for drastically bringing down the costs and the Gandhian
model of decentralization and a bottom-up instead of the
present top down approach are also mentioned
71
.
The suggested options as stated by the study group
indicate their preference to dispense with direct elections to the
State Assemblies and Lok Sabha and instead opt for elections
at the grassroots level viz. Panchayats. Instead of saying it so
openly the study group attributed the idea to Mahatma Gandhi
and to many scholars without specifically quoting who they
are and when they expressed the views. In para 6.3 the study
group said:-
Based on the Indian ethos, Gandhi had advocated a low-
expense election system linked with watchdog councils and
separate elected chief executives at each local level. He
proposed a highly democratic and, what is more important, a
73
highly accountable system. More thought out and more in
keeping with the evolution of political culture in our country,
many scholars have in recent years adapted these thoughts
in their work and advocated a system of direct elections only
at the grassroots of the Indian democracy. They propose
that without in anyway interfering with the basic structure or
features of the Constitution and while fully continuing the
parliamentary system, some reforms be brought in the
electoral system. Direct elections should be held on the
basis of adult franchise at the level of Panchayats and other
local bodies. Panchayats and other local bodies could elect
the zila parishads and they could together elect the State
legislature. These three could elect the Parliament and in
the last analysis the four of these could elect the President.
The Prime Minister and the Chief Ministers could be elected
by the Parliament and the State Legislatures concerned.
The President, the Prime Minister and the Chief Ministers in
order to be elected should each necessarily secure no less
than 50% + 1 of the votes cast. Once elected, the Prime
Minister or a Chief Minister should be removable only by a
constructive vote of no-confidence.
The fact that the directly elected representatives are all at
the grassroots level where they are in contact with their
electors on a daily basis, would mean that their
accountability to the people will always be high. Corruption
will not get the kind of boost and inducement that it gets
74
presently because of an unaccountable remote
representative doing what he pleases.
The study group clearly indicated that it is in favour of the
above model by stating in para 6.4 that:-
6.4. The representatives elected at the grassroots level
will also have to win on a 50% + 1 vote principle so that
their appeal is more universal than parochial. They would
then be truly legitimate representatives of their people. In
the alternative, at the lowest tier double-member or multiple
member constituencies could be considered. Local
elections do not entail heavy costs. The cost to political
parties of indirect State and national elections will be low.
Since the national and State governments will handle only
higher level infrastructure and coordination, indirect
elections backed by party primaries will facilitate
emergence of the best leadership. The ills in the present
first-past-the-post system will be eliminated because local
governments will handle all social issues and State and
national governments shall be accountable to local
governments as advocated by Gandhi who will have
elected them. This will nurture culture, education and
values and gradually eliminate social discords. Also, this
election process, it is claimed, has the greatest potential to
bring public service spirited and sacrifice oriented people to
the fore
72
.
75
The then President of India late Shri K.R.Narayanan came out
very strongly against this indirect subversion of the
Constitution. He declared openly that India should not lean
towards any guided democracy introduced by Field Marshal
Ayub Khan in Pakisthan. Thereafter, the Commission
distanced itself from the study group adventure and
concluded:
The Commission carefully considered the strong
presentations and representations made in support of the
model but, as the consultation paper itself had anticipated
and pointed out, in the present situation, the model is not
feasible
73
.
Was not the report of the study group seen by Chief Justice
Venkatachaliah before it was circulated for eliciting public
opinion ? Whether he had seen it or not, either way it is to be
regretted that half a century after the successful working of
the Indian Constitution some people in the name of review of
the Constitution attempted to destroy its very foundation
elections based on adult suffrage.
Adult franchise is a most potent weapon in the hands of
the Backward Classes to fight for their advancement social,
educational and economic. What otherwise would have been
calamitous to Indian Democracy was averted. This failed
attempt saved the marginalized sections of the Indian society
SCs/STs/OBCs - from entrapment into serfdom. What
could be the reasons for the silence of the legal fraternity,
76
social activists and political parties (other than Congress) to
condemn such a blatant attempt to subvert the Constitution ?

Epilogue:
Social justice which is an integral part of our Constitution is
slowly getting eclipsed because of privatization and
globalization. Almost seventy percent of the wealth in the
country is concentrated in the hands of twenty percent of the
people and the rest of them are struggling for survival. In
many areas tribals are being uprooted as their habitations are
acquired for industrialization. Big industrial enterprises are
trying to take over the lands of the tribals thereby causing
social convulsions. Naxalism is on the increase. When people
are subjected to deprivation their fight to improve their lot
sometimes slides into unconstitutional methods. Development
without comprehensive growth of all sections endangers
social stability. Enormous wealth and abject poverty are sworn
enemies: both cannot co exist.
One of the methods by which social equality can be
brought about is by democratization of Hindu religion: when
eighty percent of the population in the country are Hindus the
glaring scene of social inequality springs from Hinduism.
Certain castes claiming that by virtue of their institutionalized
social superiority they can always lay down the precepts for
others to follow and that by birth only members of certain
castes alone are entitled to priesthood must change. No
77
religion in the world except Hinduism adopts the practice of
conferring priesthood on certain castes alone. This is social
injustice calling for immediate intervention by the State under
the Directive Principle of Article 46. Legislation has already
intervened and changed many practices of Hinduism as part
of social reform sanctioned by Article 25 (2) (b) of the
Constitution. The recent order of the Tamil Nadu Government
providing for reservation in the posts of temple priests is a
laudable step in the right direction. As it is under challenge in
the Supreme Court, I do not want to comment any further. But
I must mention that atleast in two cases the Supreme Court
said in order to be a priest there is no requirement that one
should be a Brahmin by birth.
Seshammal Vs. State of Tamil Nadu and N.Adityan Vs.
Travancore Dewasom Board
74


A common criticism we are hearing is that caste
based reservations are dividing the society and therefore
there should be rethinking. Abolition of caste is put forward as
one of the remedies. Unless the social structure is changed it
is impossible to abolish the caste. The Social structure will
change only when the social and economic conditions of the
Backward Classes including Scheduled Castes and
Scheduled Tribes are improved resulting in their upward
mobility equalling that of other advanced sections. This alone
can bring about social equality evidencing social intercourse
78
among all sections and groups. Unless there is demonstrable
evidence that social inequalities are obliterated, abolition of
reservation would be meaningless. How long the reservations
should continue? Where ever I go I face this question.The
answer is as long as social inequalities exist reservations
must continue. I may recall what Dr. Ambedkar said in the
Constituent Assembly
I am prepared to give far longer time. But all those who have
spoken about the reservations to the Scheduled Castes or to
the Scheduled Tribes have been so meticulous that the thing
should end by ten years. All I want to say to them, in the
words of Edmund Bruke is Large empires and small minds go
ill together
75
.
Delivering the Bharat Ratna Dr. B.R.Ambedkar Memorial
Lecture as part of the Chancellors Lecture series in 1997 at
the Nagpur University I advocated very strongly that
continuance of affirmative action is inextricably linked with
social integration. I said:
Unless the victim groups who suffered the first order
discrimination in the past because of the inbuilt social
inequalities of the Hindu society, reach the level of other
advanced classes, social integration becomes a distant
dream. The realisation of that dream is possible only by
affirmative action. The end of affirmative action is linked with
the educational and social progress of the Backward Classes.
Quicker the progress, the shorter would be the duration of
79
affirmative action. Social cohesion and societal integration are
possible only when there is equality of opportunities for all and
opportunities are available equally for every one to compete
for any position especially scarce positions. Until that stage is
reached, reservations by way of affirmative action and reverse
discrimination (implying meeting out unequal treatment for
remedying inequalities but not infliction of deliberate hostile
treatment as present punishment for past injustice), I think,
are inevitable.
The validity of affirmative action does not depend upon the
grievances made out by persons belonging to advanced
sections who secured lower ratings amongst persons
belonging to their class but secured higher ratings vis-a-vis
the Backward Classes. This grievance is similar to the one
voiced by Bakke in the United States. This criticism was
admirably demolished by Prof. Dworkin ;
"..........no one in our society should suffer because he is a
member of a group thought less worthy of respect as a group
than other groups. We have different aspects of that principle
in mind when we say that individuals should be judged on
merit, they should be judged as individuals and they should
not suffer disadvantages because of their race. In that
fundamental principle is the spirit of the goal that
affirmative action is intended to serve. The principle furnishes
no support for those who find, as Bakke does, that their own
interests conflict with that goal."
80
[See : A Matter of Principle - Ronald Dworkin -p. 302.]
Social diversity must be reflected in the set up of all
instrumentalities of the State and all institutions controlled or
funded by the State. Real equality is possible only when past
victims of social disabilities are able to claim on their own
higher positions enjoying fair equality of opportunity without any
demand for preferential treatment. For this the necessary pre-
condition is social integration which in turn depends upon all
social groups achieving more or less uniform development. The
transience of affirmative action depends upon the duration of
reaching this goal. This is the message of THOMAS AND
MANDAL decisions
76
.
The social climate has not changed: I still adhere to my
views.



1
C.K.Allen: Aspects of justice, 1958 Edition page 80.
2
David Miller : Social Justice, 1976 Edition, page 317
3
Shankarlinga Nadar Vs Rajarajeswari Dorai, 35 Indian Appeals, 176.
4
B.Shiva Rao: The Framing of Indian Constitution Vol.I, page 342

5
Constituent Assembly Debates, Volume I, Page 62
6
The Constitution (Forty Second Amendment) Act, 1976 had formally filled this gap by
including the words Socialist, Secular in the first sentence of the preamble. Our
Supreme Court explained:
The expression socialist was intentionally introduced in the preamble by the
Constitution (Forty Second Amendment) Act, 1976 with the principal aim of eliminating
inequality in income and status and standards of life. The emphasis on economic equality
in our socialist welfare society has to pervade all interpretations made in the context of
any challenge based on hostile discrimination
6
.
81

The occasion was the examination of the constitutionality of a taxation measure imposing
sales tax on cooked food sold to the affluent in the luxury hotels while exempting the
same when sold in non luxury eating places.


7
Constituent Assembly Debates, Volume I, Page 100

8
Constituent Assembly Debates, Volume I, Page 144-145

9
Constituent Assembly Debates, Volume I, Page 316

10
Constituent Assembly Debates, Volume II, Page 4

11
Constituent Assembly Debates, Volume V, Page 130

12
Constituent Assembly Debates, Volume X, Page 439

13
Constituent Assembly Debates, Volume X Page 442

14
Indias Constitution in the making by Sir B.N.Rau, Pages 250-251

15
Constituent Assembly Debates, Volume VII, Page 494

16
Constituent Assembly Debates, Volume VII, Page 41

17
Constituent Assembly Debates, Volume VII, Page 476

18
2010 (2) SCC 44
19
Random Reflections on Law and allied matters : By Justice M.N.Rao, High Court of A.P
20
1977 (4) SCC 471
21
AIR 1965 SC 1557
22
AIR 1969 SC 597
23
AIR 1969 SC 101
24
AIR 1959 SC 1381
25
AIR 1972 SC 1840
26
Constituent Assembly Debates, Volume VII, Page 696-697

27
1951 SCR 525
28
AIR 1951 SC 229
292929
2008 (6) SCC 1
30
2008 (6) SCC 1 at page 446
31
AIR 1962 SC 36
32
2008 (9) SCC 242
33
2008 (9) SCC 242 at 271
34
1996 (6) SCC 580
35
2000 (1) SCC 430
36
AIR 1964 SC 179
37
AIR 1976 SC 490
38
AIR 1963 SC 649
39
AIR 1972 SC 1373
40
AIR 1973 SC 930
41
AIR 1993 SC 477 / 1992 Supp.(3) SCC 215
42
Cited supra
43
1992 Supp.(3) SCC 215 at 726
44
1992 Supp.(3) SCC 215 at 554
45
1992 Supp.(3) SCC 215 at 554

46
State of Kerala Vs N.M.Thomas/ AIR 1976 SC 490
47
2005 (1) SCC 394
48
2005 (1) SCC 412
49
2005 (1) SCC 414
50
1992 Supp.(3) SCC 215 at 556
51
1972 (1) SCC 660
52
2010 (7) SCC 202
53
2010 (7) SCC 202 at 211 para 8
54
2010 (7) SCC 202 at 225 para 54
82


55
2010 (7) SCC 202 at 233 para 82
56
AIR 1958 SC 30
57
AIR 1958 SC 30 at para 10
58
2000 (3) SCC 224
59
2000 (3) SCC 224 at 236

60
2009 (4) SCC 1

61
1998 (1) SCC 285
62
1998 (1) SCC 285 at 293

63
2009 (4) SCC 798
64
1983 (1) SCC 228 at 249
65
The Nowhere Nation by Ashok Mitra at Pg.59
66
Ashok Mitra Op cited at Pg.83

67
Ashok Mitra Op cited at Pg.84

68
448 U.S.448
69
438 U.S.286
70
401 U.S. 424 (1971)
71
Review of the Working of the Constitution Report of the National Commission to Review the
Working of the Constitution Vol. II page 481.
72
Report of the National Commission to Review the Working of the Constitution Vol. Page 490
73
Report of the National Commission to Review the Working of the Constitution Vo.I page 124.
74
1972 (2) SCC11 and 2002 (8) SCC106 at 123
75
Constituent Assembly Debates, Vol.IX,Pg.697
76
Reflections on Law and Society by Justice M.N.Rao.