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TAMIL NADU BACKWARD CLASSES COMMISSION

212, R K MUTT ROAD, MYLAPORE, CHENNAI 600 004

JUSTIFICATION OF RESERVATION
UNDER THE TAMIL NADU ACT 45 OF 1994
ON QUANTIFIABLE DATA

Submitted to
the Government of Tamil Nadu

On 8th July 2011

By

Justice Thiru.M.S.Janarthanam,
Judge, Madras High Court (Retd.),
Chairman, Tamil Nadu Backward Classes Commission
and Members of the Commission

Justification of Reservation under


the Tamil Nadu Act 45 of 1994 on Quantifiable Data

INDEX
Chapter

Description

Page No.

PUNCTILIOUS INTRODUCTION ...........

RESERVATION IN TAMIL NADU HISTORY OF EVENTS .

EVOLUTION OF THE CONSTITUTION AND DECLARATION OF


INDEPENDENCE

30

MARCH OF LAW IN THE MATTER OF RESERVATION ...

35

QUALITATIVE EXCLUSION OF CREAMY LAYER BASELESS

56

QUANTITATIVE RESTRICTION, WHETHER QUINTESSENTIAL? .

63

BACKWARD CLASSES WITHOUT UNTOUCHABILITY WERE KEPT IN


DARKNESS BY FOUNDING FATHERS OF INDEPENDENT INDIA

71

JUDICIAL INTERVENTION STUMBLING BLOCK IN CAPACITY


BUILDING OF BACKWARD CLASSES AND WEAKER SECTIONS OF
THE SOCIETY ...........

77

BASIC STRUCTURE THEORY A DANGLING SWORD ABOVE


THE HEADS OF BACKWARD CLASSES .................................

99

NEGLECT OF BACKWARD CLASSES IN APPOINTMENTS TO


HIGHER JUDICIARY.........

120

11

POLITICAL POWER DYNAMICS OF INDIA A CASE STUDY

127

12

RESERVATION UNDER THE TAMIL NADU ACT 45 OF 1994


EXISTENCE OF QUANTIFIABLE DATA JUSTIFIABILITY OR
OTHERWISE THEREOF

140

STRATEGY AND SYNERGY FOR INCLUSIVE GROWTH

180

Foreword
Abbreviations

9
10

13

APPENDICES
I

Statements for identifying Backward Classes based on the criteria evolved by


Thiru.J.A.Ambasankar, IAS (Retd.), Chairman of the Tamil Nadu Second
Backward Classes Commission ......................................................................

[A-1]

II

Statements for identifying Backward Classes based on certain minor deviations


made in the criteria evolved by the Chairman by the majority Members of the
Tamil Nadu Second Backward Classes Commission .

[A-26]

III

List of Backward Classes, Backward Classes of Muslims, Most Backward


Classes, Denotified Communities, Scheduled Castes and Scheduled Tribes in
the State of Tamil Nadu ..

[A-63]

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Justification of Reservation under


the Tamil Nadu Act 45 of 1994 on Quantifiable Data

ABBREVIATION

Art.

Article

BC

Backward Classes

DNC

Denotified Communities

G.O.

Government Order

GT

General Turn

LPG

Liberalisation, Privatisation and Globalisation

MBC

Most Backward Classes

NCERT

National Council of Educational Research and Training

NSSO

National Sample Survey Organisation

OBC

Other Backward Classes

OC

Open Competition / Other Castes (as the case may be)

O.M.

Office Memorandum

SC

Scheduled Castes

SEBC

Socially and Educationally Backward Classes

ST

Scheduled Tribes

SWOT

Strength, Weakness, Opportunity and Threat

Tamil Nadu Act 45 of 1994

Tamil Nadu Backward Classes, Scheduled Castes and


Scheduled Tribes (Reservation of seats in Educational
Institutions and of appointments or posts in the services
under the State) Act,1994

TNGG

Tamil Nadu Government Gazette

W.P.

Writ Petition

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Justification of Reservation under


the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1.

PUNCTILIOUS INTRODUCTION

1.1

The main thrust to be focused by this Commission, centers around the


justification of 69% quota of reservation made by the Tamil Nadu
Backward Classes, Scheduled Castes and Scheduled Tribes
(Reservation of seats in Educational Institutions and of appointments or
posts in the Services under the State) Act, 1993 [hereinafter Tamil Nadu
Act 45 of 1994], providing for reservation of 30% for Backward Classes,
20% for Most Backward Classes, 18% for Scheduled Castes and 1% for
Scheduled Tribes, totalling to 69%, on the quantifiable data furnished by
the State as per the mandate of the Supreme Court as well as non
provision of creamy layer exclusion thereto.

1.2

The State Government, as a matter of fact, supplied quantifiable data,


materials in abundance as existed when Tamil Nadu Act 45 of 1994
came into force.
The Tamil Nadu Second Backward Classes
Commission popularly known as Ambasankar Commission was set up
pursuant to the orders of the Supreme Court by Tamil Nadu Government
on
13th
December
1982
under
the
Chairmanship
of
Thiru J.A.Ambasankar, I.A.S,.(Retd.) former Chairman of Tamil Nadu
Public Service Commission with adequate number of Members to
conduct a Socio, Educational and Economic survey of the entire
populace of Tamil Nadu, with a view to find out and identify Social and
Educational backward class people entitled to enjoy the reservation
benefits for admission into educational institutions and professional
colleges and for appointments or posts in the services under the State.

1.3

The said Commission conducted an elaborate survey employing 25000


personnel and collected all relevant, requisite and necessary particulars
of 5 crores of people in the process of identifying Socially and
Educationally Backward Classes. The survey lasted for 2 years. The
Members of the said Commission did an intensive touring to all the
districts for more than 30 days and recorded the evidence of more than
2000 witnesses.

1.4

Two seminars were held, where Members and experts in various fields
met and exchange ideas about the identification of Backwardness and
how to improve the lot of unfortunate Backward Classes. The ideas
gathered by the census and survey was larger in number when
compared to the survey conducted by the Government of India. The said
Commission also collected population figures and the entire picture of
each and every member of all the inhabitant of nearly 5 crore. The
figures so collected were analysed and output tables were prepared and
placed in the hands of members.

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Justification of Reservation under


the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1.5

To determine the Social backwardness, exhaustive information about


one lakh of families in the State were collected through a random sample
survey for approximately 1% households in the State. More than 8.5
lakh of employees of Government / Local bodies and Public Sector
Undertakings were enumerated with full details of their job, their salary,
their qualification and the community to which they belong.

1.6

Survey also conducted in the field of school education. About 2000


schools furnished information about their students. All the 230 colleges
supplied information about those undergoing studies. The particulars
about the admission to professional colleges like Medicine / Engineering/
Law and Veterinary for the past three years prior to survey were also
collected.
The details of recruitment made by Tamil Nadu Public
Service Commission were gathered and enumerated. The Commission
thus collected exhaustive information on all issues, Social, Educational
not to speak of economic conditions of people.

1.7

The said Commission by conducting elaborate survey identified by


applying relevant criteria evolved in consultation with experts, the
Socially and Educationally Backward Classes castes and communities
prevailing in the State. The Commission estimated the Socially,
Educationally Backward Class population as 67%.

1.8

The colossus census survey was completed in 1985. The Tamil Nadu
Act 45 of 1994 came into existence subsequent to Indra Sawhney case
in 1994. The Reservation under the said act was to the tune of 30% to
BC, 20% to MBC/DNC totalling to 50%. The act further provided 18% to
SC and 1% to ST. The percentage of reservation provided to SC and ST
were in proportion to their population reflected by census figures
available then. The total reservation made to BC, MBC put together is
only 50% which is far below the socially and educationally backward
classes of citizens estimated at 67% by the Tamil Nadu Second
Backward Classes Commission. The reservation made to BC under the
Tamil Nadu Act 45 of 1994 is far below to their population which was
estimated as 67%. As such reservation made in favour of Backward
Classes by the Tamil Nadu Act 45 of 1994 cannot at all be stated as not
based on quantifiable data justifying their percentage of reservation.

1.9

The reservation made to SC and ST as 19% is also proportionate to their


population. In such circumstances, the reservation made by the Tamil
Nadu Act 45 of 1994 in favour of BC, MBC, SC and ST all put together
69% is fully justified taking into consideration the percentage of
population of those respective classes.

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Justification of Reservation under


the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1.10

This Commission not only scanned, sifted and analysed the quantifiable
data furnished by the State but also it went further and made an
elaborate study relatable to reservation pertaining to pre and post
Constitution periods.

1.11

In the pre Constitution period it is not as if reservation benefits were not


made available to the citizens of the State. The success of the Justice
Party in 1920 elections brought the subject of reservation in the newly
constituted Legislative Council. Then from 1921 onwards reservation
benefits were given to all castes and communities on the basis of six
divisions viz., (1) Brahmins (2) Non-Brahmin Hindus (3) Indian Christians
(4) Mohammedans (5) Europeans and Anglo Indians and (6) Others. Of
course, the benefits of reservation were not made on population basis.
As a matter of fact, the reservation benefits availed by Brahmins were
more in excess of their population. It is because of the challenge made
in the Superior Courts by the hierarchy of the higher castes, such
reservation benefits that were made, based on castes and communities,
was held to be not constitutionally valid and the court also struck down
the communal G.O. The communal G.O. was struck down by the High
Court, Chennai in 1951 and subsequently confirmed by the Supreme
Court. Since then, endless battles ensue before the Superior Courts of
jurisdiction relatable to reservation and such a battle even now persists in
the courts of law.

1.12

This Commission surveyed the various decisions emerged by the


Superior Courts of jurisdiction from 1950 to till now. Such an exercise
has been resorted to not without a purpose. Such an exercise resulted in
discussion on or about ten topics. The discussions made in ten topics
relatable to different facets of reservation rotate on the pivot of the topic
on Justification of 69% reservation made in the Tamil Nadu Act 45 of
1994 as mandated by the Supreme Court of India. The discussion so
made shows to the outside world as to how the power centres at various
levels executive, legislative, judicial and hierarchy of higher castes
made Herculean efforts to prevent the reservation benefits which the
weaker sections of the society viz., BC, SC and ST were enjoying - in
rather a bid to maintain the graded status among the various castes and
communities remaining unaltered.

1.13

The prolonged-endless legal battle prevented in a large measure


inclusive growth i.e. broad-based growth or otherwise pro-poor growth
a growth, which is broad based across sectors, and inclusive of the large
part of the countries poor, disadvantaged, deprived and excluded
sections of citizens.

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Justification of Reservation under


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1.14

Tamil Nadu is a pioneering State in any field of activity. It provided


reservation benefits as indicated earlier even prior to the commencement
of the Constitution.

1.15

Tamil Nadu faced repentant battles initiated by the hierarchy of higher


castes in courts of law in order to protect the weaker sections of the
society comprising of BC, SC and ST. Because of reservation benefits
having been conferred upon the downtrodden sections of the society
quite a long time before i.e. well over 100 years, education once
exclusive preserve and privilege of the hierarchy of higher caste spread
among the weaker sections in a large measure providing job
opportunities in all walks of life in this country as well as in foreign shores
improving their position and status in life.

1.16

Pertinent it is to refer to at this juncture, the observations made in the


Final Report dated 30.9.2006 of the Government of India Oversight
Committee on the implementation of the new policy of reservation in
higher educational institutions.
That expansion necessarily means dilution of excellence is clearly a myth
and is not substantiated by the actual ground experience of four decades of
implementation of OBC reservation. Four case studies, from Andhra
Pradesh, Karnataka, Kerala and Tamil Nadu show how they have
empowered the OBC in this manner. Their experience would put paid to the
argument that such a reservation would seriously impact quality. Our
experience in each state has shown that the members of the OBC can
bridge the gap between them and the general candidates, provided that they
are given the opportunity to compete on equal terms. The Committee feels
that the present opportunity would enable the country to make major strides
in building a just and inclusive society.

1.17

It is a matter of proud privilege to state that the State of Tamil Nadu


alone had been enjoying the benefit of 69% reservation due to the
legislation in the shape of Tamil Nadu Act 45 of 1994 which was brought
by this Government in 1993 with a lauded motive of protecting and
safeguarding the interest of the weaker sections of the society. The
timely action taken by the Government then, the weaker sections had
been enjoying the benefit of reservation all along for the past 17 years
without a stop improving their standard of life to an unimaginable extent
and they are to enjoy such benefits by the action expected to be taken by
the Government on the report submitted by this Commission.

1.18

The present exercise by this Commission is to find out as to whether it is


feasible to save and protect the constitutional validity of the said
enactment by justifying the 69% reservation made therein by the
analysis of the quantifiable data furnished by the Government and in
such process the Commission feels satisfied that such an exercise is
likely to yield dividends to maintain the 69% reservation to BC, MBC, SC
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Justification of Reservation under


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and ST in admission to educational institutions including professional


colleges and appointment or posts in the services under the State.
1.19

The Tamil Nadu Act 45 of 1994 has been in existence for seventeen
years since 1994. The quota for BC is 30% and the quota for MBC is
20%. All along these years, neither the BC nor the MBC availed of the
entirety of benefits intended for them, i.e., they have not reached up to
the total reservation made available for them. The nine-Judges Bench
decision in Indra Sawhney laid down the dictum that the line for the
application of creamy layer should be drawn in such a way that not even
a single individual belonging to such categories should be deprived of the
benefits of reservation intended for them. Therefore, the need for the
application of creamy layer exclusion in Tamil Nadu does not at all arise
for consideration. As such, the non-inclusion of creamy layer under
Tamil Nadu Act 45 of 1994 is of no consequence.

1.20

This Commission appended to the report at its fag end, the Chapter
under the caption Strategy and Synergy for Inclusive Growth. In that
Chapter among various things the introduction of reservation benefits in
admission into educational institutions as well as in the services of the
State to all the citizens of this State without any omission on proportional
equality basis going by the sayingthe state owes a duty to protect each
and every citizen is advocated for implementation. Reservation on the
proportional equality basis to all the citizens of this State as suggested by
this Commission, if implemented, it goes without saying that each and
every one in this State will enjoy the bliss of reservation with blithe, mirth
and happiness and live in an atmosphere of peace and tranquility without
any sort of animosity and tension, feeling that everyone is treated on an
equal footing in all activities relatable to the governance of the State.

1.21

This Commission fervently hopes that the Honble Chief Minister will
have no hesitation in accepting the report of this Commission and pass
necessary and requisite orders for maintaining the 69% reservation
prevailing in the State of Tamil Nadu.

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Justification of Reservation under


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2.

RESERVATION IN TAMIL NADU HISTORY OF EVENTS

1921 (1) The success of the Justice party in the 1920 Elections brought the
subject of reservation in the newly constituted Legislative Council. In
August 1921, a resolution was passed in the State Legislative Council
recommending to the Government that steps should be taken to
increase the proportion of posts in Government offices held by nonBrahmin Community. Instructions were accordingly issued in G.O.
No.613, Public Department, dated 16.9.1921 to all Heads of
Departments. To monitor the implementation of this order the Heads of
Departments, Collectors and District Judges were directed to submit to
Government Half-yearly returns showing the number of men newly
entertained in the permanent service during the Half-year under the
following Heads.
1.
2.
3.
4.
5.
6.

Brahmins
Non-Brahmin Hindus
Indian Christian
Muhammadans
Europeans and Anglo Indians and
Others

This came to be known as the first communal Government order.


1922 (1) The Government agreed to apply the principle of communal distribution
both at the time of initial recruitment and at every point at which men
were promoted wholly by selection and not by seniority. In order to
secure satisfactory information as to the representation of the various
communities in the different branches of the public service, an annual
return showing the extent to which each of the six main sub divisions
was represented in each department was ordered to be submitted to
Government in G.O. Ms. No.658, Public Department, dated 15.8.1922.
This was popularly known as the second communal Government order.
1925 (1) The Government appointed a committee in G.O. No.733, Public
Services, dated 3.8.1925 to enquire into and report on the working of
the system of communal representation under the Chairmanship of
Diwan Bahadur M. Krishnan Nayar with Rao Bahadur O. Tanikachala
Chettiar, Rao Bahadur A.S. Krishna Rao Pantulugaru, Thiru B.
Munusamy Naidu, Thiru Rao Bahadur T.M. Narasimha Charlu, Rao
Bahadur N.C. Raja, Thiru Abdullah Ghatala Sahib Bahadur and Thiru
Arputhaswamy Udaiyar as its members. Although the committee
functioned for about three years, it did not submit its report.

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Justification of Reservation under


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1927 (1) There was pressure all round for proportionate distribution of
Government appointments.
In G.O.Ms.No.1071, Public, dated
4.11.1927, the following distribution was ordered and it continued to be
in force till 1947.
1. Non Brahmins
2. Brahmins
3. Anglo-Indian and
Christians
4. Muhammadans
5. Depressed
Classes

5 out of 12
2 out of 12
2 Out of 12

Reservation (%)
41.67
16.67
16.67

Population (%)
72
3
4

2 out of 12
1 Out of 12

16.67
8.33

7
14

A cyclic order was also prescribed as follows:


Non Brahmin (Hindu)
Muhammadan
Non Brahmin (Hindu)
Anglo Indian or Christian
Brahmin
Non Brahmin (Hindu)
Others (Depressed Classes)
Non Brahmin (Hindu)
Muhammadan
Non Brahmin (Hindu)
Anglo Indian or Christian
Brahmin

1934 (1) The Madras Provincial Backward Classes League, an Association


representing the various Backward Hindu communities was founded in
1934. It pressed for a separate quota for the Backward members.
1947 (1) The Government passed an order in G.O. No.3437, Public Services,
dated 21.11.1947 giving separate representation to the Backward
Hindus, and also increased the then existing representation of 1 out of
12 allowed for Depressed classes. In the place of the earlier allocation
of the unit of 12 appointments a revised allocation of a unit of 14
appointments as shown below was ordered:1. Non-Brahmin Hindus
2. Backward Hindus
3. Brahmins
4. Harijans
5. Anglo Indians /
Indian Christians
6. Muslims

6 out of
2 out of
2 out of
2 out of
1 out of

14
14
14
14
14

1 out of 14

Reservation (%)
42.86
14.29
14.29
14.29
7.14

Population (%)
22
50
3
14
4

7.14

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Justification of Reservation under


the Tamil Nadu Act 45 of 1994 on Quantifiable Data

For the first time in the history of appointments to Public services the
group of Backward Hindus came to be recognised and a separate
allocation was made for them. The order of rotation was also changed
as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.

Non Brahmin Hindus


Harijans
Backward Hindus
Non Brahmin Hindus
Brahmins
Non Brahmin Hindus
Muslims
Non Brahmin Hindus
Anglo Indians / Indian Christians
Non Brahmin Hindus
Harijans
Non Brahmin Hindus
Brahmins
Backward Hindus

1950 (1) The Constitution as originally passed contained Article 16(4). Soon
after the Constitution came into force the Government of India
suggested to the State Government that the existing system of
recruitment for Public services on communal basis should be abrogated
at an early date as it was inconsistent with the letter and spirit of Article
16 of the Constitution and that suitable provisions within the meaning of
Article 16(4) and Article 335 of the Constitution should be made for
protecting the interests of the weaker sections of the Society. There
were also objections from the public to the communal system followed
in the matter of admission of students to the Professional Colleges.
1951 (1) The year 1951 marks the watershed in the history of Backward Class
movement. When the Constitution of India came into being there was
opposition to the application of the communal Government order. The
matter was taken up to Supreme court, in the case of educational
institutions in Champakam Dorairajan Vs State of Madras, similarly in
Venkataramana Vs State of Madras, the same matter was agitated in
respect of application to appointments in Public services. In both the
cases Supreme Court struck down the communal Government order as
unconstitutional. Following this there were State-wide protests by
various communities included in the Backward Classes list. In Madras
City Thanthai Periyar organised mass processions and meetings and
observed Communal Government Order day. These protests forced
the State Government to take up the matter with the Centre. This
resulted in the first amendment to the constitution introducing Article
15(4).

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Justification of Reservation under


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The Supreme Court judgement in Venkatramana Vs State of Madras


made the Government to revise the then existing rule relating to
representation of communities in public services.
Social and
Educational backwardness alone became the criteria for reservation in
public services. Under the revised system introduced in G.O. No.2432,
Public (Services), dated 27.9.1951, in a cycle of 20 appointments 3
were reserved for Scheduled Castes and Scheduled Tribes, 5 for
Backward Classes and rest were filled in by open competition. A
certain sections of Mohammedans and Anglo Indians and Christians
were included among the Backward Classes. This amounts to a
reservation of,Scheduled Castes and Scheduled Tribes
Backward Classes
Open Competition

..
..
..

15%
25%
60%

The cycle of 20 vacancies for regulating the order of recruitment was


laid down as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.

Open competition
Scheduled Castes and Scheduled Tribes
Open competition
Backward Classes
Open competition
Open competition
Backward Classes
Open competition
Scheduled Castes and Schedule Tribes
Open competition
Open competition
Backward Classes
Open competition
Backward Classes
Open competition
Scheduled Castes and Schedule Tribes
Open competition
Open competition
Backward Classes
Open competition

If qualified and suitable candidates were not available among the


Scheduled Castes and Scheduled Tribes and Backward Classes in
their respective turns they simply lapsed. Candidates belonging to
Scheduled Castes and Scheduled Tribes and Backward Classes were
also eligible for selection against the open competition turns on the
basis of merit without prejudice to the turns reserved for them.

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Justification of Reservation under


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1954 (1) At the time of State Re-organisations, Kanniyakumari District and


Shencottah Taluk of Tirunelveli District were added into Tamil Nadu
from Travancore Cochin State. The concessions enjoyed by the
following communities in Travancore Cochin State were preserved and
continued to those communities in Kanniyakumari District and
Shencottah Taluk. Hence a separate list was maintained for these
transferred territories and their special identity was maintained.
(1) Alwar
(2) Arayar (Nulayar)
(3) Aryavathi
(4) Chavalakkaran
(5) Chettu or Chetty
(6) Ezhuthachan
(7) Ezhavathy
(8) Ezhava
(9) Kalari krup (kalari Panicker)
(10) Kudumbi
(11)Naikkan
(12)Odarn
(13)Perumkollar
(14) Sakkaravar (Kavathi)
(15)Tholkollan
(16)Veerasaiva
(17)Veluthodathu Nair
(18) Krishnanvaka
(19)Latin Catholics
(20)C.S.I. formerly S.I.U.C.

The following communities were treated as Backward Classes only for


the purpose of reservation of seats in educational institutions and for
the posts in public services:(1) Paravan Christian in Kanniyakumari District and
Shencottah Taluk of Tirunelveli District.
(2) Latin Catholics
(3) Krishnavaka
(4) C.S.I.formerly S.I.U.C.

After the reorganisation of the State and taking into account the
population of Scheduled Castes and Scheduled Tribes the reservation
of appointments was modified in G.O. Ms. No.2643, Public (Services),
dated 30.12.1954 as follows:Scheduled Castes and Scheduled Tribes
Backward Classes
Open Competition

..
..
..

16%
25%
59%

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Justification of Reservation under


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This led to inclusion of five more turns as follows:


21.
22.
23.
24.
25.

Open Competition
Scheduled Castes and Scheduled Tribes
Open Competition
Backward Classes
Open Competition

1957 (1) The present list of Most Backward Classes owes its origin to a
representation made in 1954 by the Tamil Nadu Washermen
Federation to the then Chief Minister, Thiru K. Kamaraj. The request of
the Washermen Federation was that the facilities extended to them as a
Backward Class were not adequate and that, they should be included in
the list of Scheduled Castes. As Washermen were not considered in the
State as absolutely untouchable, the Government did not think it proper
to their request. The Chief Minister desired that though the caste may
not be included in the Schedule, their request for concessions on a par
with the Scheduled Castes should be examined and he also directed
that there may be several Backward Castes who may be in a similar
position and ordered the various departments concerned to report on
the subject. On the basis of the investigation so ordered in 1954, a list
of castes which can be treated as More Backward among the
Backward Classes was prepared. Support to this proposal came from
the report of the Backward Classes Commission, published in 1956
(Khalelkars Commission), which identified certain castes as more
Backward and suggested that preference may be given to them over
other castes in the list of Backward Classes for the grant of educational
concessions, etc. The Government accordingly issued directions in
G.O. Ms. No.353, Industries, Labour and Co-operation, dated
31.1.1957 recognising a list of Most Backward Classes for whom
educational concessions alone need be granted for the present as
admissible to Scheduled Castes from the academic year 1957-58. The
number of communities in the list of Most Backward Classes at that
time was 58.
1969 (1)

The Government of Tamil Nadu constituted the First Backward Classes


Commission in the year 1969 under the Chairmanship of
Thiru.A.N.Sattanathan to recommend for the betterment of Backward
Classes in Education, in Employment under Government and in several
fields of economic activities.

1971 (1) The major recommendation of the First Backward Classes Commission
was enhancement of quantum of reservation for Backward Classes
from 25% to 33%.

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Justification of Reservation under


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(2) The High Level Committee constituted by Government of Tamil Nadu to


review the quantum of reservation for Scheduled Castes and
Scheduled Tribes recommended that the reservation to Scheduled
Castes and Scheduled Tribes should be raised from 16% to 24%.
(3) The Government, after examining the recommendation of the
Commission as well as the recommendation of the High Level
Committee revised the percentage of reservation in the year 1971 as
follows:
Scheduled Castes and Scheduled Tribes
Backward Classes
Open Competition

..
..
..

18%
31%
51%

Revised order of rotation of hundred turns was also prescribed, of


which eighteen turns were earmarked for Scheduled Castes and
Scheduled Tribes and thirty one turns for Backward Classes.
1972 (1) The existing list of Backward Classes in the State of Tamil Nadu owes
its origin to the list of Backward Classes as approved by the
Government in 1972, which was an outcome of the recommendations
of the First Backward Classes Commission. At the time of formation of
the above Commission, there were three lists relating to Backward
Classes with a number of inconsistencies separately maintained by
three departments viz., the Backward Classes Department (for the
purpose of award of Scholarship etc.), the Education Department (for
the purpose of grant of fee concessions under 92 Madras Educational
Rules) and the Tamil Nadu Public Service Commission (for the
Recruitment to Public Services).
The Sattanathan Commission decided to do away with the practice of
maintaining separate list by different authorities and made the
Backward Classes Department, as the only single authority for the
maintenance of the list of Backward Classes in future and made
recommendation in this regard. The list of Backward Classes finally
drawn by the Commission had undergone the following stages of
elimination:
1. Deletion of Communities which were figuring in the list of Scheduled
Castes / Scheduled Tribes.
2. Deletion of Communities which were not found in the State of Tamil
Nadu.
3. Elimination of redundancies and repetitions and giving alternative
descriptions of certain communities.
4. Amplifying the description of certain communities; and
5. Clubbing together certain allied communities.

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Based on the recommendation of the above Commission, the


Government included certain communities in the list of Backward
Classes from time to time. A consolidated list incorporating these
communities was issued in G.O. Ms. No.437, Social Welfare
Department, dated 15.5.1972. Annexure III of the said G.O. contained
39 communities in the list of Most Backward Classes. (Annexure I listed
the Backward Classes throughout the State; Annexure II listed
Backward Classes in Kanyakumar district and Shencottah taluk of
Tirunelveli district). The revised list was given effect from the academic
year 1971 -1972 for the purpose of Educational and other concessions
and reservation of seats in educational institutions. For the purpose of
reservation in recruitment to Public Services, the list was given effect
from the date of the order.
The separate list of Backward Classes maintained from 1954 for the
communities in Kanyakumari district and Shencottah taluk of Tirunelveli
district was merged with the Backward Classes throughout State with
specific mention about the area/territorial restriction.

1972 (1) After this, the Government declared more and more communities as
Backward, either on the basis of the observations of the Sattanathan
Commission or on the strength of the reports submitted by the District
to
Collectors or studies made by other Government Agencies between the
period from 1972 to 1979. The details of Communities so added to the
1979
list of Backward Classes are given below:
(1) Savalakaran
(2) Pannirandam Chettiar or Uttama Chettiar
(3) Vallambar
(4) Yavana
(5) Salivagana
(6) Nanjil Mudali
(7) Urudu speaking Labbais
(8) Dekkani Muslims
(9) Kongu Vellalar
(10)Karuneegar
(11)Sozhia Vellalar
(12)Kathikarar
(13) Ahavar and Alavan
(14)Christian converts from Mukkuvar, Mukayar, Paravar
and Meenavar communities
(15)Dasapalanjika of Coimbatore and Nilgiri Districts
(entry relating to Kannada Saineegar)

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(2) Subsequently the Government included the following communities in


the list of Backward Classes.
(1) Gavara (entry relating to Gavarai and Vadugar)
(2) Mutharaiyar (entry relating to Muthuraja)
(3) Nangudi Vellalar

(3) The Sattanathan Commission, among other things, observed that the
more affluent and advanced sections of Backward Classes themselves
monopolized all concessions. It suggested superimposition of an annual
income limit of Rs.9,000/- for eligibility to get the concession. The
Government superimposed the income limit of Rs.9,000/- per annum to
become eligible for the Backward Classes concessions including
reservation in G.O. Ms. No.1156, Social Welfare, dated 2.7.1979.
1980 (1) Though the High Court of Madras dismissed the Writ Petition
challenging the Government order prescribing annual income limit for
availing the Backward Classes concessions, the Government reviewed
its policy in consultation with all parties and removed this income limit in
G.O. Ms. No.72, Social Welfare, dated 1.2.1980.
(2) While removing the income ceiling, an upward reservation for Backward
Classes from 31% to 50% was ordered in G.O. Ms. No.73, Social
Welfare, dated 1.2.1980 taking into account the addition of certain
communities in the list of Backward Classes and the total population of
Backward Classes. The total reservation comes to 68% as follows:
Scheduled Castes and Scheduled Tribes
Backward Classes
Open Competition

..
..
..

18%
50%
32%

(3) The Government ordered the inclusion of Rawther and Marakkayar in


the entry Labbais in the list of Backward Classes.
1983 (1) The Government orders issued in G.O. Ms. No.72 and 73, Social
Welfare Department, dated 1.2.1980 were the subject matter of
W.P.Nos. 4995-97/1980 and 402/1981 in the Supreme Court of India. In
conformity with the orders of the Supreme Court dated 14.10.1982 in
those writ petitions, the Second Backward Classes Commission was
constituted in G.O. Ms. No.3078, Social Welfare, dated 13.12.1982
under the Chairmanship of Thiru J.A. Ambasankar, I.A.S.(Retired) for
reviewing the existing list of Backward Classes and for recommending
measures for their upliftment.

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The criterion followed by the Commission for determining the social and
educational backwardness were:
A.

SOCIAL BACKWARDNESS

(i) Caste / Class accepted as socially backward.


(ii) Occupational backwardness Caste / Class which mainly depends on manual
labour or unclean or degrading occupation for its livelihood.
Or
Caste / Class whose percentage of women engaged in manual labour is more
than that of the State by atleast 10% of it.
Or
Caste / Class whose percentage of children employed is more than that of the
State by atleast 10% of it.
(iii) Poverty Caste / Class whose percentage of households living in Kutcha houses
is more than that of the State by atleast 10% of it.
Or
Caste / Class whose percentage of households taking subsistence loans is more
than that of the State by atleast 10% of it.
Or
Caste / Class whose percentage of households getting loans from money
lenders / pawnbrokers is more than that of the State by atleast 10% of it.
B. EDUCATIONAL BACKWARDNESS
(i) Caste / Class whose percentage of population who have passed only the 10th
Standard or its equivalent is less than that of the State by atleast 10% of it.
(ii) Caste / Class whose percentage of population who have passed the Higher
Secondary or its equivalent and above is less than that of the State by atleast
10% of it.
(iii) Extent of Educational backwardness:
Caste / Class whose percentage of illiteracy is more than that of the State by
atleast 10% of it.
Or
Caste / Class whose percentage of dropout is more than that of the State by
atleast 10% of it.
Nine points at the rate of three for each indicator were awarded for social
backwardness while only six points at the rate of two for each indicator are awarded
for educational backwardness. A Caste / Class in the list of Backward Classes was
considered as socially and educationally Backward and eligible for retention in the list
only if it scored seven out of fifteen points of which atleast two points under
educational backwardness. Similarly, the communities in the list of Forward
Communities were recommended for inclusion in the list of Backward Classes if they
secured a minimum of six points of which atleast two points under educational
backwardness.

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1983 (1) The Government declared the Christian Nadar, Christian Shanar and
Christian Gramini as Backward Classes.
1985 (1) The Ambasankar Commission submitted its report to Government on
28.2.1985. The Commission recommended for deletion of 24
communities from the list of Backward Classes existed at that time and
inclusion of 29 communities as socially and educationally Backward
Classes. The Government after considering the recommendation of the
above Commission, in the light of the guidelines given by the Supreme
Court in Vasantha Kumar and Others Versus State of Karnataka
(1985 I SCALE 832) and decided to accept the recommendation of the
Commission in regard to the inclusion of new communities in the list of
Backward Classes. Accordingly the Government included the following
communities in the list of Backward Classes in the orders issued in
G.O. Ms. No.1564, Social Welfare Department, dated 30.7.1985:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)

Lingayat (Jangama)
Kasukkara Chettiat
Pulavar (Coimbatore District)
Mooppan
Velar (kulalar)
Urikkara Nayakkar
Syed
Sheik
Ansar
Kaniyala Vellalar
Moondru Mandai Enbathu Nalu (84) Ur-Sozhia Vellalar
Muga Vellalar
Sundaram Chetty
Kongu Vaishnava
Agaram Vellan Chettiar
Ayira Vaisyar
Karpoora Chettiar
Oottru Valanattu Vellalar
Paiyur Kotta Vellalar
Kudikara Vellalar
Chowdry
Thoraiyar
Kannadiya Naidu
Pooluva Gounder
Gounder
O.P.S. Vellalar
Kallarkula Thondaman
Ukkirakula Kshatriya Naicker
Podikkara Vellalar

As regards the deletion of 24 communities from the list of Backward


Classes, the Government took into account the Class poverty of each
community, their way of life, their standard of living, their habits
and customs and their place in the social hierarchy in the State and
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Justification of Reservation under


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observed no justification for deletion of these 24 communities and that


they should continue be treated as Backward Classes, giving due
weightage to all these factors.
(2) The total population of Backward Classes as determined by the Tamil
Nadu Second Backward Classes Commission was approximately 67%
of the total population of the State. The Majority Report of the
Commission recommended that in view of the above percentage, the
existing reservation of 50% for Backward Classes may be continued
and needs no modification. The Government accepted the above
recommendation and issued orders for the continuance of 68%
reservation in the State in G.O. Ms. No.1565, Social Welfare, dated
30.7.1985.
(3) The Government also approved the list of Most Backward Classes in
G.O. Ms. No.1566, Social Welfare Department, dated 30.7.1985 and list
of Denotified Communities in G.O. Ms. No.1567, Social Welfare
Department, dated 30.7.1985.
1986 (1) The Christian converts from the Hindu Backward Class Communities
represented to the Government to extend all the concessions granted to
the Hindu Community treating them as Backward, not withstanding their
conversion as Christians, on the ground that these Christian
communities also suffer from all social disabilities as Hindu
Communities in spite of their conversion and that it is not the religion
but the social and educational backwardness that should be the basis
for inclusion of any communities in the list of Backward Classes. The
majority members of the Tamil Nadu Second Backward Classes
Commission recommended that when once the various Hindu
Backward Class Communities are listed, their respective converts to
other religions also be included in the list of Backward Classes as in the
case of Christian Nadar, Christian Shanars, Christian Gramini, Christian
Paravar etc. The Government, after carefully examining the
representations with reference to the social status and educational
backwardness, issued orders in G.O. Ms. No.558, Social Welfare
Department, dated 24.2.1986 declaring the Christian converts from any
Hindu community included in the list of Backward Classes as Backward
Classes. The above orders were given effect from the academic year
1986 -1987 for the purpose of Educational and other concessions and
reservation of seats in educational institutions and from the date of
issue of this order in regard to reservation in recruitment to Public
Services.

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1989 (1) The issues relating to reservations have been the subject of enquiry by
the Backward Classes Commissions appointed in this State. The First
Backward Classes Commission (Sattanathan Commission) as well as
the Second Backward Classes Commission (Ambasankar Commission)
clearly brought out in its report that several communities among those
included in the list of Backward Classes did not receive their due share
in educational and employment opportunities while a small number of
communities in the list of Backward Classes benefited to a relatively
large extent. The Most Backward Classes and the Denotified
Communities who constitute a large proportion in the population of
Backward Classes made representations for special reservation to Most
Backward Classes and Denotified Communities amongst Backward
Classes. Government issued orders in G.O. Ms. No.242, Backward
Classes Welfare, Nutritious Meal Programme and Social Welfare, dated
28.3.1989 providing 20% reservation for Most Backward Classes and
Denotified Communities from out of the 50% reservation then available
for all Backward Classes leaving the remaining 30% for Backward
Classes. The reservation was distributed among the various categories
as given below:
Scheduled Castes and Scheduled Tribes
Most Backward Classes and Denotified Communities
Backward Classes
Open Competition

..
..
..
..

18%
20%
30%
32%

(2) The Christian converts from Parvatha Rajakulam, Meenavar,


Pattanavar and Sembadavar were included in the list of Most Backward
Classes (G.O. Ms. No.242, Backward Classes Welfare, Nutritious Meal
Programme and Social Welfare, dated 28.3.1989).
(3) Representations have been received from Paravar Christians that they
also belong to Fishermen Community and hence they may be treated
as Most Backward Classes as in the case of Christian converts from
Parvatha Rajakulam, Meenavar, Pattanavar and Sembadavar. The
Government accepted the above demand and declared the Paravar
Christians (except in Kanniyakumari District and Shencottah Taluk of
Tiurnelveli District) as Most Backward Classes in Government Letter
No.42124/BCC/89-6, dated14.9.1989.
(4) The Government, after examining the request received from Mukkuvar
or Mukayar community (Fishermen Community) issued orders in G.O.
Ms. No.929, Backward Classes Welfare, Nutritious Meal Programme
and Social Welfare, dated 7.11.1989 for the inclusion of the above
community and their converts to Christianity in the list of Most
Backward Classes.
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Justification of Reservation under


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1990 (1) Based on the directions of High Court in W.A.No.1692 of 1987 the
Government issued orders in G.O. Ms. No.1090, Adi dravidar and
Tribal Welfare Department, dated 22.6.90 providing 1% separate
reservation for Scheduled Tribes taken from 32% reservation then
available for open Competition. Thus the 69% reservation is in vogue
in the State since 1990.
1991 (1) The Government issued orders in G.O. Ms. No.20, Backward Classes
and Most Backward Classes Welfare Department, dated 25.1.1991 and
included the community Pannaiyar in the list of Most Backward
Classes.
1992 (1) The Constitution Bench of the Supreme Court delivered its judgment on
the 16.11.1992 in Indra Sawhney Vs Union of India (AIR 1993 SC
477), popularly known as Mandal Commission cases, holding that the
total reservation under Article 16(4) should not exceed 50 percent.
(2) The Review Petition and the Clarificatory Application filed by this
Government on the above judgment were rejected by the Supreme
Court.
1993 (1) The Supreme Court of India, in its judgement in Mandal Commission
cases, directed, among other things, that the Government of India and
the State Governments have the power to and ought to create a
permanent mechanism in the nature of a Commission for examining
requests of inclusion and complaints of over-inclusion or non-inclusion
in the list of Other Backward Classes and to advice the Government,
which advice shall ordinarily be binding upon the Government. The
Supreme Court also held that the body so created can also be
consulted in the matter of periodic revision of list of Other Backward
Classes.
(2) In pursuance of the above direction of the Supreme Court, the
Government constituted a permanent Commission termed as Tamil
Nadu Backward Classes Commission under Article 16(4) read with
Article 340 of the Constitution of India, headed by retired Judge of High
Court as Chairman with eight Members, in G.O. Ms. No.9, Backward
Classes and Most Backward Classes Welfare Department, dated
15.3.1993.
The terms of reference of the above Commission was as follows:
(i) The Commission shall entertain, examine and recommend upon requests for
inclusion and complaints of over inclusion and under inclusion in the lists of
Backward Classes / Most Backward Classes.

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Justification of Reservation under


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(ii) Periodic revision of lists of Backward Classes / Most Backward Classes in the
State as and when decided.
(iii) The Commission shall base its recommendations in the light of the provision
contained in Art.16(4) read with relevant provisions of the Constitution of India
and the various decisions of Supreme Court bearing on the subject.

(3) When the issue of admission to educational institutions for the


academic year 1993-94 came up before the High Court of Madras, the
High Court permitted the Government to continue its reservation policy
as hitherto followed i.e. 69% during the academic year 1993-94. At the
same time the Court also directed that the quantum of reservation
should be brought down to 50% during the next academic year 199495. The Voice (Consumer Care) Council filed a Special Leave Petition
(SLP .No.13526/1993) before the Supreme Court against the Judgment
of the High Court of Madras permitting the State Government to
continue the 69% reservation policy during the academic year 1993-94.
The Government of Tamil Nadu have also filed Special Leave Petitions
(SLP.Nos.16534-40/1993) against the judgment of the High Court,
Madras directing the Government to bring down the reservation to 50%
before the academic year 1994-95, in order that the present reservation
policy of the State Government should be reaffirmed so as to ensure
the continued advancement of the Backward Classes. The Supreme
Court of India passed an interim order reiterating that the reservation
should not exceed 50% in the matter of admission to educational
institution.

1994 (1) The entire State of Tamil Nadu was deeply disturbed by the far
reaching implications of the Supreme Court judgment restricting the
quantum of Reservation to 50%. To tide over the crisis, the Tamil Nadu
Legislative Assembly, in its session on 31.12.1993, passed
unanimously the Tamil Nadu Backward Classes, Scheduled Castes and
Scheduled Tribes (Reservation of seats in Educational Institutions and
of appointments or posts in the services under the State) Bill, 1993
seeking to retain 69% reservation, taking recourse to Article 31-C of the
Constitution of India. The President of India gave his assent to the
above Bill on 19.7.1994 and the Bill became an Act (Tamil Nadu Act 45
of 1994). The Tamil Nadu Act 45 of 1994 has been included in the
Ninth Schedule to the Constitution on 31.8.1994 by the Constitution
(Seventy Sixth Amendment) Act, 1994 enacted by the Parliament to get
protection under Article 31-B of the Constitution.

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(2) Consequent to the assent given by His Excellency the President of


India to the Tamil Nadu Act 45 of 1994, the Government notified the
lists of classes of citizens of socially and educationally backward
including the Most Backward Classes and the Denotified Communities
under clause (a) of Section 3 of the said Act in G.O.Ms.No.28,
Backward Classes and Most Backward Classes Welfare Department
dated 19.7.1994. (Notification No.II(1)/BCMBC/62(a)/94 dated
19.7.1994.)
(3) One Thiru .S.P. Sampath Kumar filed a Writ Petition in the Supreme
Court of India (W.P. No.454 of 1994) challenging the validity of the
Tamil Nadu Act 45 of 1994. The petitioner also filed a prayer for stay
on the implementation of the Tamil Nadu Act. Some other Writ
Petitions were also filed before the Supreme Court on the same ground.
The Writ Petitions challenging the validity of the Tamil Nadu Act and
praying stay of the operation of the Act, the Contempt Petitions and the
Special Leave Petitions were taken up by the Supreme Court for
consideration on 1.8.1994. The Supreme Court admitted the Writ
Petitions and referred them to the Constitution Bench. However, the
Supreme Court did not stay for the operation of the Act.
(4) Subsequently, the Supreme Court in its interim orders dated 18.8.1994
directed the Government of Tamil Nadu to create additional seats in
professional Colleges to accommodate the students who would have
been selected if 50% rule of reservation was followed instead of 69%.
1995 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 1995-96. The order of Supreme Court
was communicated to the concerned departments for compliance.
1996 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 1996-97. The order of Supreme Court
was communicated to the concerned departments for compliance.
1997 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 1997-98. The order of Supreme Court
was communicated to the concerned departments for compliance.

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Justification of Reservation under


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(2) Consequent on the bifurcation / trifurcation and renaming of certain


Districts, Government published notification under clause (a) of section
3 of Tamil Nadu Act 45 of 1994 amending the BC & MBC Welfare
Department Notification No.II(1)/BCMBC/62(a)/94 Part II Section 1,
Tamil Nadu Government Gazette Extraordinary dated 19.7.1994 in
relation to name of certain Districts in G.O.Ms.No.100, BC & MBC
Welfare (BCC) Department dated 24.11.1997.
1998 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 1998-99. The order of Supreme Court
was communicated to the concerned departments for compliance.
1999 (1)

In connection with the case challenging the quantum of reservation


made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 1999-2000. The order of Supreme
Court was communicated to the concerned departments for
compliance.

2000 (1)

In connection with the case challenging the quantum of reservation


made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2000 2001. The order of Supreme
Court was communicated to the concerned departments for
compliance.

2001 (1)

In connection with the case challenging the quantum of reservation


made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2001 2002. The order of Supreme
Court was communicated to the concerned departments for
compliance.

2002 (1)

In connection with the case challenging the quantum of reservation


made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2002 2003. The order of Supreme
Court was communicated to the concerned departments for
compliance.

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Justification of Reservation under


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2003 (1)

In connection with the case challenging the quantum of reservation


made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2003 2004. The order of Supreme
Court was communicated to the concerned departments for
compliance.

2004 (1)

In connection with the case challenging the quantum of reservation


made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2004 2005. The order of Supreme
Court was communicated to the concerned departments for
compliance.

2005 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2005 2006. The order of Supreme
Court was communicated to the concerned departments for
compliance.
(2) Consequent on the bifurcation of Dharmapuri District and Krishnagiri
District in G.O.Ms.No.570, Revenue Department, dated 20.11.2003,
Government published notification amending the BC and MBC Welfare
notification No.II(1)/BCMBC/62(a)/94 Part II Section1, Tamil Nadu
Government Gazatte Extraordinary dated 19.7.1994 in relation to
Dharmapuri District in G.O.Ms.No.78, BC,MBC & MW Department,
dated 4.6.2005.
2006 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2006 2007. The order of Supreme
Court was communicated to the concerned departments for
compliance.
(2) The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled
Tribes (Reservation of Seats in Private Educational Institutions) Act,
2006 to provide for reservation of seats in private educational
institutions in the State for the Backward Classes of citizens and for
persons belonging to the Scheduled Castes and the Scheduled Tribes
in the State of Tamil Nadu [Tamil Nadu Act 12 of 2006] was enacted.

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Justification of Reservation under


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(3) While reconstituting the Tamil Nadu Backward Classes Commission


vide G.O.Ms.No.30, BC,MBC & MW department, dated 11.7.2006, the
following terms of reference was issued:
(i) The Commission shall entertain, examine and recommend upon requests for
inclusion and complaints of over-inclusion and under-inclusion in the lists of
Backward Classes/Most Backward Classes.
(ii) Periodic revision of list of Backward Classes and Most Backward Classes in
this State as and when decided.
(iii) The Commission shall base its recommendations in the light of provision
contained in Article 16(4) read with relevant provisions of the Constitution of
India and the various decisions of the Supreme Court bearing on the subject.
(iv) The Commission shall make recommendations on improved reservation for
Christians, Muslims and other Minorities based on their social and educational
backwardness.
(v) The Commission shall examine and make recommendations on any other
matter relating to Backward Classes that may be referred to it by Government
from time to time.

2007 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2007 2008. The order of Supreme
Court was communicated to the concerned departments for
compliance.
2008 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2008 2009. The order of Supreme
Court was communicated to the concerned departments for
compliance.
(2) The Tamil Nadu Backward Class Christians and Backward Class
Muslims (Reservation of seats in Educational Institutions, including
Private Educational Institutions and of Appointments or Posts in the
Services under the State) Act, 2007 [Tamil Nadu Act 33 of 2007]
providing 3.5% reservation each to Backward Class Christians and
Backward Class Muslims from out of 30% reservation for Backward
Classes was legislated.
(3) Consequent to the 3.5% reservation each ordered for Backward Class
Muslims and Backward Class Christians, in supersession of the

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Notification No.11 (1)/BCMBC/62(a)/94 dated 19.7.1994 of the BC and


MBC Welfare Department, the Government notified the list of Backward
Classes, Backward Class Christians, Backward Class Muslims, Most
Backward Classes and Denotified Communities in G.O.Ms.No.85, BC,
MBC and MW Department dated 29.7.2008 [Notification No.II(1)
/BCMBCMW/36(a)/2008 dated 5.9.2008]
(4) Consequently to above enactment, the 100 points roster maintained for
appointments was modified as 200 points roster. (G.O.Ms.No.241,
P&AR dept., dated 29.10.2007, G.O.Ms.No.101, P&AR, dated
30.5.2008, Govt. Lr No.40321/S/2008, P&AR, dated 29.7.2008)

(5) The list notified on 5.9.2008 was amended for deletion of Kurumba
Gounder community entered as a sub-sect of Kongu Vellalar
community in the Backward Classes, and inclusion of the community as
a sub-sect of Kurumba community in the Most Backward Classes.
(G.O.Ms.No.96, BC,MBC&MW department, dated 8.9.2008 and TNGG
(Extraordinary) No.II(1)/BCMBCMW/ 41(a)/2008 dated 18.9.2008).
(6) The list notified on 5.9.2008 was further amended in TNGG Notification
No.II(1)/BCMBCMW/41(b)/2008 dated 19.9.2008. The following
communities were included in the Backward Classes:
(1) Vallanattu Chettiar.
(2) Cherakula Vellalar.
(3) Pandia Vellalar.

The following Backward Classes were notified as Most Backward


Classes:
(1)
(2)
(3)
(4)
(5)
(6)

Arayar (in Kanniyakumari District)


Thoraiyar (Nilgiris)
Thoraiyar (Plains)
Panisaivan / Panisivan
Kanniyakumari District Latin Catholic Christians Vannar
Erragollar (as a subsect of Thottia Naicker)

(G.O.Ms.No.97, BC,MBC & MW Department dated11.9.2008)

2009 (1) Accepting the request made by the representatives of Christian


communities, the 3.5% reservation provided to the Backward Class
Christians was withdrawn and they are allowed to avail the benefit from
the 26.5% reservation available for Backward Classes other than
Muslims. (Tamil Nadu Act No. 51 of 2008). Consequently, necessary
changes in the 200 points roster for appointments were modified in
G.O.Ms.206, P&AR, dated 6.11.2008.

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(2) In connection with the cases challenging the quantum of reservation


made under the Tamil Nadu Act 45 of 1994, The Supreme Court
passed the interim orders for the creation of additional seats in the
Professional Colleges for the academic year 20092010. The Orders of
Supreme Court was communicated to the concerned departments for
implementation.
(3) The Tamil Nadu Arunthathiyars (Special Reservation of seats in
Educational Institutions including Private Educational Institutions and of
appointments or posts in the Services under the State within the
Reservation for the Scheduled Castes) Act, 2009 [Tamil Nadu Act 4 of
2009] was enacted to provide for reservation to seven castes in
Scheduled Castes list, namely Arunthathiyar, Chakkilian, Madhari,
Madiga, Thoti, Pagadai and Adi-Andhra, on preferential basis to an
extent of sixteen percent from out of the reservation available for the
Scheduled Castes in admission to educational institutions including
private educational institutions and for appointments to the Public
Services. The act came into force on 24.4.2009. Accordingly, the 200
points roster for appointments was modified (G.O.Ms.No.65, P&AR,
dated 27.5.2009).
(4) The list of Backward Classes was amended further as a consequence
of withdrawal of separate quota of 3.5% provided to the Backward
Class Christians was withdrawn (G.O.Ms.No.37, BC,MBC & MW
Department, dated 21.5.2009).
(5) The list of Most Backward Classes was again amended to include
thereunder the Paravar Converts to Christianity of Kanniyakumari
district and Shencottah Taluk of Tirunelveli district. (G.O.Ms.No.98,
BC,MBC & MW Department dated 5.11.2009)
(6) The Government ordered that the status of persons as Backward
Classes, Most Backward Classes and Denotified Communities with
area / territorial restrictions should be the same even if such persons
migrate out of the notified area / territory, for education, employment or
otherwise. (G.O.Ms.No.95, BC,MBC &MW dept, dated 28.10.2009)
2010 (1) In connection with the cases challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, The Supreme Court
passed the interim orders for the creation of additional seats in the
Professional Colleges for the academic year 20092010. The Orders of
Supreme Court was communicated to the concerned departments for
implementation.

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(2) The Writ Petitions challenging the validity of quantum of reservation


provided for in the Tamil Nadu Act 45 of 1994 were disposed of by the
Supreme Court, vide order dated 13.7.2010, with the following
directions:Subsequent to the filing of the above Writ Petitions, Acticles 15 and 16 of
the Constitution have been amended vide Constitution (Ninety-third
Amendment) Act, 2005, and Constitution (Eighty-first Amendment) Act,
2000, respectively, which Amendment Acts have been the subject-matter
of subsequent decisions of this Court in the cases of M.Nagaraj & Ors. Vs.
Union of India & Ors [2006 (8) S.C.C. 212] and Ashoka Kumar Thakur Vs.
Union of India & Ors. [2008 (6) S.C.C. 1], in which, inter ailia, it has been
laid down that if a State wants to exceed fifty percent reservation, then it is
required to base its decision on the quantifiable data. In the present case,
this exercise has not been done. Therefore, keeping in mind the said
parameter, we direct the State to place the quantifiable data before the
Tamil Nadu State Backward Classes Commission and, on the basis of
such quantifiable data amongst other things, the Commission will decide
the quantum of reservation. We are informed by learned Solicitor General
that such data in the form of Reports, which are subsequently prepared, is
already available. Consequently, these writ petitions stands disposed of
with a direction to the State Government to re-visit and take appropriate
decision in the light of what is stated above. It needs to be mentioned that
the interim orders passed by this Court from time to time in relation to
admissions to Educational Institutions shall continue to be in force and in
operation for a period of one year from today. In the circumstances, we
are not expressing any opinion on the validity of 1994 Act at this stage.

2011 (1) The Supreme Court in its order dated 3.1.2011, has also directed this
Commission also to examine the grievances regarding exclusion of the
creamy layer from the benefit of reservation in the matter of admission
to Educational Institutions and in the matter of employment under
various services in the State of Tamil Nadu.
(2) The entry Sl. No.24 of Narikoravar in the list of Most Backward
Classes was amended as Narikoravar (Kuruvikars). (G.O.Ms.No.6,
BC,MBC & MW Department dated 11.1.2011)

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3.

EVOLUTION OF THE CONSTITUTION AND


DECLARATION OF INDEPENDENCE

3.1

The first Government of India Act came into force in 1858 after the British
Crown took over the Government of India from East India Company.

3.2

As per this Act, India was to be ruled by the Secretary of State for India,
with the status of a Minister in the British Cabinet. He was to be assisted
by a Council of fifteen British members.

3.3

The Secretary of State was answerable only to the British Parliament.


He sat in London and controlled India through Governor-General in
Delhi. The Governor-General was assisted by an Executive Council.

3.4

India was divided into several Provinces ruled by Governors. The


Government of India, headed by Governor-General, was not federal in
nature. It functioned only as a unitary form of Government.

3.5

The Government of India Act, 1909 came into being after the Indian
Council Act of 1861 and 1862. The Government of India Act 1909 was
born out of what were widely known as Minto-Morley Reforms.

3.6

Then came the Government of India Act 1919. This Act created two
distinct spheres of administration Central and Provincial.

3.7

The people of India were not at all satisfied with these Acts. The reason
is this: The British were still the Masters ruling India from London and
New Delhi.

3.8

There were constant agitations. This led to the appointment of SIMON


COMMISSION in 1927. This Commission was headed by Sir John
Simon. All the members were Englishmen; not a single Indian found a
place in it. Consequently, there was revolt in the whole of India. The
Indians shouted with one voice, SIMON, GO BACK

3.9

Despite this, Simon Commission interviewed a number of Indians and


submitted a report to the British Government in 1930.

3.10

This report was considered by a Round Table Conference in London.


The participants were delegates of British Government and of British
India and the rulers of Indian States.

3.11

A White Paper was finally prepared. Joint Select Committee of British


Parliament examined this. Consequent on the recommendations of the

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Committee, a Bill was prepared and passed by the British Parliament.


This was how the Government of India Act 1935 was born.
3.12

Of course, more powers were given to the States by the Government of


India Act 1935 than was given by the Government of India Act 1919.
However, the residuary and discretionary powers still vested with the
British Governors and the British Viceroy. These, among other reasons,
the Indians were not at all satisfied with this Act. This apart, Lokamanya
Bal Gangadhar Tilak gave a call for the goal of complete freedom
(Sampoorna Swaraj). One of the salient features of the Government of
India Act, 1935 was the formation of Provincial Legislative Assemblies
based on adult franchise.
Though the Congress Party strongly
repudiated the 1935 Act, based on this very Act, it permitted all the
Provincial Congress units to go ahead and participate in the Provincial
Assembly elections. Out of the eleven provinces, which went to the
polls, seven voted for the Congress Party and the rest for the Muslim
League.

3.13

A National Convention of the Congress legislators from the provinces


met at New Delhi on 19th and 20th March 1937. While addressing the
MLAs (the very products of the 1935 Act!), Jawaharlal Nehru eloquently
said, The Government of India Act, 1935, must go lock, stock and barrel
and leave the field open for our Constituent Assembly.

3.14

On 7th September 1937, in support of the demand for framing a


Constitution for India by a Constituent Assembly the following resolution
was moved in the Central Legislative Assembly by S.Satyamurthy:
..that this Assembly recommends to the Governor-General-in-Council
to convey to the Secretary of State for India and to the British Government
the opinion of the House that the Government of India Act, 1935, in no way
represents the will of the Nation and is wholly unsatisfactory and should be
replaced by a Constitution framed by a Constituent Assembly elected on the
basis of adult franchise.

3.15

The need for constituting a Constituent Assembly was again emphasized


on 15th November 1939 by Rajagopalachari, the Premier of Madras
Province, through an official press statement issued from Fort St.George.

3.16

In the Harijan, dated 19th November 1939, a significant article by


Mahatma Gandhi appeared voicing, for the first time, his emphatic view
on the urgent need for framing a Constitution for India.

3.17

In 1945, World War II ended. The Conservative Party headed by


Winston Churchill an enemy of India got defeated in the General
Elections, ensued then. The Labour party, headed by Mr.Clement Attlee

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won the elections and came to power. He became the Prime Minister of
England. He made an appeal to the Indian people this way:to join together in a united effort and work out a Constitution which the
majority and minority communities accept as just and fair, and in which both
the Princely States and Provinces could take their place..

3.18

On September 19, 1945, Election to the Provincial Assemblies was


announced. By January 19, 1946, Elections for all the 11 provincial
assemblies in India were conducted. This was nearly 20 months before
India became free.

3.19

In the meantime, a British Parliamentary delegation came to India. The


delegation toured India between January 1, 1946 and February 8, 1946.
The delegation got convinced that there was urgent need to transfer
power to India and advised British Government accordingly.

3.20

The Prime Minister, Clement Attlee, announced on February 19, 1946 in


the House of Commons that a Cabinet Mission consisting of three
members of the British Cabinet would come to India.

3.21

The Cabinet Mission arrived in India on March 24, 1946. The Mission
had a round of talks with Indian leaders. Finally, on May 16, 1946, the
Mission announced its plan going by the name Cabinet Mission Plan.
The Mission announcement formed the genesis of the Constituent
Assembly of India, created in December, 1946.

3.22

The Cabinet Mission Plan culminated in the decisions to be taken as


below:
(1) A Constituent Assembly to be created without any delay ;
(2) The demand for Pakistan by the Muslim League was not to be conceded;
(3) An interim Government was to be formed immediately to govern India.

3.23

The Cabinet Mission did not favour the suggestion of constituting a


Constituent Assembly by members regularly elected through adult
franchise as such constitution is likely to result in undue delay.

3.24

Consequently, the Mission suggested allotment of one seat for a


population of one Million. The suggestion was accepted by the Indians.

3.25

Each Province was directed to send members to the Constituent


Assembly accordingly. The task of electing those members was
assigned to the Provincial Legislative assemblies.

3.26

The British India was allotted 292 members. All the Princely States put
together were allotted a maximum of 93 members.
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3.27

The British India was divided into three sections A, B & C. A section
was to send 187 members; B 35 members; and C 70 members,
totaling in all 292 members.

3.28

Division of various sections comprising the States and allotment of


members to each State are reflected as below:1
2
3
4
5
1
2
1
2

Section A
Madras
Bombay
United Provinces
Bihar
Central Provinces
Section B
Punjab
N.W.F.P.
Section C
Bengal
Assam

General
45
19
47
31
16
General
8
Nil
General
27
7

Muslims
4
2
8
5
1
Muslims
16
3
Muslims
33
3

Sikhs
4
Nil
Sikhs
Nil
Nil

3.29

The modality of sending members from the Princely States was to be


decided later.

3.30

The Muslim League began raising objections to the Cabinet Mission Plan
because the Plan did not concede the formation of Pakistan in its White
Paper on May 16, 1946. Consequently, the Muslim League was
adopting resentful silence in sending its members to the Constituent
Assembly.

3.31

Quite unexpectedly, on December 6, 1946, the British Government


issued a statement in support of the stand taken by the Muslim League.
His Majestys Government said,Should a Constitution come to be formed by the Constituent Assembly in
which a large section of Indian population has not been represented, His
Majestys Government will not contemplate forcing such a Constitution upon
any unwilling part of the country.

3.32

For the first time, the British Government, through the statement, hinted
at the possibility of two nations and two Constituent Assemblies.
Consequently, the Constituent Assembly meeting on December 9, 1946,
took place without the participation of the Muslim League members.

3.33

His Majestys Government made a sudden announcement on February


20, 1947, from London. The statement said,

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His Majestys Government will have to consider to whom the powers of the
Central Government in British India should be handed over, on the due date,
whether as a whole to some form of Government for British India, or in some
areas to the existing provincial Government, or in such other way as seems
most reasonable and in the best interest of the Indian people.

3.34

As a result of the statement of the British Government, the Muslim


Leagues stand got hardened. It publicly announced that it would not join
the Constituent Assembly. The League pressed for another Constituent
Assembly for Muslim India.

3.35

The concept of partition of India was accepted not only by the Congress
Working Committee but also by the larger body All India Congress
Committee.

3.36

On June 3, 1947, Viceroy Mountbatten announced with the concurrence


of Indian leaders and approval of His Majestys Government, what was
known as the Mountbatten Plan. As per this Plan, India was to be
partitioned. Pakistan thus became a reality.

3.37

The two provinces of Bengal and Punjab were also partitioned. There
was a fall in the number of members from those two provinces to the
Constituent Assembly. Fresh elections took place from West Bengal and
East Punjab. As a result, when the Constituent Assembly met in free
India on October 31, 1947, the membership had come down to 299
including the members of the princely States. Two years later, when the
actual ratification of the Constitution took place on December 29, 1949,
only 284 members signed.

3.38

Thus it is crystal clear that the Constituent Assembly which drafted the
Constitution of India did not consist of members elected on adult
franchise. It did consist of members nominated by the provincial
Councils and representatives nominated by the princely States, which
cannot at all be stated on the situation then prevailing to be really
reflecting the will or representing the cause of the masses of the
downtrodden sections of the Indian society. The election took place only
in 1951. The Constitution was not at all placed before the Parliament for
its approval; nor was there any referendum. The Constitution as framed
cannot at all be stated to be really reflecting the will of the people of the
country. Nonetheless, the Preamble of the Constitution proclaims as,
We the People of India, having solemnly resolved to constitute India into
a sovereign, socialist, secular, democratic republic

3.39

India attained independence on August 15, 1947. The Constitution came


into force on January 26, 1950.

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4.

MARCH OF LAW IN THE MATTER OF RESERVATION

4.1

The Constitution of India came into force in the year 1950. It is not as if
reservation was not in existence in Tamil Nadu in the pre-Constitution
period. Reservation was, as a matter of fact, in vogue in Tamil Nadu on
communal or caste basis. The communal reservation was sought to be
introduced for the first time in Tamil Nadu in the year 1921 when Justice
Party was successful in the Elections. The classification of communities
for reservation was broadly divided into six divisions viz., (1)Brahmins,
(2)Non-Brahmin Hindus, (3)Indian Christians, (4)Mohammedans,
(5)Europeans and Anglo-Indians and (6)Others. The one factor taken
into account for communal reservation to various castes and
communities is that the percentage of reservation was not at all provided
on the basis of proportionate population of the respective communities.
To say for example, the Brahmins were given representation all through
from the commencement of reservation in 1921 till up to 1950 in the
services under the State which was in excess of their population.

4.2

When the Constitution came into force, trouble and turmoil started
among the communities regarding reservation. The hierarchy of higher
castes went to the extent of saying that the reservation either in the
matter of admission in educational institutions or for appointment in the
services under the State are not at all to be based on caste or communal
basis and it should be based on merits irrespective of community or
caste to which a candidate belonged. Institution of proceedings was
resorted to by certain hierarchy of higher caste communities challenging
the reservation based on communal basis. The first case that was filed
in Madras was the case of State of Madras v. Champakam Dorairajan in
1951.

4.3

Endless battle was going on in respect of reservation year after year and
the battle of reservation continues as of now.

4.4

Such cases regarding reservation filed in the Apex Court of this country
are chronologically arranged in this Chapter.

4.5

Chronology of cases

4.5.1

State of Madras v. Champakam Dorairajan


[AIR1951 SC 226=(1951)1 SCR 525]
This is the first case which arose on reservation after the commencement
of Constitution of India in the year 1950.
Even prior to the
commencement of the Constitution in the year 1950, there was a
Communal G.O. in the then Madras State providing for reservation to
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certain castes and communities for admission into professional courses


like Medicine and Engineering. One Champakam Dorairajan challenged
the communal G.O. as ultra vires the provisions of the Constitution. The
communal G.O. was in fact struck down by a Bench of the High Court
and later confirmed by the Supreme Court. Thereafter it was found out
that the petitioner Champakam Dorairajan who initiated the case
challenging the G.O. was not at all an applicant seeking admission into
medical course. She, as a matter of fact, fabricated the case as if she
was a candidate seeking admission into medical course and because of
reservation having been provided to certain castes and communities on
communal basis, she was unable to get admission in medical course as
being a person belonging to a forward community though she scored
high marks than those of selected candidates.
Thanthai Periyar created a very great stir and commotion in the State of
Madras and consequently there was a mass upsurge in the State.
Jawaharlal Nehru, the late lamented Prime Minister of India, in rather a
bid to quell the agitation and satisfy the people of Tamil Nadu, introduced
the first amendment to the Constitution in the year 1951 by insertion of
Clause 4 of Article 15 which prescribes, nothing in this Article or in
clause 2 of Article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and Scheduled
Tribes.
4.5.2

Budhan Chowdary vs. State of Bihar


[AIR 1955 SC 191]
In this case, the Supreme Court laid down two important propositions as
the test to be satisfied to be a valid classification under Article 14.
(i) There must be an intelligible differentia as to those who are included
within the class and those who are excluded out of it.
(ii) This intelligible differentia must have a rational nexus to the object
that is sought to be achieved.
So unless and until a classification satisfied both these tests, it will not be
a valid classification.

4.5.3

M.R.Balaji vs. State of Mysore


[AIR 1963 SC 649]
The dictum as below had been laid down:(1) Caste cannot be the only basis for classification to ascertain the
socially and educationally backward classes of persons.
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(2) A classification within classification viz., most backward class is


not possible.
(3) Reservation cannot be made for the majority of seats i.e., more
than fifty per cent of seats.
(4) Social and educational backwardness must be comparable in its
backwardness to that of scheduled castes and scheduled tribes.
Subsequent to the decision in M.R.Balaji, the Mysore Government has
completely given up the caste factor. Only economic factor or profession
coupled with income was taken as the principle.
4.5.4

Chitraleka vs. State of Mysore


[AIR 1964 SC 1823]
The Supreme Court, while upholding this classification as valid, added
that caste also a relevant factor which should be taken into
consideration.

4.5.5

P.Rajendran vs. State of Tamil Nadu


[AIR 1968 SC 1012]
The Tamil Nadu Government reserved seats adopting District-wise
Classification. The Supreme Court said that District-wise classification
was unconstitutional.

4.5.6

A.Periyakaruppan vs. State of Tamil Nadu


[(1971) 1 SCC 38]
Tamil Nadu was divided into various Units like Madras University,
Madurai University, etc. The Supreme Court said that Unit-wise
classification was unconstitutional.

4.5.7

K.S.Jayashree vs. State of Kerala


[AIR 1976 SC 2381]
The Kerala Government, for the purpose of classification, had taken into
consideration the economic criteria or means test, as it is called. In the
case of those persons who belonged to Elava community and those
persons whose income exceeds Rs.12,000/- per annum, the Kerala
Government said, shall not be included within the definition of backward
classes. In K.S.Jayashree vs. State of Kerala, the Supreme Court
upheld the classification of the Kerala Government, as valid.

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The Government of Tamil Nadu, in 1978, fixed the economic criteria like
that if a persons gross salary income exceeds Rs.9,000/- per annum
during the financial year ending 31st March of the previous year, he shall
not be included in the definition of backward class.
This G.O. was questioned before the Full Bench of the Madras High
Court. The majority of the Full Bench consisting of the then Officiating
Chief Justice Honble Mr.Justice P.R.Gokulakrishnan, Mr.Justice
S.Mohan, upheld the validity of the G.O., while Honble Mr.Justice
V.Ramasamy recorded a discordant note of dissent and said that a
classification must be definite and a person must not be permitted on his
volition to choose his class.
4.5.8

K.C.Vasanth Kumar vs. State of Karnataka


[1985 Supp SCC 714],
This was a Constitution Bench decision. The main purpose of this case
was to give a guideline to various States as to what is the criteria that
must be adopted for determining the socially and educationally backward
classes of persons.
Each of the five Judges gave their own separate but independent
judgments.
Justice E.S.Venkataramaiah elaborately considered as to why this
necessity arose for reservation of backward classes and said, perhaps,
not all inequalities can ever be rectified and it is certain that some can be
rectified only by creating new inequalities and new grievances. By strict
application of general equality what would be the result; it will result in
permanent injustice or permanent inequality. This sort of a proposition
was first enunciated by the Permanent Court of International Justice in
the famous case of Minority Schools in Albenia etc. In that case, the
Permanent Court of International Justice held that the application of
perfect equality may result in inequality. Therefore protection is given in
the form of reservation. It has been termed as protective discrimination
or compensative discrimination and Justice Venkataramaiah coined a
new word result-oriented discrimination. Then, such a competition
must be fair. Not only it must be free but it must also be fair. The
competition to be fair, we must have to give certain weightage or certain
handicaps or certain reservations for those persons who are hailing from
such socially or educationally backward classes of persons and that is
why the classification or reservation is provided under the Constitution.
While discussing this issue, Justice Venkataramaiah said, for
generations, i.e., for thousands of years, some communities have been
kept in the dark and they were not permitted to learn. Such a situation
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cannot be rectified in a short span of forty or fifty years but it has to go on


for a number of years till the State comes to a conclusion that all of them
have attained certain amount of advancement.
Then, he says,
inalienable rights cannot be earned posthumously. Social injustice
always balances its books with the red ink. What he means by saying
so is that if we do not take proper protection or consideration, it will result
in revolution.
According to him, caste is a relevant factor for
consideration in determining the backwardness of a class or caste.
Justice Chinnappa Reddy in his judgment said that caste is a very deeprooted idea in our Indian society and it has traversed even the barriers of
religion. In our community, there are certain Christian Nadars, Christian
Khammas, Christian Reddis, and so on. Even after conversion, caste
does not cease to follow them and therefore caste in our system cannot
be abolished even when we wish to abolish caste completely. Justice
Chinnappa Reddy said that what is contemplated by economic criteria is
class poverty and not individual poverty. So before declaring a
particular community as a socially and educationally backward class, one
has to take all other considerations along with economic criteria and then
come to a conclusion and if some are above the average or even
compared to forward communities, those persons cannot be eliminated
from the categories of backward classes.
Sen.J., said that we cannot take economic criteria as such. Caste must
also be taken into consideration as a relevant test.
Justice Desai said that economic criteria shall be applied and such
economic criteria shall be the load bearer.
Chandrachud C.J., did not give any judgment as such, but he had laid
down five propositions:
(i) reservation in favour of Scheduled Castes and Scheduled Tribes
must continue as at present for a further period not exceeding
fifteen years;
(ii) the means test i.e., test of economic backwardness ought to be
made applicable even to Scheduled Castes and Scheduled Tribes
after the period of fifteen years;
(iii) in so far as other backward classes are concerned, two tests shall
be conjunctively applied one is, they should be comparable to
Scheduled Castes and Scheduled Tribes in the backward classes
and the other is, they should satisfy the means test that the
Government may lay down;
(iv) the policy of reservation in employment should be reviewed every
five years;

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(v) for Scheduled Castes and Scheduled Tribes the present system
shall continue for another fifteen years. Once these fifteen years
are completed, it will be fifty years. Thereafter, even for the
Scheduled Castes and Scheduled Tribes, economic criteria
should be applied.
Justice Chinnappa Reddy said that there may be classification within
classification or there may be a classification within the backward class
as backward class or most backward class.
These three-Judges out of the five Judges held that caste can be the
basis of classification. One of the Judges said that cast cannot be the
basis of classification.
The propositions laid down by the Chief Justice lack the basis of any
rationale for the propositions so laid down therein and therefore those
propositions cannot at all be stated to be borne out of that judgment.
Thus the Supreme Court, by a majority, held that caste can be the basis
of backwardness.
4.5.9

Indra Sawhney vs. Union of India


[1992 SCC(L&S)Supp 1=1992 Supp(3)SCC 217]
This case, popularly known as the Mandal Case, is a nine-Judge Bench
decision of the Supreme Court. The following propositions were laid
down:
(i)

Despite the factum of consistently holding the view right from 1960
till up to 1992 by the Supreme Court that the concept of backward
class in Article 16(4) and the concept of socially and educationally
backward class in Art.15(4) being one and the same, however, the
Supreme Court, in this case, took a diametrically opposite turn and
said that the concept of backward class in Art.15(4) and Ar.16(4)
is not one and the same by overriding all those earlier judgments.
The Supreme Court further said that backward class in Art.16(4)
is wider than socially and educationally backward class in
Art.15(4). Backward classes of citizens in Art.16(4) takes in
Scheduled Castes and Scheduled Tribes and all other backward
classes of citizens including the socially and educationally
backward classes; certain classes which may not qualify for
Art.15(4) may qualify for Art.16(4). This is the view of the five out
of nine Judges comprising the Bench;

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(ii) The view that a community or class of people to be classified as


backward class must be comparable of its backwardness to that of
backwardness of Scheduled Castes and Scheduled Tribes has
been rejected;
(iii) Reservation at the stage of promotion has been held to be
unconstitutional and reservation at the stage of initial appointment
alone is permitted;
[This sort of a holding of the Supreme Court has been set at
naught by the insertion of clause (4A) under Art.16 by the
Constitution (Seventy-seventh Amendment) Act, 1995, section 2
w.e.f. 17/6/1995 and clause (4B) by the Constitution (Eighty first
Amendment) Act, 2000, section 2 w.e.f. 9/6/2000]
(iv) Unless the creamy layer is excluded from such backward classes,
no reservation can be made;
(v) Economic criteria alone cannot determine backward class;
(vi) Concept of creamy layer cannot at all be extended to Scheduled
Castes and Scheduled Tribes;
(vii) Art.16(4) permits classification of backward classes and more or
most backward classes;
(viii) Government of India may specify the services and posts to which
the rule of reservation shall not apply;
(ix) In Tamil Nadu, reservation in favour of backward classes in the
services of the State cannot continue beyond 19/5/1993 unless
creamy layer is excluded.
(x) While fifty per cent shall be the rule, it is necessary not to put out
of consideration certain extraordinary situations inherent in the
great diversity of this country and the people. It might happen that
in far flung and remote areas the population inhabiting in those
areas might, on account of their being out of the main stream of
national life and in view of the conditions peculiar to and
characteristic of them, deemed to be treated in a different way,
some relaxation of strict rules may become operative. This being
so, extreme caution has to be exercised and a special case made
out.
4.5.10 M.Nagaraj v. Union of India
[AIR 2007 SC 71 = (2006) 8 SCC 212]
This is a judgment by the Constitution Bench of the Supreme Court
comprising of Y.K.Sabharwal, C.J., and K.G.Balakrishnan, S.H.Kapadia,
C.K.Thakker and P.K.Balasubramanyan, JJ. S.H.Kapadia, J, [as His
Lordship then was], spoke for the Bench.
In this case, the constitutional validity of the Constitution (Seventy
seventh Amendment) Act, 1995, Constitution (Eighty first Amendment)
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Act, 1995, Constitution (Eighty second Amendment) Act, 1995 and the
Constitution (Eighty fifth Amendment) Act, 1995, was challenged, and the
Court upheld these Acts. This apart, the Supreme Court happened to
consider the question of making a provision for reservation for Scheduled
Castes and Scheduled Tribes at the promotional level in the matter of
public employment.
The width and amplitude of the right to equal opportunity in public
employment, in the context of reservation, broadly falls for consideration
under Article 32 of the Constitution.
The main principles laid down by the Constitution Bench of the Supreme
Court bristle as below:(1) States have to identify and collect quantifiable data showing the
backwardness of classes and inadequacy of representation of that
class in public employment, keeping in mind maintenance of
efficiency in administration;
(2) If the State concerned fails to identify and measure the same, the
provision for reservation would be invalid;
(3) In each case, Court has got to be satisfied that State has exercised
its discretion properly for which State concerned will have to place
before the Court the requisite quantifiable data in each case and
satisfy the Court that the reservations became necessary on
account of inadequacy of representation of Scheduled Castes and
Scheduled Tribes in particular class of posts, without affecting
general efficiency of service as mandated under Art.335;
(4) The limitations on power available to the States under Articles
16(4A) and (4B) are:
(i) the ceiling limit of a maximum of 50% reservation (quantitative
limitation);
(ii) the principle of creamy layer (qualitative exclusion);
(iii) the compelling reasons for exercise of power under, namely,
backwardness and inadequacy of representation; and
(iv) the overall administrative efficiency as required by Article 335;
(5) Articles 16 (4A) and (4B) are applicable to Scheduled Castes and
Scheduled Tribes only, and are to be applied only on the basis of
post-based roster with in-built concept of replacement;
(6) How best the conflicting claims of efficiency of administration and
backwardness and inadequacy of representation are to be
optimized can only be done by the administration, in the context of
prevailing local conditions in public employment;
(7) Constitutional amendments do not infringe either the width of the
Constitution amending power or alter the identity of the Constitution
or its basic structure;

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(8) Art.16(4) is enacted as a remedy for the past historical


discrimination against a social class;
(9) Art.16(4A) and (4B) are both inspired by observations of the
Supreme Court in Indra Sawhneys case;
(10) Art.16(4A) and (4B) are enabling provisions and they are
permissive in nature; they leave it to the States to provide for
reservation;
(11) If the appropriate Government enacts a law providing for
reservation without keeping in mind the parameters under Art.16(4)
and Art.335, then the Supreme Court may certainly set aside and
strike down the legislation;
(12) The State is not bound to make reservation for Scheduled Castes
and Scheduled Tribes in matters of promotion. However, if they
wish to exercise their discretion and make reservation in promotion,
States have to collect quantifiable data showing the backwardness
of the class and inadequacy of representation of that class in public
employment, keeping in mind maintenance of efficiency as
indicated by Art.335;
(13) Every discretionary power is not necessarily discriminatory.
Equality is not violated by mere conferment of discretionary power.
It is violated by arbitrary exercise by those on whom it is conferred.
This is the theory of guided power. This theory is based on the
assumption that in the event of arbitrary exercise by those on whom
the power is conferred, the same would be corrected by the courts.
This is the basic principle behind the enabling provisions which are
incorporated in Art.16(4A) and 16(4B);
(14) Art.16(4) is not an exception to Art.16(1); rather, the two operate in
different classes. The words nothing in this Article in Art.16(4)
represent a legal device allowing positive discrimination in favour of
a class;
(15) Art.16(4) has to be construed in the light of Art.335. Therefore,
further limitations on the discretion of the Government in the matter
of reservation under Art.16(4) as well as Art.16(4A) come in the
form of Art.335;
(16) Secularism, democracy, reasonableness, social justice, etc. are
overarching principles which provide linking factor for principle of
fundamental rights like Arts.14, 19 and 21. They pervade all
enacted laws and stand at the pinnacle of the hierarchy of
constitutional values and are beyond the amending power of
Parliament under the Constitution
(17) The theory of basic structure is the only structure by which the
validity of Constitutional amendment is to be judged. The doctrine of
basic structure has been essentially emanated from the German
Constitution. Therefore it will be useful to look at common
constitutional provisions under German law which deal with rights,
such as, freedom of press or religion, which are not mere values,
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they are justiciable and capable of interpretation. The values


impose a positive duty on the State to ensure their attainment as far
as practicable. The rights, liberties and freedoms of the individual
are not only to be protected against the State; they should be
facilitated by it. They are to be informed. Overarching and
informing of these rights and values is the principle of human dignity
under the German basic law;
(18) Part III of the Constitution does not confer fundamental rights. It
confirms their existence and gives them protection. Its purpose is
to withdraw certain subjects from the area of political controversy to
place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts. The
fundamental right is a limitation on the power of the State;
(19) The theory of basic structure is based on the concept of
constitutional identity. It was observed that one cannot legally use
the Constitution to destroy itself. It was further observed that the
personality of the Constitution must remain unchanged. The word
amendment postulates that the old Constitution survives without
loss of its identity despite the change and it continues even though
it has been subjected to alteration. This is the constant theme of
the opinions in the majority decision in Kesavananda Bharatis
case;
(20) Unarticulated rights are implicit in the enumerated guarantees. It is
on this principle that Supreme Court has in numerous cases
deduced fundamental features not specifically mentioned in Part III
of the Constitution;
(21) Articles 14, 15 and 16, Preamble and Article 368 are the essence of
democracy and accordingly, a basic feature of the Constitution;
(22) There is a difference between normal equality and proportionate
equality. There is a difference between formal equality and
egalitarian equality. Formal equality means that law treats
everyone equal and does not favour anyone either because he
belongs to the advantaged section of the society or to the
disadvantaged section of the society. The concept of proportional
equality expects the States to take affirmative action in favour of
the disadvantaged sections of the society within the framework of
liberal democracy. Proportional equality is equality in fact
whereas formal equality is equality in law. Egalitarian equality is
proportional equality;
(23) Applying the working test evolved by Chandrachud, J., in Election
case [1995 Supp.SCC1] @ SCC p.252, para 663, the word
reservation has to be considered in the context of Art.16(4) and it
is in that context that Art.335 of the Constitution has to be seen.
The guiding principle must be what the Constitution-framers
intended originally and not general concepts or principles.
Therefore, schematic interpretation of the Constitution has to be
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applied and this is the basis of the working test evolved by


Chandrachud,J. in the Election case;
(24) There can be no rule of law if there is no equality before the law;
and rule of law and equality before the law would be empty words if
their violation was not a matter of judicial scrutiny or judicial review
and juridical relief and all these features would lose their
significance if judicial, executive and legislative functions were
united in only one authority, whose dictates had the force of law.
4.5.11 Ashoka Kumar Thakur v. Union of India
[(2008) 6 SCC 1]
This is a decision by the Constitution Bench of the Supreme Court
comprising K.G.Balakrishnan, CJ., and Dr.Arijit Pasayat, C.K.Thakker,
R.V.Raveendran and Dalveer Bhandari, JJ.
The constitutional validity of the Constitution (Ninety third Amendment)
Act, 2005 and Central Educational Institutions (Reservation in
Admission) Act, 2006 [Act 5 of 2007] was challenged. The Constitution
Bench, after taking into consideration the various projection of hues of
views of Mr.Ashoka Kumar Thakur, the petitioner who appeared in
person and of very many learned Counsel, ultimately passed an order as
reflected below:Order of the Court
668.The Constitution (Ninety-third Amendment) Act, 2005, is valid
and does not violate the basic structure of the Constitution so far as
it relates to the State-maintained institutions and aided educational
institutions.
Question whether the Constitution (Ninety-third
Amendment) Act, 2005 would be constitutionally valid or not so far as
private unaided educational institutions are concerned, is not
considered and left open to be decided in an appropriate case.
Bhandari, J. in his opinion, has, however, considered the issue and
has held that the Constitution (Ninety-third Amendment) Act, 2005 is
not constitutionally valid so far as private unaided educational
institutions are concerned.
669.Act 5 of 2007 is constitutionally valid subject to the definition of
Other Backward Classes in Section 2(g) of Act 5 of 2007 being
clarified as follows: If the determination of Other Backward Classes
by the Central Government is with reference to a caste, it shall
exclude the creamy layer among such caste.
670. Quantum of reservation of 27% of seats to Other Backward
Classes in the educational institutions provided in the Act is not illegal.
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671.Act 5 of 2007 is not invalid for the reason that there is no time-limit
prescribed for its operation but majority of the Judges are of the view
that the review should be made as to the need for continuance of
reservation at the end of 5 years.
672.The writ petitions are disposed of in the light of majority judgment.
However, in Contempt Petition No.112 of 2007 in WP (C) No.265 of
2006, no orders are required.
4.5.12 W.P.(C) Nos.454/1994, 473/1994, 238/1995 and 35/1996
[Cases challenging the quantum of reservation]
The Writ Petitions challenging quantum of reservation viz., W.P. (C)
Nos.454/1994, 473/1994, 238/1995 and 35/1996 pending before the
Supreme Court of India came up before a Bench comprising Honble The
Chief Justice, Honble Mr.Justice K.S.Radhakrishnan and Honble
Mr.Justice Swatanter Kumar. The order passed by the above Bench on
13.7.2010 gets reflected as below:The short question which arises for determination in these writ
petitions is, whether the quantum of reservation provided for in Tamil
Nadu Backward Classes, Scheduled Castes and Scheduled Tribes
[Reservation of Seats in Educational Institutions and of Appointments
to the Posts in the Services under the State] Act, 1993, is valid?
The impugned Act received the Presidential assent on 19th July, 1994.
Subsequent to the filing of the above writ petitions, Articles 15 and 16
of the Constitution have been amended vide Constitution [Ninety-third
Amendment] Act, 2005, and Constitution [Eighty-first Amendment] Act,
2000, respectively, which Amendment Acts have been the subjectmatter of subsequent decisions of this Court in the cases of M.Nagaraj
& Ors. vs. Union of India & Ors., reported in 2006 (8) S.C.C. 212 and
Ashoka Kumar Thakur vs. Union of India & Ors., reported in 2008 (6)
S.C.C. 1, in which, inter alia, it has been laid down that if a State
wants to exceed fifty per cent reservation, then it is required to base
it s decision on the quantifiable data. In the present case, this
exercise has not been done. Therefore, keeping in mind the said
parameter, we direct the State to place the quantifiable data before the
Tamil Nadu State Backward Classes Commission and, on the basis of
such quantifiable data amongst other things, the Commission will
decide the quantum of reservation. We are informed by learned
Solicitor General that such data in the form of Reports, which are
subsequently prepared, is already available.

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Consequently, these writ petitions stands disposed of with a direction


to the State Government to re-visit and take appropriate decision in
the light of what is stated above. It needs to be mentioned that the
interim orders passed by this Court from time to time in relation to
admissions to Educational Institutions shall continue to be in force and
in operation for a period of one year from today.
In the circumstances, we are not expressing any opinion on the
validity of 1993 Act at this stage.
The Registry is directed to send the records and proceedings, if any,
connected to these writ petitions back to the State.

4.5.13 W.P.(C) No.194 of 2006


[Exclusion of creamy layer in Tamil Nadu]
VOICE (Consumer Care Council) filed W.P. (C) No.194 of 2006 before
the Supreme Court against the State of Tamil Nadu seeking for exclusion
of creamy layer from the benefit of reservation in the matter of
admission to Educational Institutions and in the matter of employment
under various services in the State of Tamil Nadu.
The three-Judges Bench of the Supreme Court comprising Honble The
Chief Justice, Honble Mr.Justice K.S.Panicker Radhakrishnan and
Honble Mr.Justice Swatanter Kumar passed an order on 03/01/2011 as
below:By this writ petition, petitioner seeks a direction to the State of Tamil
Nadu to implement the directions of this Court contained in the
judgment dated 16th November, 1992, in the case of Indra Sawhney v.
Union of India, in the context of identification and exclusion of the
creamy layer from among the backward class communities in the
State of Tamil Nadu. In other words, petitioner seeks exclusion of the
creamy layer from the benefit of reservation in the matter of admission
to Educational Institutions and in the matter of employment under
various services in the State of Tamil Nadu.
The matter is squarely covered by our order dated 13th July, 2010 in
Writ Petition (C) No.259 of 1994 and others (including Writ Petition (C)
Nos.454 of 1994, 473 of 1994, 238 of 1995 and 35 of 1996). By the
said order we have directed the State of Tamil Nadu to collect and
place the quantifiable data before the Tamil Nadu State Backward
Classes Commission and on the basis of such data the Commission
should decide the quantum of reservation.

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In the light of our order dated 13th July, 2010 in the above writ
petitions, we are directing the Tamil Nadu State Backward Classes
Commission also to examine the grievance of the petitioner herein
and, accordingly, decide the matter within the time bound programme
given in our order dated 13th July, 2010. In short, we hold that the
facts of Writ Petition (C) No.194 of 2006 filed by VOICE (Consumer
Care Council) against the State of Tamil Nadu stands covered by our
order dated 13th July, 2010. Accordingly, the writ petition stands
disposed of.
4.6

A survey of the various decisions emerging from the Supreme Court of


India on and from the time of inception of the Constitution relatable to
reservation in matters of appointment in the services under the State as
well as admission in educational institutions on a broad spectrum
analysis points out in no uncertain terms a clear picture of those
decisions expressing the various hues of views contrary to each other on
all aspects of reservation, such as the criteria to be adopted for the
evaluation of socially and educationally backward classes of citizens,
quantum of reservation, applicability of creamy layer besides incidental
or attendant matters thereto, apart from deviating from the provisions of
the Constitution in the sense of stating something which were not
expressly found stated therein or expressing something contrary to the
express and explicit provisions adumbrated therein under the faade of
interpretation of the Constitution and even going to the extent of
delivering decisions having been rendered without any rationale or
reasoning or basis for conclusions arrived at, rendering such decisions in
the eye of law as being nugatory.

4.7

The Constitution, of course, has no eyes to see, has no mouth to speak


to and it has to be seen through the eyes of the Judges and spoken to
through their mouth. Therefore, Constitution is, what the Judges say it is.
However, it does not mean that the Judges are empowered to state
anything they want to state under the garb or faade of interpretation
and the interpretation so made by the Judges must be based on solid
reasoning or rationale besides not being opposed to or shorn of reality of
the situation. No doubt true it is, that the interpretation of the Constitution
is different and distinct from the interpretative analogy to be adopted
relatable to ordinary laws of the land. But that does not mean that the
Judges are empowered to substitute their own views as the intent and
purport of the constitutional provisions without an iota or trace from the
express and explicit provisions of the Constitution. That sort of an
interpretative analogy of the Constitutional provisions, if accepted, is
bound to spell out danger to the parliamentary democracy which is
expected to reflect the will of the people of this country.

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4.8

But in the case of K.C.Vasant Kumar vs. State of Karnataka supra, which
is a five Judges-Constitution Bench decision, Honble Mr.Justice
Chinnappa Reddy said that what is contemplated by economic criteria is
class poverty and not individual poverty. So before declaring a
particular community as a socially and educationally backward class, one
has to take all other considerations along with economic criteria and then
must come to a conclusion and if some are above the average or even
compared to forward communities, those persons cannot be eliminated
from the categories of backward classes. As to which of the two views is
legally sound and amenable to reason, justice and fair play, is left to be
decided by the legal luminaries of this country. It is not as if the views as
expressed by the Supreme Court remains constant all through and the
plain fact is, the views expressed on a particular aspect of the matter will
get changed in the process of sands of passage of time. The views as
expressed in Indra Sawhneys case requires reconsideration and review
by an equivalent or a larger Bench for the betterment of the society at
large if law is considered to be in existence for the people and not the
people for the law, to maintain its pristine glory.

4.9

The views as expressed by Justice E.S.Venkataramayya in the Bench


decision in K.C.Vasant Kumar which have been pointed out earlier,
requires to be reiterated to pinpoint to the outside world the sheer
necessity of bringing about the beneficial and benevolent effect of a class
of society which had been suppressed and oppressed for thousands of
years. In the said decision, His Lordship elaborately considered as to
why this necessity arose for reservation of backward classes and said,
Perhaps, not all inequalities can ever be rectified and it is certain that
some can be rectified only by creating new inequalities and new
grievances. By strict application of general equality what would be the
result; it will result in permanent injustice or permanent inequality. This
sort of a proposition was first enunciated by the Permanent Court of
International Justice in the famous case of Minority Schools in Albenia
etc. In that case, the Permanent Court of International Justice held that
the application of perfect equality may result in inequality. Therefore
protection is given in the form of reservation. It has been termed as
protective discrimination or compensative discrimination and Justice
Venkataramaiah coined a new word result-oriented discrimination.
Then, such a competition must be fair. Not only it must be free but it
must also be fair. The competition to be fair, we must have to give
certain weightage or certain handicaps or certain reservations for those
persons who are hailing from such socially or educationally backward
classes of persons and that is why the classification or reservation is
provided under the Constitution. While discussing this issue, Justice
Venkataramaiah said, for generations, i.e., for thousands of years, some
communities have been kept in the dark and they were not permitted to
learn. Such a situation cannot be rectified in a short span of forty or fifty
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years but it has to go on for a number of years till the State comes to a
conclusion that all of them have attained certain amount of advancement.
Then, he says, Inalienable rights cannot be earned posthumously.
Social injustice always balances its books with the red ink. What he
means by saying so is that if we do not take proper protection or
consideration, it will result in revolution. According to him, caste is a
relevant factor for consideration in determining the backwardness of a
class or caste.
4.10

The question as to whether a class of citizens belongs to socially and


educationally backward class of people or not, falls into the arena of
jurisdiction of the Backward Classes Commission constituted. It is for
such a Commission to investigate such questions on the basis of the
criteria involved and submit a report to the Government. It is for the
State Government to accept or reject the classification so made by the
Commission on the scrutiny of the report so filed. It is not for the Court to
decide such a question as to whether a particular class of people is
socially and educationally backward. If the Courts resort to such an
exercise, it is trampling on the jurisdiction of the Backward Classes
Commission and the Government. Pertinent it is to note what the
Supreme Court said in Asoka Kumar Thakurs case supra in paragraph
669 which gets reflected as under:669.
Act 5 of 2007 is constitutionally valid subject to the definition
of Other Backward Classes in Section 2(g) of Act 5 of 2007 being
clarified as follows: If the determination of Other Backward Classes
by the Central Government is with reference to a caste, it shall
exclude the creamy layer among such caste.

4.11

From what has been extracted above, it is crystal clear that if the
determination of backward classes by the Central Government is with
reference to caste, it shall exclude creamy layer among such castes.
Such sort of a view is going beyond the purview of the jurisdiction of the
Court. Once other Backward Classes are decided by the application of
the criteria evolved viz., social, educational and economic criteria
requirement of exclusion of creamy layer from other Backward Classes is
unwarranted and against the very provisions of the Constitution. The
backwardness of the educationally backward classes had been
determined only with reference to the social and educational
backwardness of such class and the determination of such class
exclusive on the application of economic criteria is not permissible.
Exclusion of classes of people from Backward Classes by the application
of creamy layer is nothing but determination of such class of people
among the socially and educationally backward classes only on the
application of economic criteria which is forbidden by the Constitution.
The further serious infirmity arising from the opinion as expressed by the
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Supreme Court is that a vast majority of Hindus is likely to get affected by


the deprivation of reservation by the application of creamy layer principle
to such classes of backward classes of Hindus. It is not as if the socially
and educationally backward classes of people are available only in
Hindus and not in other religions. There are socially and educationally
backward classes of people in religions such as Islam and Christianity.
The mandate as given above on the creamy layer principle is not at all
applicable to where the determination of other backward classes is not
with reference to a caste. Since the socially and educationally backward
classes of people with reference to Muslims and Christians are not
determined on the basis of castes, it goes without saying that the
exclusion of certain classes of people in the Other Backward Classes in
religions other than Hindus is not permissible. This sort of an invidious
discrimination cannot be allowed to exist in the eye of law.
Except
pointing out such a lacuna in the judgment, the main idea sought to be
projected is that the court has no jurisdiction in the sphere of
determination of the socially and educationally backward classes of
people from the citizens of this country. The appropriate authority to
decide the backwardness of a caste, community or class is the statutory
Commission appointed for the purpose. The Commission, after due
investigation, files the report to the Government. The Government may
or may not accept the report making the classification. The Court has
the power to intervene if the classification so made is unreasonable and
unfair.
4.12

The Supreme Court in Indra Sawhney supra stated that backward


classes in Art.16(4) is wider than socially and educationally backward
classes in Art.15(4). Backward classes of citizens in Art.16(4) takes in
Scheduled Castes and Scheduled Tribes and all other backward classes
of citizens including the socially and educationally backward classes;
certain classes which may not qualify for Art.15(4) may qualify for
Art.16(4). This is the view of five out of the nine Judges comprising the
Bench.

4.13

At the commencement of the Constitution, Art.16(4) was the one and the
only constitutional provision making reservation for backward classes of
citizens. There was no specific provision providing for reservation to
Scheduled Castes and Scheduled Tribes. Art.16(4) prescribes that
nothing contained in this Article shall prevent the State from making any
provision for reservation of appointments or posts in favour of backward
classes of citizens which, in the opinion of the State, is not adequately
represented in the services under the State. Art.16(4) therefore can be
stated to deal with only reservation for backward classes in the services
under the State.

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4.14

Art.15(4) which prescribes that nothing in this Article or in clause (2) of


Art.29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and Scheduled Tribes, had been
inserted in the Constitution by the Constitution (First Amendment) Act,
1951 [vide S.2]. Clause (4) of Art.15 does not specifically use any
expression reservation, but it refers to the expression special
provision. The special provision as contemplated in Art.15(4) was for
the advancement of any socially and educationally backward classes of
citizens or for Scheduled Castes and Scheduled Tribes. This provision is
applicable for providing admission to such classes of people as referred
to in Clause (4) of Art.15 in educational institutions and other
concessions granted to them by the Government.

4.15

After the introduction of Art.15(4) in the Constitution in the year 1951,


both the Articles 15(4) and 16(4) were considered to be of same effect by
various decisions of the Supreme Court, in the sense, where the
backward classes referred to in Art.16(4) is relatable to Scheduled
Castes and Scheduled Tribes, Backward Classes and Other Backward
Classes. It is for the first time in Indra Sawyneys case the Supreme
Court went to the extent of saying that the two Articles are distinct and
different and in fact Art.16(4) is wider than Art.15(4). The classes of
people which are coming under Art.15(4) may also come and attain the
benefits of reservation in the services under the State under Art.16(4).
But one thing is certain; the Scheduled Castes and Scheduled Tribes,
Backward Classes and Most Backward Classes are coming under the
purview of both the Articles 15(4) and 16(4). Therefore, the application
of Art.16(4) in providing for reservation in the services of the State cannot
at all be distinct and different for the Scheduled Castes and Scheduled
Tribes on the one hand and the Backward Classes and Most Backward
Classes on the other hand.

4.16

Right from the inception of the Constitution, the Scheduled Castes and
Scheduled Tribes were provided with reservation in the services under
the State proportionate to their population. Such being the case, it goes
without saying that all socially and educationally backward classes of
citizens are to be provided with reservation under Art.16(4) in the
services under the State proportionate to the population of socially and
educationally backward classes of citizens just like the Scheduled Castes
and Scheduled Tribes are provided with reservation in the services under
the State proportionate to their population. A cursory perusal of the said
clause does not indicate any prescription of specific extent of reservation
to be provided for in favour of backward classes which includes SC and
ST in the services under the State. The one and the only restriction, if at
all, it can be deciphered from the language used therein cannot be
anyone other than the one relatable to inadequacy of representation in
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the services under the State. The words or expressions viz., not
adequately represented in the services under the State has to be
ascribed the meaning. The meaning of the word adequate as has been
given in The Concise Oxford Dictionary The New Edition for 1990s at
page 14, runs as under :adequate. adj. 1.sufficient, satisfactory (often with the implication of
being barely so). 2.(foll. by to) proportionate 3. barely sufficient.
4.17

The reason why the Scheduled Castes and Scheduled Tribes have been
given reservation proportionate to their population and the reason why
the socially and educationally backward classes of citizens are not
provided with reservation proportionate to their population is not
understandable as both the sections are people figuring in Art.16(4) in
the entitlement of reservation in the services under the State.

4.18

Two propositions were laid down by the Supreme Court in Indra


Sawhneys case:(1) The totality of the reservation in the services under the State should
not exceed 50% in normal circumstances; and it is permissible to
exceed 50% in extraordinary circumstances requiring such
excessive reservation;
(2) The Scheduled Castes and Scheduled Tribes are entitled to
reservation in the services under the State proportionate to their
population.

4.19

The population of Scheduled Castes and Scheduled Tribes has been


originally enumerated as 15% and 7.5% respectively, totalling to 22.5%.
Deducting 22.5% from 50%, what remains is 27.5%. Under the first
proposition as laid down by the Supreme Court, the totality of reservation
should not exceed 50% in normal circumstances, the reservation for
Other Backward Classes was made only to the extent of 27% and not
even 27.5%. The proposition as laid down by the Supreme Court bristles
to this:- As and when there is increase in strength of population of
Scheduled Castes and Scheduled Tribes, there will be significant
decrease in the reservation to be made for Other Backward Classes.
Therefore, there is no fixity of reservation for OBC. The reservation for
OBC always depends upon the extent of population of Scheduled Castes
and Scheduled Tribes. In the absence of any other provision other than
the provision under Art.16(4) available in the Constitution, how on earth it
is possible for the Supreme Court to provide for reservation on different
basis to Scheduled Castes and Scheduled Tribes on the one hand and
the other Backward Classes on the other hand?

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4.20

Various decisions of the Supreme Court right from M.R.Balajis case


supra till upto Indra Sawhneys case, create a hiatus in the matter of
reservation between the Scheduled Castes and Scheduled Tribes on the
one hand and the Other Backward Classes on the other hand for no fault
of the latter when especially the provision applicable is one and the same
viz., Art.16(4) for both of them and there being no other specific special
provision providing for reservation for Scheduled Castes and Scheduled
Tribes.

4.21

The Scheduled Castes and Scheduled Tribes population in different


parts of the country is very wide. In about 8 to 10 States, the Scheduled
Castes and Scheduled Tribes population goes far beyond 50% going up
to the maximum extent of 94%. If the totality of the reservation should
not exceed 50% and the reservation for Scheduled Castes and
Scheduled Tribes is to be given proportionate to their population, how on
earth it could be possible to accommodate both the Scheduled Castes
and Scheduled Tribes and the other Backward Classes within the 50%
benchmark in the case of States where the population of Scheduled
Castes and Scheduled Tribes goes far beyond 50%? The other
insurmountable question posed for consideration is as to how on earth it
could be possible to give reservation to Scheduled Castes and
Scheduled Tribes proportionate to their population within the 50% quota
in case Scheduled Castes and Scheduled Tribes population itself is
going beyond 50%? For instance, in Meghalaya State, the ST population
is to the extent of 94%. Which of those categories of people from among
the ST are to be excluded from being provided reservation going beyond
50% i.e, to the extent of 44%? In the State of Tripura, the population of
Scheduled Castes and Scheduled Tribes is to the extent of 48.5% and
the reservation in the services under the State has been made in
proportion to their population. The Central Government itself has
evaluated 42 communities as OBC and the State Government in its turn
evaluated 46 communities as OBC. At present, there is no reservation
for OBC in the services or posts and in admission in educational
institutions due to the ceiling of 50% as the State has already provided
48% reservation for Scheduled Castes and Scheduled Tribes. In view of
the fact that the population of Scheduled Castes and Scheduled Tribes in
that particular State is about 48.2%, the State was not in a position to
grant reservation to OBC and if at all reservation for OBC is to be
provided for, it cannot be more than 1.8%. The reason is, the totality of
the reservation should not exceed 50% in normal circumstances.
Deducting the percentage of reservation to be provided for SC and ST
viz., 48.2% from 50%, the remaining available percentage is 1.8%, in
which case, the reservation if at all is to be provided OBC cannot go
beyond 1.7%.

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4.22

In the State of Orissa, a separate enactment had been made for


providing for reservation to the extent of 38% in the services under the
State for SC and ST. Another separate enactment has also been made
for reservation to OBC to the extent of 27%. The totality of reservation
provided to SC, ST and OBC by way of two separate legislations comes
to 65% far in excess of 50%. However, the Government implements only
50% reservation in view of the Court orders. This sort of an anomaly is
allowed to exist in India.

4.23

In the State of Arunachal Pradesh, the SC are 0.6% and ST are 64.2%,
totalling to 64.8%. The reservation has been provided in the services
under the State to the extent of 80% for Arunachal Pradesh ST and 20%
is for Open Competition.

4.24

Some of the States such as Karnataka, Rajasthan and Maharashtra


which aimed to provide reservation in excess of theoretical margin of
50% were compelled to reduce the quantum of reservation to 50% or
below citing rulings of the Court.

4.25

Of course, it may be explained that Art.15(4) and Art.16(4) being an


enabling rights, it will be open to the respective State Governments to
provide for reservation in a particular manner. However, the dictum laid
down by the Supreme Court in Indra Sawhneys case that the reservation
to be provided for OBC should be limited to the extent of percentage in
such a way that totality is less than 50% and the reservation provided for
SC and ST must be proportionate to their population.

4.26

All these confounding confusions could have been avoided by granting


reservation benefits to SC,ST and OBC proportionate to their respective
population according to the apparent tenor of Art.16(4) of the
Constitution.

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5.

QUALITATIVE EXCLUSION OF CREAMY LAYER


BASELESS

5.1

The vision of the nine-Judges, constituting the larger Bench in Indra


Sawhney vs. Union of India [ 1992 SCC (L&S) Supp 1 = 1992 Supp (3)
SCC 217] falling on creamy layer may now be examined by an
ophthalmologist in the light thrown by ground realities and from the
Constitutional angle.

5.2

The one and only challenge posed before the Supreme Court in Indra
Sahwneys case was as to whether the 27% reservation sought to be
made by the Official Memorandum issued by the Government of India
based upon the report of Mandal Commission was valid? This sort of a
challenge it is no secret was made by anti-reservationist groups.

5.3

The OBC never made any sort of an argument or placed any sort of
pleading before the Supreme Court that the higher-ups in the top most
layer from among OBC snatched away the entirety of the benefit of
reservation to themselves to the exclusion of other OBC at the bottom
layer. It is only those anti-reservationist groups shed crocodile tears in
favour of the OBC at the bottom level raised such an argument. What
could have been the purport or intent of such groups in making such an
argument is rather very obvious and not far to seek. Their clear intention
rather appears to be that in case they are not able to succeed in the
challenge thrown by them with regard to the 27% reservation made to
OBC by the O.M. issued by the Government of India, the eligible OBC
shall be thrown out of enjoying the benefit of reservation by the
application of the concept of creamy layer.

5.4

It is rather a puzzling wonder that the concept of creamy layer has been
raised, not by the OBC but on the other hand by such groups which are
dead against reservation. If really the OBC at the bottom level happened
to be affected by 27% reservation sought to be implemented by the OM,
certainly, they would not remained a silent spectators. The fact that they
remained silent without even raising the little finger is proof positive to
demonstrate that they were in the least to be affected by such
implementation. It is startling as to how in such a situation the Supreme
Court happened to consider such an issue.

5.5

Neither Article 15(4) nor Article 16(4) speaks of matters relating to


creamy layer. Article 15(4) simply states that Nothing in this Article or in
clause (2) of Article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes, whereas Article 16(4) speaks of reservation in favour
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of backward classes in the services of the State in case of inadequate


representation and nothing further. Article 15(4) does not provide the
reservation benefit to all backward classes. It does provide reservation
benefit only to such of those backward classes who are socially and
educationally backward. It does not provide any such sort of restriction
or limitation in such a provision in favour of Scheduled Castes and
Scheduled Tribes. Article 15(4) and 16(4), though finding their place in
Part III Fundamental rights, were declared to be not fundamental rights,
by the Apex court but only enabling rights. That means, no one
belonging to OBC, SC and ST can invoke the writ jurisdiction of superior
courts of jurisdiction High Court and Supreme Court for the
enforcement of the rights. Only, if the State desires to provide
reservation either for appointments in the services of the State or
admission in educational institution only to a certain section of the people
belonging to OBC, SC & ST, provided they all within the eligible groups
who satisfy the criteria evolved for such a classification. The competent
authority to decide creamy layer in the very nature of things cannot be
anyone other than the state by giving a direction to the Backward Class
Commission to investigate and collect relevant and requisite data, make
proper inquiry and submit a report to the Government so as to enable it
to take a decision. The decision so taken is, of course amenable to writ
jurisdiction of Superior Courts, such a challenge may yield dividend, only
if the decision taken by the Government on such aspect of the matter is
opposed to all cannons of reasonableness, fairness, justice, equity and
good conscience or otherwise such an attempt will culminate in failure of
success. The creamy layer sought to be invoked in reservation matters
suo motu by the Supreme Court is beyond the scope of their authority. A
stand may be taken that the Supreme Court has plenary power under
section 142 of the Constitution to do anything they want by overriding the
provisions of Law for doing complete justice in a suitable and appropriate
occasion. By the invocation of such a plenary power, which the Supreme
Court assumed to itself under the faade of interpretation though the
express and explicit language of that article does not confer or connote
any such power. The invocation of such a power, the Supreme Court
arrogates itself to the position of a super Legislature or Parliament. If
such a thing is allowed to happen often and on without any sort of
restriction, it is very likely the country can be ruled by the Supreme Court
by exercising the plenary power under section 142, throwing all the
existing laws in the country in the Bay of Bengal, thereby pointing out,
one of the pillars of democracy Supreme Court getting elevated to
the status of an autocrat, the need of the hour is that steps need to be
taken for the survival and protection of democracy in the country.
5.6

In Article 16(4) the expression backward class alone is referred to and


not Scheduled Castes and Scheduled Tribes. However, it has been
interpreted by the Supreme Court that the expression backward class
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found therein includes backward classes, most backward classes,


Scheduled Castes and Scheduled Tribes. The one and only restriction
imposed therein is inadequacy of representation to all those classes in
the services of the State.
5.7

If the founding fathers of the Constitution had originally intended to


provide for creamy layer by the insertion of a clause in the said Article,
they could have incorporated it, when especially the said Article was
debated in the Constituent Assembly elaborately.

5.8

Pertinent it is also to note that though Article 15(4) had been inserted
subsequently in the year 1951, yet, it has to be remembered that at the
time of its insertion, Dr.B.R.Ambedkar, the Law Minister and some
members of the Constituent Assembly were members of the Parliament.

5.9

The function of the judiciary is to adjudicate and not to legislate. The


addition of the concept of creamy layer in either Article 15(4) or Article
16(4) by the Supreme Court can, by no stretch of imagination, be
construed as an act of adjudication but that will tantamount to an act of
legislation, that too not an ordinary legislation, but a constitutional
amendment. The Supreme Court itself laid down the basic structure
theory in and by which constitutional amendment is impermissible in
case of loss constitutionally identity by the structural changes if made by
way of amendment. Having said so, such a constitutional amendment is
even not permissible by the Constituent Assembly of the Parliament. By
achieving such a feat, the Supreme Court assumed the position of a
super Legislature why, say, a super-Constituent Assembly.

5.10

Leave alone the legal or constitutional basis for incorporation of creamy


layer in those Articles, what was the quantifiable data as available to the
Supreme Court for the incorporation of creamy layer in those Articles?
No factual based data much less any quantifiable data has been placed
before the Supreme Court to incorporate the concept of creamy layer.

5.11

The puzzling factor is that even in the judgment of the nine-Judges


Bench of the Supreme Court in Indra Sawhney case, certain portions of
the Mandal report has been extracted, which, in fact, point out in no
uncertain terms that the OBC entered into service of the Central
Government right from 1950 to the time of Mandal report only to an
extent of about 14%, leaving a balance of 13% (27% minus 14% = 13%)
yet to be filled up even after the elapse of nearly 42 years. Such being
the case, one is at a loss to understand as to where is the necessity for
the application of creamy layer to weed out the higher-ups in the OBC
who were said to be enjoying the benefit of reservation exclusively to
themselves leaving nothing to the OBC at the bottom level. The further
astonishing fact is that in the Central services, there was no reservation
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at all right from 1950 till upto the judgment by the Supreme Court in Indra
Sawhney case in the year 1992. In such state of affairs, how on earth
the Supreme Court had come to the conclusion that the top notches in
the OBC had been enjoying the benefit of reservation to themselves to
the utter exclusion of other OBC at the bottom level impelling the
Supreme Court to resort to incorporation of creamy layer concept in
determination of the OBC.
If the top notches from among OBC
snatched away the entirety of reservations to themselves to the exclusion
of the other OBC as a matter of fact one has to accept and welcome
the application of creamy layer in the matter of recruitment in the
services of the State. The question is, whether such a thing did happen
in reality?
5.12

The information disclosed before the Members of the Parliament on


18.11.2010 in answer to a Rajya Sabha Question regarding
representation of SC/ST/OBC in employment under the Government of
India, contains the following data:
Group

Number of Personnel in service of Government of India


SC
ST
OBC

Total
No. of
Employees

Number

Number

Number

97951

12281

12.5

4754

4.9

5331

5.4

140223

20884

14.9

8004

5.7

5562

4.0

1822326

286573

15.7

127871

7.0

147327

8.1

D
(Excluding

706170

138466

19.6

48728

6.9

35468

5.0

77295

39774

51.5

4621

6.0

2548

3.3

2766670

458204

16.56

189357

6.84

193688

7.00

2843965

497978

17,51

193978

6.82

196236

6.90

Sweepers)

Sweepers
Total
(Excluding
Sweepers)

Total

(Including
Sweepers)
Source: Ministry of Personnel, Public Grievances and Pensions, Government of India.

The data points out that the OBC are enjoying the benefit of reservation
only to an extent of 6% to 7% although the reservation available is 27%.
In the absence of data pointing out that the OBC falling within the creamy
layer snatched away the entirety of the benefits to OBC leaving nothing
to the lower layer of such classes, the need for qualitative exclusion
relying on fiction drafted by experts is purely biased. The reason for such
state of affairs cannot be anyone other than the application of the
concept of creamy layer in the matter of appointment in Central services,
thereby making ineligible all the eligible candidates from among the OBC
throwing all such job opportunities to the hierarchy of higher castes
people.

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5.13

Leave alone the creamy layer as having been introduced by the judiciary,
the Central Government on their part introduced the policy of
Liberalisation, Privatisation and Globalisation [LPG] benefiting to the
largest extent possible to the hierarchy of higher castes as getting
reflected herein below.

5.14

The policy of reservation to backward classes of citizens, including SC


and ST, has reached more number of beneficiaries in Tamil Nadu, when
compared to other parts of the country. The number of government
educational institutions and government/ public sector establishment has
increased in size creating more job opportunities. The population of
hierarchy of higher castes, who were dominating representation in the
services - compared to their population - in government educational
institutions and government establishments prior to 1990s, could not
achieve, as they were previously represented in such services
consequent on implementation of the reservation policy. The increase in
the size of government educational institutions and government
establishment is benefiting the backward classes of citizens. Taking into
consideration the large population of (i.e., 88% of the total population)
backward classes of citizens, the employment provided through
government establishments is very minimal to the extent of 2 3% of
total population. Naturally only a very few number out of the bulk of
backward classes have had opportunity to avail government
employment. Employment opportunity generated through government
establishment could have only a very little impact on their social
upliftment as a group.

5.15

The LPG policy being followed since 1990s came as a protector of


hierarchy of higher castes. The preference and focus of higher castes
have changed from the public entities to global and private entities.
Migration of hierarchy of higher caste to the private institutions /
establishments has been witnessed from the data provided by the
Government schools and recruitments for the public services under the
State. Opening up of flood gates for investment in various industries to
private sector / foreign investors favoured generation of more
employment with better payment and increase in number of seats in
educational institutions. For instance, the data from Employees Provident
Fund Organisation shows, in Tamil Nadu, the number of private sector
employees are 7 to 8 times more than those employed in public service
under the State. It is alleged that since the private sector or foreign
investors were not compelled to follow the reservation, major share of the
seats or employments in private sector go to the hierarchy of higher
castes. Truly, the era of liberalisation favours extension of various
infrastructure facilities, financial incentives and tax concessions for
promotion of industries through private and foreign investors. Such
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benefits were key factors for the profitability of the industries. The
profitable operation of industries favoured increase of income of
investors and enriched wages of the employees. It is also alleged that
the social costs incurred in favour of private and foreign investors are not
being recovered in full to benefit all segments of social groups equally.
5.16

There is absolute need for the government imposing LPG policy to know
whether the benefits of such policy have reached all the social segments
of the population equitably. Every private organisation / establishment
should be made to disclose their performance for attainment of social
justice, as a Social Responsibility Statement, by disclosing in public the
number of employees in different ranges of pay and their social status,
such as SC/ST/BC/MBC/OBC/OC; and also the top 10 castes having
more representation in their organisation/establishment.

5.17

In Indra Sawhney, the nine-Judges Bench of the Supreme Court raised


the question as to whether backward classes can be identified only and
exclusively with reference to economic criterion? The majority decision
of the larger Bench provided an answer to the said question in the
following terms which gets reflected in para 798 @ page 432:It follows from the discussion under Question No.3 that a backward class
cannot be determined only and exclusively with reference to economic
criterion. It may be a consideration or basis along with and in addition to
social backwardness, but it can never be the sole criterion. This is the view
uniformly taken by this Court and we respectfully agree with the same.

Having taken such a uniform stand for quite long by the Supreme Court for the consideration of the question of certain castes and communities
as backward classes whether it is in tune with the principle of
reasonableness, fairness, justice, equity and good conscience for the
Apex body of the judiciary to apply the one and only criterion of economic
criterion in the shape of creamy layer to de-list a caste or community
included in the backward classes after taking into consideration not only
social and educational backwardness but also economic backwardness.
Such an act will tantamount to, usurping the benefits granted under the
facade of granting a concession but not actually granting, but taking
away what was granted to the community in whose favour such
concession was granted. It is nothing but duping, doping and making the
pitiable backward classes of citizens live on promises of granting
concession for their advancement. Approbation and reprobation of the
same act would tantamount to producing a NIL effect of the act sought to
be done and the application of the economic criterion as stated above for
the advancement of the backward classes in the form and shape of
creamy layer would be definitely besides justice.

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5.18

Supreme Court postulates that economic criteria alone cannot serve as a


basis to include a community or class as Backward Class. In such an
eventuality, the converse also must be true, i.e. it is not possible to
exclude a segment within the Backward Class using economic / income
criteria (creamy layer) though socially and educationally backward.

5.19

SWOT gird depicted below would point out the inherent weaknesses of
implementation of creamy layer in not giving any succour and benefits
accruing from reservation to the backward classes of citizens, but on the
contrary works to their detriment.
SWOT Analysis of the idea of Qualitative Exclusion of Creamy Layer
implemented by Union Government and States / Union Territories
Strength
Supreme Court judgements.
Presence of hierarchy of higher castes at
the planning level at Government in large
numbers.

Weakness
No provision is traceable to the
Constitution for imposition of creamy
layer.
As far as SC/ST is concerned exclusion is
expressly provided under the Constitution,
but not for SEBC.
Law made by judiciary applied by
Executive to favour higher castes.
Political dominance of hierarchy of higher
castes in northern and central parts of
India.
Many States are not interested in providing
reservation for BC.
Lack of proportional reservation to BC
similar to that of SC/ST.
Constitution aims to secure socialistic and
secular society, where in all social groups
are to be considered for inclusive growth.
Dichotomy regarding application of
economic criteria; that is for exclusion it
can be applied, but for inclusion it cannot
be applied.

Opportunity
LPG policy.
Growth of private sector.
Growth of global opportunities.
Globally SC/ST/Dalits only are imagined
as socially backward in Indian society;
SEBCs have been darkened to outside
world.
Threats
No quantifiable data to prove that advanced
sections within each caste of SEBC have
availed entirety of the reserved seats, such
that there is nothing available for weaker
sections within such castes of the backward
classes.
Due consideration and importance, as had
been given to SC/ST/Muslim minorities in
the analysis and study of the participation
and performance of different social groups
under various schemes and plans, has not
been given by Union Government.
Central Government does not consider
caste is attached to birth, as the OBC
certificate to creamy layer is denied,
despite social educational backwardness.
Criteria for creamy layer exclusion
consider Indian States on equal footing; but
distinct historical factors, differences in
social,
educational
and
economic
development prevailing in different States
have not been adequately considered.
Qualitative exclusion is not an affirmative
tool to bring up weaker among backward.

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6.

QUANTITATIVE RESTRICTION,
WHETHER QUINTESSENTIAL?

6.1

The view of M.R.Balaji vs. State of Mysore [AIR 1963 SC 649] that the
reservation in all situations and eventualities should not exceed 50% or
to put it in a different way should be less than 50% as stated by the
Supreme Court is not the one and only voice but there are as many
voices as there were / are Judges occupying the corridors of judicial
power in the superior courts of jurisdiction and the voices so expressed
are not in conformity or uniformity in the lone and sole voice of Balaji as if
made in wilderness, not producing the echoing effect of ringing or
lingering effects in the minds of the legal circles, leading to its effacement
altogether, in the sense of the same not being the strict or mandatory
rule, not to be violated in all eventualities and circumstances.

6.2

This aspect of the matter has been dealt with vividly and elaborately by
Pandian,J. in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217]
which gets reflected as follows:184.The question of percentage of reservation was examined in Thomas
[State of Kerala v. N.M.Thomas - (1976) 2 SCC 310 @ 387-388, para 191]
wherein Fazal Ali J., not agreeing with Balaji has observed thus:.. clause (4) of Article 16 does not fix any limit on the power of the Government
to make reservation. Since clause (4) is a part of Article 16 of the Constitution it
is manifest that the State cannot be allowed to indulge in excessive reservation
so as to defeat the policy contained in Article 16(1). As to what would be a
suitable reservation within permissible limits will depend upon the facts and
circumstances of each case and no hard and fast rule can be laid down, nor can
this matter be reduced to a mathematical formula so as to be adhered to in all
cases. Decided cases of this Court have no doubt laid down that the percentage
of reservation should not exceed 50%. As I read the authorities, this is, however,
a rule of caution and does not exhaust all categories. Suppose for instance, a
State has a large number of backward classes of citizens which constitute 80% of
the population and the Government, in order to give them proper representation,
reserves 80% of the jobs for them, can it be said that the percentage of
reservation is bad and violates the permissible limits of clause (4) of Article 16?
The answer must necessarily be in the negative. The dominant object of this
provision is to take steps to make inadequate representation adequate.

185.Krishna Iyer,J., in the same decision has agreed with the above view of
Fazal Ali,J, stating that the arithmetical limit of 50% in any one year
set by some earlier rulings cannot perhaps be pressed too far.(SCC p.371,
para 143).
186.Though Mathew, J, did not specifically deal with this maximum limit of
reservation, nevertheless the tenor of his judgment indicates that he did not
favour 50% rule.

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187.Chinnappa Reddy, J., in Karamchari [Akhil Bharatiya Soshit Karamchari


Sangh v. Union of India (1981) 1 SCC 246] has expressed his view on the
ceiling of reservation as follows :.There is no fixed ceiling to reservation or preferential treatment in
favour of the Scheduled Castes and Scheduled Tribes though generally
reservation may not be far in excess of fifty per cent. There is no rigidity
about the fifty per cent rule which is only a convenient guideline laid down by
Judges. Every case must be decided with reference to the present practical
results yielded by the application of the particular rule of preferential
treatment and not with reference to hypothetical results which the application
of the rule may yield in the future. Judged in the light of this discussion I am
unable to find anything illegal or unconstitutional in any one of the impugned
orders and circulars
188.Again in Vasanth Kumar [K.C.Vasanth Kumar v. State of Karnataka
1985 Supp SCC 714] Chinnappa Reddy,J reiterates his view taken in
Karamchari in the following words : (SCC p.752, para 58)
We must repeat here, what we have said earlier, that there is no
scientific statistical data or evidence of expert administrators who have made
any study of the problem to support the opinion that reservation in excess of
50 per cent may impair efficiency.
189.x

190.It should not be out of place to recall the observation of Hegde, J in Hira
Lal [State of Punjab v. Hira Lal (1970) 3 SCC 567] observing: (SCC p.572,
para 8)
The extent of reservation to be made is primarily a matter for the State to
decide. By this we do not mean to say that the decision of the State is not
open to judicial review. .The length of the leap to be provided depends
upon the gap to be covered. (emphasis supplied)
191.Desai, J in Vasanth Kumar expressed his view that in dealing with the
question of reservation in favour of Scheduled Castes, Scheduled Tribes as
well as other SEBCs Judiciary retained its traditional blindfold on its eyes
and thereby ignored perceived realities. (SCC p.729, para 20)

6.3

Sawant, J. in the same case expressed his views in para 518 (page 256)
which reads as follows: 518.To summarise, the question may be answered thus. There is no legal
infirmity in keeping the reservations under clause (4) alone or under clause
(4) and clause (1) of Article 16 together, exceeding 50%. However, validity
of the extent of excess of reservations over 50% would depend upon the
facts and circumstances of each case including the field in which and the
grade or level of administration for which the reservation is kept. Although,
further, legally and theoretically the excess of reservations over 50% may be
justified, it would ordinarily be wise and nothing much would be lost, if the

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intentions of the Framers of the Constitution and the observations of


Dr.Ambedkar, on the subject in particular, are kept in mind. The reservations
should further be kept category and gradewise at appropriate percentages
and for practical purposes the extent of reservations should be calculated
category and gradewise.

6.4

It is worthwhile to extract what has been laid down in Indra Sawhney as


respects the extent of reservation which reflects as below:- [para 810
p.439]
810. While 50% shall be the rule, it is necessary not to put out of
consideration certain extraordinary situations inherent in the great diversity of
this country and the people. It might happen that in farflung and remote
areas the population inhabiting those areas might, on account of their being
out of the mainstream of national life and in view of conditions peculiar to
and characteristical to them, need to be treated in a different way, some
relaxation in this strict rule may become imperative. In doing so, extreme
caution is to be exercised and a special case made out.

6.5

In such a backdrop and setting of the hues of view of the Judges of the
Supreme Court, the views as expressed by the Andhra Pradesh High
Court in B.Archana Reddy v. State of Andhra Pradesh [2005 (6) ALD
582] that the quantum of reservation cannot at all exceed 50% as if it is a
mandatory or strict rule to be observed in all eventualities and
circumstances is not in conformity with the law laid down by the Supreme
Court. It is a different matter to say that there are no circumstances
whatever warranting reservation in excess of 50% and to say that 50%
reservation is the rule in all eventualities and circumstances as had
been said by the Andhra Pradesh High Court is nothing but a
misconception and misunderstanding of a plain rule of reservation
evolved by the Supreme Court.

6.6

Article 16(4), in its present form, forms part and parcel of the original
Constitution as drafted by the founding fathers, provides for reservation
of appointments or posts in favour of any backward class of citizens
which in the opinion of the State is not adequately represented in the
services under the State. State as referred to therein includes the
Government and the Parliament of India and the Government and the
Legislatures of each of the States and all local and other authorities
within the territory of India or under the control of the Government of
India as has been stated in Article 12 of the Constitution. As such, it is
crystal clear that it is legally feasible or possible by the Government of
India at the Centre as well as the States and other authorities mentioned
therein to make laws for the reservation of appointments or posts in
favour of any backward class of citizens which is not adequately
represented in the services under the State. A cursory perusal of the
said clause does not indicate the prescription of the extent of reservation
to be provided for in favour of all the backward classes in the services
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under the State. The one and only restriction, if at all, which can be
deciphered from the language used therein cannot be anyone other than
the one relatable to the inadequacy of representation in the services.
The words or expressions viz., not adequately represented in the
services under the State has to be ascribed the meaning. The meaning
of the word adequate as has been given in The Concise Oxford
Dictionary The New Edition for 1990s at page 14, runs as under :adequate. adj. 1.sufficient, satisfactory (often with the implication of
being barely so). 2.(foll. by to) proportionate 3. barely sufficient.
Such being the case, it goes without saying that it is permissible for the
State for making any provision for the reservation of appointments or
posts in favour of backward classes of citizens in proportion to their
population.
6.7

The Supreme Court in many a decision held that the expression


backward class as referred to in Clause (4) of Article 16 includes
socially and educationally backward class, most backward class,
Scheduled Castes and Scheduled Tribes. Pertinent it is to refer to at this
juncture that there is no other specific provision traceable to the
Constitution providing for reservation in a particular percentage to
Scheduled Castes and Scheduled Tribes. But right from day one of the
commencement of the Constitution, reservation for Scheduled Castes
and Scheduled Tribes had been made by the State either for
appointments or posts in the services of the State or for admission in
educational institutions proportionate to their population only under
Clause (4) of Article 16 of the Constitution. This sort of a reservation has
got the seal of approval of the Supreme Court without there being any
demur or whisper all these years.

6.8

Axiomatic truth, it is, that the Central Government right from the date of
commencement of the Constitution in the year 1950 till up to 1992, the
year in which the Supreme Court delivered its judgment in Indra
Sawhney did not at all make any provision for making reservation in
favour of any backward class either in the appointment or posts in the
Central services or for admission in their favour in educational institutions
except providing for reservation for Scheduled Castes and Scheduled
Tribes both in the services of the State as well as in educational
institutions, proportionate to their population.

6.9

Article 15(4) which has been inserted by the Constitution (First


Amendment) Act, 1951, prescribes that Nothing in this article or in
clause (2) of article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and Scheduled
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Tribes. Of course, nothing is traceable from the said Article regarding


the extent of reservation to be provided to socially and educationally
backward classes of citizens or to the Scheduled Castes and Scheduled
Tribes for admission in educational institutions. The said Clause uses
the expression special provision can be made in favour of socially and
educationally backward classes of citizens or for the Scheduled Castes
and Scheduled Tribes. This sort of a provision had been utilized by the
State for making reservation in favour of socially and educationally
backward classes of citizens and Scheduled Castes and Scheduled
Tribes for admission in educational institutions.
6.10

Article 15(5) provides that Nothing in this article or in sub-clause (g) of


clause (1) of article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and Scheduled
Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational
institutions referred to in clause (1) of article 30. This clause was
inserted by the Constitution (Ninety-third Amendment) Act, 2005 w.e.f.
20/1/2006. This clause (5) is more or less akin to clause (4) of Article 15
the difference being that it specifically provides that the State can make
special provision by law in favour of socially and educationally backward
classes of persons and Scheduled Castes and Scheduled Tribes in so
far as the special provision relating to their admission in educational
institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions
referred to in clause (1) of article 30.

6.11

A careful perusal of clauses (4) and (5) of Article 15 reveals that the
special provision contemplated in those clauses is in the matter of
admission to educational institutions of socially and educationally
backward classes of citizens or of Scheduled Castes and Scheduled
Tribes. Such sort of a restriction or limitation has been made only in
respect of backward classes and not Scheduled Castes and Scheduled
Tribes. It is not as if special provision can be made in the matter of
admission to educational institutions in favour of all backward classes but
only in respect of such of those backward classes which are socially and
educationally backward ; but it is not so in the case of Scheduled Castes
and Scheduled Tribes. There are no restrictions whatever in the matter
of their admission to educational institutions. To put it otherwise, all the
Scheduled Castes and Scheduled Tribes can be favoured with admission
in educational institutions in proportion to their population without any
restrictions whatsoever; but in the case of backward classes, reservation
to be made in their favour relatable to admission to educational
institutions is only permissible in proportion to such of those backward
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classes which are socially and educationally backward and not in


proportion to the entirety of the backward classes.
6.12

A combined reading of clauses (4) and (5) of Article 15 and clause (4) of
Article 16 demonstrates that the reservation for Scheduled Castes and
Scheduled Tribes can be made in the matter of appointment or posts in
services under the State as well as admission to educational institutions
proportionate to their population whereas in the case of backward
classes, reservation can be made in favour of such of those backward
classes which are socially and educationally backward either in the
matter of admission to educational institutions or in the matter of
appointment or posts in the services under the State proportionate to the
backward classes which are socially and educationally backward and not
otherwise.

6.13

Article 330 speaks of reservation of seats for Scheduled Castes and


Scheduled Tribes in the House of the People while Article 332 speaks of
reservation of seats for Scheduled Castes and Scheduled Tribes in the
Legislative Assemblies of the State. These Articles speak of reservation
of seats in the House of People as well as the Legislative Assemblies of
the States in favour of Scheduled Castes and Scheduled Tribes
proportionate to their population. Article 16(4) makes a provision for
reservation of appointments or posts in favour of any backward classes
of citizens which, in the opinion of the State, is not adequately
represented in the services under the State. [emphasis supplied].
Article 16(4) emphasizes not adequately represented while Articles 330
and 332 use the expression proportion to the .population.
The expression not adequately represented put in the negative form
cannot mean anyone other than to mean adequate representation.
Many languages in the world inclusive of the English language except a
few languages like the French have different expressions to mean one
and the same thing. The meaning of the expression adequate
representation cannot at all be stated to be different in any way from the
meaning proportionate representation if one refers to the meaning of
both these expressions in the English Dictionaries. The spokesman of
the majority judgment in Indra Sawhney, B.P.Jeevan Reddy, J. referred
to this aspect of the matter in paragraph 807 at page 438 which reflects
as under:807. We must, however, point out that clause (4) speaks of adequate
representation
and
not
proportionate
representation.
Adequate
representation cannot be read as proportionate representation. Principle of
proportionate representation is accepted only in Articles 330 and 332 of the
Constitution and that too for a limited period. These articles speak of
reservation of seats in Lok Sabha and the State legislatures in favour of
Scheduled Tribes and Scheduled Castes proportionate to their population,
but they are only temporary and special provisions. It is therefore not

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possible to accept the theory of proportionate representation though the


proportion of population of backward classes to the total population would
certainly be relevant. .

The analogy as made by B.P.Jeevan Reddy, J. between adequate


representation and proportionate representation by making reference
to Article 16(4) and Articles 330 and 332, it is respectfully submitted,
rather appears to be far from correct. His Lordship did not make any
effort to find out the true meaning of the expressions adequate
representation and proportionate representation. If a little bit of effort
had been made towards that direction, there could have been no
problem in finding out the real meaning of those expressions. His
Lordship simply speaks of by saying adequate representation cannot be
read as proportionate representation. The principle of proportionate
representation is accepted only in Articles 330 and 332 of the
Constitution in making reservation of seats in Lok Sabha and State
Legislatures in favour of Scheduled Castes and Scheduled Tribes
proportion to their population. If this sort of an analogy as made by His
Lordship is correct, then, how on earth, the reservation for Scheduled
Castes and Scheduled Tribes in the matter of appointment or posts in the
services of the State under Article 16(4) can ever be made proportionate
to their population about which the Supreme Court did never raise its
little finger at any point of time. The adage What is sauce for the goose
is sauce for the gander too has been omitted to be taken into account by
the Supreme Court in the matter of interpretation of clause (4) of Article
16 while making reservation in favour of backward classes of citizens as
well as Scheduled Castes and Scheduled Tribes in the matter of
appointment or posts in the services under the State. This apart, the
million Dollar question that arises for consideration is, what is meant by
adequacy of representation in the matter of appointments or posts in
the services under the State in favour of Other Backward Classes when
especially the rigidity of the rule of reservation to be always less than
50% as propounded in M.R.Balaji had been thrown to winds by relaxing
such a rule in subsequent decisions of the Supreme Court that the
reservation can in extraordinary circumstances go far beyond 50%, when
there is justification by way of quantifiable data available for such
excessive reservation to be made therefor?
6.14

Say for instance, if the quantifiable data collected projects the figure of
80% of Backward Classes out of the total population, whether it is, in
such a situation or circumstance, permissible to fix the reservation point
in their favour at 80% which is proportionate to their population or at any
other level of percentage between 50% and 80% if adequate
representation is to be provided for them? If reservation is made less
than 80% or beyond 80%, it may not be in consonance with the synonym
of adequate representation.

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6.15

In Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1], Other


Backward Classes in Section 2(g) of the Act 5 of 2007 had been clarified
as follows :If the determination of several backward classes by the Central Government
is with reference to a caste it shall exclude the creamy layer among such
castes. [para 669]

Such a holding of the Supreme Court, it is respectfully submitted, is far


from correct. Caste is peculiar to India and caste is practised only in the
Hindu religion. At the global level, caste is not at all practised in any
other religion other than the Hindu religion. The holding of the Supreme
Court as respects the concept of exclusion of creamy layer from Other
Backward Classes in the process of determination of backward classes
by the Central Government is with reference to a caste, means, the
creamy layer will not at all be applicable for the determination of other
backward classes relatable to Christians and Muslims. This apart, the
incorporation of creamy layer by the Supreme Court in either of the
Articles 15(4) or 16(4) is not relatable to an adjudicatory act but referable
to a legislative feat, why not say, it is a feat to be resorted to by a
Constituent Assembly. Such being the case, it is not far wrong to say
that the Supreme Court acted, in the incorporation of creamy layer, as a
super legislature or why, say, a super Constituent Assembly which
cannot at all happen in a democratic polity leading to autocracy.
6.16

To conclude, since Article 16(4) in its present form forming part and
parcel of the original Constitution as drafted by the founding fathers, had
been implemented in letter and spirit by providing for reservation in
favour of Scheduled Castes and Scheduled Tribes in the matter of
appointments or posts in the services under the State proportionate to
their population, it goes without saying that the reservation of
appointments or posts in the services under the State has to be
proportionate to the population of such of those backward classes which
are socially and educationally backward, in view of the fact that the
terminology backward class occurring in Art.16(4) comprises of
Scheduled Castes, Scheduled Tribes and Other Backward Classes as
has been stated by the Supreme Court. Top of all, Art.16(4) is the lone
and sole provision in the Constitution providing for reservation in the
services of the State both for Scheduled Castes, Scheduled Tribes on
the one hand and the Other Backward Classes on the other hand.

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7.

BACKWARD CLASSES WITHOUT UNTOUCHABILITY


WERE KEPT IN DARKNESS BY FOUNDING FATHERS
OF INDEPENDENT INDIA

7.1

Ambedkar enrolled himself as an advocate in the Bombay High Court.


He started legal practice from July, 1924.

7.2

He initially met with resistance by caste Hindus. His vast experience and
legal acumen helped him to make steady progress. He became a
popular lawyer. He amassed wealth.

7.3

His unique quality was his concern for the downtrodden. This sort of a
quality made him stand apart from others.

7.4

He founded an Association for the welfare of the outcastes. This


association was known as BAHISHKRIT HITKARANI SABHA. The
main object of the Association was to eradicate the caste system from
the Hindu society. Ambedkar through his Association toiled for the
upliftment of the downtrodden. Consequently, the downtrodden section
started adoring him. They began calling him BABA SAHEB.

7.5

A Conference of the depressed classes was convened in March 1927 at


MAHAD. This Conference passed a resolution to start a movement to
throw open public places of utility to all, irrespective of caste and creed.

7.6

There was a public tank at COLOBA. It was known as CHOWDER


TANK. There was a distressing practice of prohibiting the untouchables
to draw or drink water from the tank. That tank was chosen as a place of
protest by Ambedkar. Several people partook along with Ambedkar in
the protest. This was resented by the caste Hindus of all denominations.
The Satyagrahis, in turn, calmly led by Ambedkar gave vent to their
protest by burning copies of MANUSMRITI, the Book of Hindu Code
before a huge gathering. This matter had been taken up before court.
Finally, Ambedkar won.

7.7

This famous march of Ambedkar with his followers to the CHOWDER


TANK came to be known as MAHAD MARCH.

7.8

In 1928, Ambedkar boycotted the boycott of SIMON COMMISSION by


the Indian National Congress. The reason for this singular stand is this:
He did not see eye to eye with Mahatma Gandhi and the Congress in
their approach to the problem of the depressed classes. He submitted a
Memorandum on 23rd October 1928 to the Simon Commission, ignoring
its boycott by the Indian National Congress.

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7.9

Ambedkar was the only Indian who attended all the three Round-Table
Conferences in London. He put forth forceful arguments in these
Conferences for the welfare of the untouchables. Such arguments did
have profound effect on the Prime Minister of England, Ramsay
MacDonald.

7.10

He was, however, not satisfied with his efforts in the Round Table
Conferences. He went to London again on his own, towards the end of
May 1932. He pleaded for special attention to be paid to the depressed
classes before the British Ministers.

7.11

Such special pleading yielded good results. Prime Minister Ramsay


MacDonald announced separate electorates for the untouchables on
August 16, 1932. This was known as the communal award. Mahatma
Gandhi opposed it. He announced a fast unto death to commence from
September 20, 1932 in Poona.

7.12

However, a meeting was arranged between Mahatma Gandhi and


Dr.Ambedkar on September 24, 1932 through the good offices of Sir Tej
Bahadur Sapru and Sri Rajagopalachari. An agreement was signed by
them the same day. This came to be known as POONA PACT.

7.13

Under this Pact, separate electorates, announced earlier by Ramsay


MacDonald were replaced by Joint electorates. Besides, reservations
in the Provincial Legislative Assemblies and also in the Central
Legislative Assembly (later it became the Parliament) were made for
Scheduled Castes.

7.14

Thus, Poona Pact paved the way for reservation for the Scheduled
Castes and Scheduled Tribes in the Parliament and the State
Assemblies by the insertion of specific provisions in the shape of Articles
330 and 332 in the Constitution of India.

7.15

Dr.Ambedkar became the Chairman of the Constitution Drafting


Committee. He also became the Union Law Minister. He wanted to
codify the Hindu Law. In October 1948, the work of the drafting of the
Constitution was going on. He then moved the Hindu Code Bill in the
Central Legislative Assembly. On the contents of the Bill, there was a
difference of opinion within Congress party.
Consequently, the
discussion on the Bill was postponed. Again, on February 11, 1951, he
moved the Bill in an amended form. The Bill had already met with
resistance in the Nehru Cabinet. The Bill came up for final reading on
September 18, 1951. A hectic debate ensued. Ambedkar gave the
reply, meeting all objections raised by several speakers. There was no
support of the Prime Minister, Jawaharlal Nehru, to the Hindu Code Bill.

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Consequently the Bill moved by Ambedkar was voted out. Ambedkar felt
deeply hurt. He finally tendered his resignation on September 27, 1951.
7.16

Even after quitting office, Ambedkars fight against social injustice


continued and lasted till the end of his life.

7.17

It is of some significance to note here the prevalence of a factual


situation that existed in the country at the time of the constitution of the
Indian Constitution. The Congress Party, consisting predominantly of
hierarchy of higher caste people boycotted the Simon Commission and
the Round Table Conferences wholesale. Dr.Ambedkar alone, taking up
the cause of Scheduled Castes and Scheduled Tribes, participated in the
proceedings of Simon Commission and also the Round Table
Conferences. He also took some special efforts in making several trips
to London and met the Prime Minister as well as the other Ministers of
the Cabinet for the improvement of the status of Scheduled Castes and
Scheduled Tribes. But there was none in the Backward Classes at the
relevant time pleading their cause either before the Simon Commission
or before the Round Table Conference or before the British Government
although the leaders from Justice party taking up the cause of the
Backward Classes such as Raja of Panagal, Arcot Ramaswamy
Mudaliar, C.Natesa Mudaliar, Subbarayalu Reddiyar, P.Munusamy
Naidu, Thanthai Periyar E.V.Ramasamy, P.T.Rajan and B.Ramachandra
Reddi, in Tamil Nadu fought vehemently from outside for the welfare of
the Backward Classes. It appears that there was a little or nil
representation, either in the original Constituent Assembly or in the
Drafting Committee, belonging to backward classes projecting the
demands for the upliftment of the backward classes either from the State
of Tamil Nadu or from other States in the Indian context. But the
agonizing factor is that Tamil Nadu was very well represented in the
Constituent Assembly and in the Drafting Committee of the Constitution
by the hierarchy of higher castes such as T.T.Krishnamachary, Alladi
Krishnasamy Iyer and host of others from such class. Further, the
membership of the Constituent Assembly would point out in crystal clear
terms that most of the members emerged from the hierarchy of higher
castes and Rajpramukhs of Princely States excepting a few
representatives of Muslims and Scheduled Caste. To put it in a nutshell,
the representatives of the Constituent Assembly mainly consisted of
personnel belonging to hierarchy of higher castes, Muslims and
Scheduled Caste.
Muslims and Scheduled Caste protected their
interest. The hierarchy of higher castes protected and safeguarded their
interest and leaving in the lurch the interest of millions of backward
classes eking out their livelihood in a poverty-stricken condition, with a
downgraded status without any opportunity being given in the spheres of
education as well as in the services under the State.

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7.18

It is worthwhile to note at this juncture as to how His Holiness Sri Kanchi


Kamakoti Paramacharya, a venerable protector of Hinduism had a vision
to save Hinduism by means of a Constitutional guarantee for its survival,
flourishment, development and what not in future by inclusion of the
necessary and requisite provision in the Constitution of India. Article 26
is relatable to Freedom to manage religious affairs. In the final form of
drafting, Art.26 ran thus:26. Freedom to manage religious affairs.Subject to public order,
morality and health, every religious denomination or any section thereof shall
have the right
(a) to establish and maintain institutions for religious and charitable
purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
Agnihotram Ramanuja Tatachariar writes under the caption The Ideal
Prophet Of Our Age in the book titled Sankara and Shanmata [Souvenir
published in connection with the Conference on Sankara and Shanmata
held in Madras from June 1 June 8, 1969, published by MLJ Office,
Madras] as follows: If such a constitutional guarantee has been got for the independent running
of religious institutions it is in no small measure due to the initiative of His
Holiness Sri Kanchi Kamakoti Paramacharya. Originally the wording was
only Every religious denomination shall have the right, etc. Nobody found
any discrepancy in this wording, including the august Constitution-makers.
His Holiness alone saw that this was not enough. No Hindu thinks that he is
first and foremost a Hindu. He thinks only in terms of his sub-sect, e.g., that
he is a Vaishnavaite, a Saivaite, a Smartha or a Saiva Sddhanthin and so on
and so forth. Similarly no religious institution in India is running under the
label of Hinduism. We only have Vaishnava, Saiva, Smartha, Saiva
Siddhantha, etc. etc., Mutts and monastaries. So the word religious
denominations could not have constitutional application to many of these
institutions. Therefore His Holiness felt that the wording should be changed
as every religious denomination or any section thereof shall have the right,
etc. His supreme will was ultimately carried out!
In all this His Holiness remained behind the screen. But he was the one
moving spirit and great political leaders, eminent lawyers, distinguished
parliamentarians and experienced jurists just carried out his prophetic
schemes for the maintenance of our religious belief and for the constitutional
safeguard for our religious institutions. This aspect which has not seen light
of the day till now deserves to be written in letters of gold in the history of our
religion: perhaps also of our Constitution-making.

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The following passages also find a place under the aforesaid caption:
In particular I want to draw the attention of the public to two great incidents,
which will, ever remain fresh in my memory.
When we were meeting the Matadhipathis throughout India, myself in
company with some others had an unforgettable audience with the then
Pontiff of Sri Sringeri Sarada Peetham Poojya Sri Chandrasekhara
Bharati. He was a divine personality. Though head of a Mutt, he was very
often immersed in deep meditation and came to external consciousness
only on rare occasions. When we called at Sringeri, as though by miracle
the great Acharya came out of his deep meditation, on the very same day.
He appeared before us a huge mass of divine consciousness. His very first
question to us was, Where did Shri Kamakoti Acharya perform Vyasa
Puja? We replied it was at Madhyarjuna (Tiruvidaimarudur). His Holiness
Sri Sringeri Sankaracharya made glorious references about our Holiness.
We narrated to him the politico-religious situation and about our Kanchi
Kamakoti Paramacharyas efforts to unify all the religious institutions in
order to make a concerted move to get constitutional safeguard for our
religion. He replied with a beaming face: Only Sri Kanchi Acharya
understands the atmosphere precisely and knows what is fittest to do in the
prevalent atmosphere. We all depend on what he does in this regard. We
are very grateful to him. If the Hindus are able to maintain Dharma even to
this extent it is primarily due to Sri Kanchi Acharya.
Then and there he called one Shri Sangameswara Sastri and ordered him
to accompany us to other Mutts having connection with Sri Sringeri, like,
Theerthamukthapuri and Hariharaur to help us in persuading those
Matadhipathis to join hands in our Paramacharyas schemes.
We returned back to Sringeri after visiting these Mutts and conveyed our
gratitude to His Holiness Sri Sringeri Acharya. In turn His Holiness asked us
to convey his gratitude to Sri Kanchi Kamakoti Acharya for his task towards
religious revival.

7.19

It will be interesting to note the prophetic vision of Acharya even at the


time when the Constitution was in the anvil of being drafted that at some
point of time political parties professing irreligiousness may come to
power in some States and therefore he took effective steps to see that
religion and religious institutions included in the State List be transferred
to the Concurrent List. On this aspect, what Agnihotram Ramanuja
Tatachariar said is relevant and the passage reads as under:Another incident of great importance: Originally the Drafting Committee had
included religion and religious institutions in the State List of the
Constitution. When His Holiness Sri Kanchi Acharyas attention was drawn
to this he said Religion of India is one. It does not differ on the basis of
States. Similarly the religious institutions also belong to the whole of India.
Therefore this item should be transferred from the State List. Though His
Holiness did not put it in words, it is possible that he also saw prophetically

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that someday even parties professing irreligiousness may come to power in


some of the States in which case religious institutions would have to suffer
very badly.
We conveyed the views of His Holiness to the members of Constituent
Assembly, but they were afraid to take up the issue because even then
Pandit Jawaharlal Nehru was feeling that the Central list was overburdened.
Anyhow as the Taposhakthi of His Holiness would have it, somebody made
bold in the party meeting to refer to the amendment we wanted. And the
wonder of it! No less a person than Jawaharlal Nehru himself changed his
opinion on the spur of the moment, and proposed that religious institutions
should be included in the Concurrent list. The proposal was moved all at
once This was a very great gain certainly not for His Holiness, who is
beyond loss and gain, but it was a great gain for Hinduism, and for that
matter, any religion which has a following in India.

7.20

As such, the dignitaries of Muslims, hierarchy of higher castes and


Scheduled Castes had effective representation in the Constituent
Assembly as well as the Drafting Committee of the Constitution and
protected their interest in the best of fashion possible and there was
none belonging to the backward classes even to air their voices for the
protection of their interest.

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8.

JUDICIAL INTERVENTION A STUMBLING BLOCK IN


CAPACITY BUILDING OF BACKWARD CLASSES AND
WEAKER SECTIONS OF THE SOCIETY

8.1

Unwarranted thinking it is, in many quarters without there being any


exception commitment of the Constitution is for the abolition of castes
and not for its perpetuation and reservation, if continued, would
perpetuate the existence of caste system instead of its abolition in Indian
society.

8.2

Such thinking, if analysed on the face of the provisions adumbrated in


the Constitution will point out in no uncertain terms, is far from correct.
Article 17 proclaims for the abolition of untouchability, while Article 18
provides for abolition of titles. In any other part of the Constitution, no
specific provision is traceable, either for the abolition of castes or for the
prohibition of the practice of castes in any manner whatever. The sordid
fact is that the Constitution does recognize castes. Caste is referred to in
very many provisions of the Constitution such as Articles 15(1), 15(2),
15(4), 15(5), 16(2), 16(4A), 16(4B), 46, 330, 332, 335, 338-A and 341.
Despite reference to caste in very many articles, caste has not at all
been defined in the Constitution. The reason is not far to seek. Caste,
God and Religion are inextricably, mingled or connected with each other
in such a way that one cannot be separated from the other in Hindu
society. In no other part of the globe, recognition and practice of castes is
there, except the fact that the people therein are divided on the basis of
race, religion or on the basis of colour such as blacks and whites.

8.3

The expression Scheduled Caste is not at all a caste in the ordinary


sense of the term. It is a caste created by the Constitution by Article
366(24) which prescribes:
Scheduled Castes means such castes, races or tribes or parts or groups
within such castes, races or tribes as are deemed under article 341 to be
Scheduled Castes for the purposes of this Constitution

8.4

From the definition as above, it is crystal clear that the Schedule Caste is
created or constituted by including in its fold certain races or tribes or
parts or groups within such castes, races or tribes as are deemed under
Article 341 to be Scheduled Castes for the purposes of this Constitution.
Likewise, Scheduled Tribes has been defined, under Article 366 (25)
prescribes as follows:
Scheduled Tribes means such tribes or tribal communities or parts of or
groups within such tribes or tribal communities as are deemed under article
342 to be Scheduled Tribes for the purposes of this Constitution.

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8.5

Article 341 empowers President of India to specify the caste, races or


tribes, or parts of or groups within such castes, races or tribes which
shall, for the purposes of this Constitution, be deemed to be Scheduled
Castes in relation to that state or Union Territory as the case may be.
The Order as made by the President is final and the same is not subject
to challenge by Superior Courts of jurisdiction. Once the Notification is
issued, even the President has no power of exclusion or inclusion from
the lists of Scheduled castes so notified. However, the power of inclusion
or exclusion to the list of Scheduled castes so notified, inheres in favour
of the Parliament as specified in sub-clause 2 of Article 341. It
prescribes:
Parliament may by law include in or exclude from the list of Scheduled
Castes specified in a notification issued under clause (1) any caste, race or
tribe or part of or group within any caste, race or tribe, but save as aforesaid
a notification issued under the said clause shall not be varied by any
subsequent notification.

Similar provisions are traceable to Scheduled Tribes under Article 342.


8.6

The indication in Article 366(24) that the Scheduled Castes as had been
stated or created by way of deeming fiction for the purposes of the
Constitution such as, reservation of seats for Scheduled Castes and
Scheduled Tribes in the House of People under Article 330, reservation
of seats for Scheduled Castes and Scheduled Tribes in the Legislative
Assemblies of the State under Article 332, for consideration of claims of
Scheduled Castes and Scheduled Tribes to services and posts under
Article 335, for making special provision for the advancement of any
social and educational backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special provisions
related to their admission to educational institutions including Private
educational institutions, whether aided or unaided by the State, other
than the Minority educational institutions referred to in clause(1) of Article
30 under Article 15(5), for making any provision for the reservation of
appointments or post in favour of any Backward Classes of citizens
which in the opinion of the state is not adequately represented in the
services under the State under clause (4) of Article 16, for making any
provisions for reservation in matters of promotion, with a consequential
seniority to any class or classes of post 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 under clause (4A) of Article 16, for considering any unfilled
vacancies of a year which are reserved for being filled up in that year in
accordance with any provision for reservation made under clause (4) as
a separate clause of vacancies to be filled up in any succeeding year or
years and such clause of vacancies shall not be considered together with
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the vacancies of the year in which they are being filled up for determining
the ceiling of 50% of reservation of total number of vacancies in that year
under clause (4B) of Article 16.
8.7

The Government of India during British Regime was following since


1925, reservation for appointments in Government service for the
redress of communal inequalities. The policy so adopted failed to secure
due share of appointments to Muslims and consequently it was
contented that this sort of a position cannot at all be a remedied unless a
fixed percentage of vacancies is reserved for Muslims and other
Minorities. Consequently it was decided that 25% of all vacancies to be
filled by direct recruitment of Indians, will be reserved for Muslims and 81/3% for other minority communities. In order to secure fair
representation for the depressed classes, duly qualified members of
those classes were nominated to a public service; even though
recruitment to that service was being made by competition. This sort of
an information, we are able to gather from Appendix XXIII Government
of India Resolution of 1934 on Communal Representation of Minorities in
the services, Dated 4th July 1934.

8.8

The depressed classes were described in the Government of India Act


1935, (for short Act 1935) as Scheduled Castes. The Government of
India, pursuant to the undertaking given in the Central Legislative
Assembly in 1942, reviewed the policy of reservation, relatable to the
depressed classes, described as Scheduled Castes in Act 1935.

8.9

The Government of India thought that, in the then state of general


education among these classes, they did not consider that any useful
purpose would be served by reserving for them a definite percentage of
vacancies.
In order, however, to secure fair representation for
Scheduled Castes, they directed that duly qualified members of those
classes might be nominated to a public service even though recruitment
to that service was being made by competition.

8.10

Various measures have been taken since then to secure increased


representation of the Scheduled Castes in the public services. The
results obtained had however not been substantial. The Government of
India felt that this was mainly due to the difficulty of getting suitable
qualified candidates. Therefore, they considered that the reservation of
definite percentage of vacancies might provide the necessary stimulus to
candidates of these castes to obtain better qualifications and thus
making themselves eligible for Government posts and services.

8.11

On the basis of proportion which the population of the Scheduled Castes


bears to the population of the other communities entitled to a share in the
unreserved vacancies, the Scheduled Castes would entitle to 12.75% out
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of the total number of such vacancies. It was, however, not likely that
sufficient number of candidates from the Scheduled Castes would be
forthcoming to fill the full number of vacancies to which they were entitled
to on a population basis. The Government of India, therefore, came to
the conclusion that it will be sufficient to reserve a somewhat smaller
percentage viz., 8-1/3%. They propose to consider the question of
raising this percentage as soon as a sufficient number of qualified
candidates from those classes were found to be available.
8.12

8-1/3% of all vacancies to be filled by direct recruitment of Indians in the


Central and Sub-ordinate Services to which recruitment is made on all
India basis will be reserved for Scheduled Castes candidates. When
recruitment was made by open competition and Scheduled Castes
candidates obtain fewer vacancies than were reserved for them, the
difference would, if possible, be made up by the nomination of duly
qualified candidates of those castes.

8.13

The information as above is culled out from the Appendix XXIV,


Government of India Resolution of 1943 on Representation of the
Scheduled Castes in the Services, New Delhi, the 11th August 1943.

8.14

The Indian Constitution was drafted according to the Cripps proposals


published on March 29, 1941.

8.15

Convention has no place in a place where there is a written constitution.


England, for example, is not having a written constitution. There,
convention plays a dominant role in the prescription of the procedure and
the policy to be persuaded by the Parliament of England.

8.16

India is admittedly having a written constitution, which is the largest


written constitution at the global level. As such, convention has no place
to play a part in the Indian situation. A convention or practice hitherto
followed cannot prevail against the written provisions of the Constitution.
Of course, during the British rule, as we have seen earlier reservation for
Scheduled Castes with regard to representation in services was given to
such castes proportionate to their population.

8.17

Alas! In the Constitution of India, no provision is traceable for reservation


for Scheduled Castes with regard to services in the State or for
admission into educational institutions to be given to them proportionate
to their population.

8.18

Clause 4 of Article 15 providing for reservation to Backward Classes of


citizens, Scheduled Castes and Scheduled Tribes uses the compendious
expression namely, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes
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or Scheduled Tribes. But, on the other hand, Clause 4 of Article 16


refers to the expression namely Backward Classes of citizens only,
without any reference to Scheduled Castes or scheduled tribes. Reading
Clause 4 of Article 15 and Clause 4 of Article 16 together, one can come
to the conclusion that Scheduled Castes and Scheduled Tribes are also
included in the Backward Classes. The reason why reservation for
Scheduled Castes and Scheduled Tribes is separately, provided is not
far to seek and rather obvious. If the Scheduled Castes and scheduled
Tribes are combined with Other Backward Classes and reservation is
provided for, the competing edge for the Scheduled Castes and
Scheduled Tribes may not be there and the entirety of the benefits of
reservation in all probabilities be knocked off by the Other Backward
Classes, leaving nothing for the Scheduled Castes and Scheduled
Tribes. That perhaps appears to be the reason for separate reservation
having been provided for Scheduled Castes and Scheduled Tribes.
8.19

The reservation for Scheduled Castes and Scheduled Tribes either in the
matter of admission into educational institutions, or in the matter of
appointments or posts in the services under the State had been made
since the inception of the Constitution proportionate to their population.
No provision, as already stated, is traceable in the Constitution for
making proportionate reservation for Scheduled Castes and Scheduled
Tribes either for admission into educational institutions or for
appointments or posts to the services in that State. Of-course, no
provision is also traceable in the Constitution for making reservation
either for admission into educational institutions, or for appointments or
posts in the services of the State for the Backward Classes of citizens
proportionate to their population. Such being the case, the rationale for
making reservation in favour of Scheduled Castes and Scheduled Tribes
alone proportionate to their population, either for admission to
educational institutions or for appointments or posts in the services of the
State is neither understandable nor comprehendible, especially,
reservation either for admission in the educational institutions or for
appointment or posts in the services of the State in favour of Backward
Classes of citizens are not made to their proportionate population.

8.20

Of-course, there are special provisions in the Constitution for reservation


of seats for Scheduled Castes and Scheduled Tribes in the House of
People under Article 330 as well as reservation of citizens of Scheduled
Castes and Scheduled Tribes in the Legislative Assemblies of the State
under Article 332 proportionate to their population. On the basis of such
provisions, reserved Constituencies are created for Scheduled Castes
and Scheduled Tribes in the House of People as well as in the
Legislative Assemblies of the States.

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8.21

By way of reiteration, and for the sake of emphasis, it may be stated, the
discriminatory treatment in the absence of specific, special provisions
available in the Constitution, between Scheduled Castes and Scheduled
Tribes and the Backward Classes of citizens either for admission into
educational institutions, or for appointments or post in the services of the
State, is neither understandable nor comprehendible.

8.22

Article 14, the Supreme Court said, is a basic feature of the Constitution.
Reservation in excess of 50% affecting equality principle, in a colossus
way affects the basic infrastructure of the Constitution. The reservation
for Scheduled Castes and Scheduled Tribes having been fixed at 15%
and 7.5% respectively equivalent to 22.5% based on the population, the
Supreme Court said, the reservation, if any, to be made in favour of
socially and educationally Backward Classes of citizens must have to be
confined in such a way that the percentage reserved for them, if added to
the percentage of reservation to Scheduled Castes and Scheduled
Tribes should be below 50% and not even equal to 50%. Having taken
this dictum into consideration, the Mandal Commission fixed the
reservation for the socially and educationally Backward Classes of
citizens at 27% making the total reservation, 22.5% + 27% = 49.5%,
below 50%, notwithstanding the fact, the total socially and educationally
Backward Classes of citizens were estimated at 52%. This means the
percentage of reservation to such a Backward Classes of citizens will
always depend upon the extent of reservation made for Scheduled
Castes and Scheduled Tribes which is fixed, proportionate to their
population. When the percentage of reservation for Scheduled Castes
and Scheduled Tribes gets increased proportionate to their population, it
goes without saying that the extent of reservation available for the
eligible Backward Classes of citizens, will get decreased to the extent of
the increase in reservation in favour of the Scheduled Castes and
Scheduled Tribes, notwithstanding the population of the eligible
Backward Classes gets increased beyond the existing level of 52%.
Hypothetically, it may be stated, if the population of scheduled castes
and scheduled tribes gets increased to the level of 49.5%, which is below
50% there is every likelihood of the extent of reservation to the eligible
backward classes getting reduced to negligible or nil percentage of
reservation.

8.23

The Supreme Court categorically declared that Creamy Layer is not at all
applicable to Scheduled Castes and Scheduled Tribes. While saying so,
the Supreme Court rather appears to be oblivious of the sanguine
provisions adumbrated under Article 341(2). According to the clause (2)
of the said Article, the power of exclusion or inclusion specially inheres in
favour of the Parliament, though the Supreme Court does not have any
power of inclusion or exclusion of Scheduled Castes. Creamy layer is
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after all a different phraseology for exclusion. To say that Creamy layer
is not applicable to Scheduled Castes and Scheduled Tribes, as has
been said by the Supreme Court, is contrary to sub-clause 2 of Article
341. Creamy layer which is nothing but exclusion can be made
applicable to Scheduled Castes and Scheduled Tribes by the enactment
of a law by the Parliament if circumstances warrant for such exclusion.
8.24

The power of determination of socially and educationally Backward


Classes vests in the State as defined under Article 12 and not for any
Superior courts of jurisdiction. The State resorts to such exercise by the
appointment of Commission. After an elaborate enquiry, on the rationale
criteria evolved, the Commission decides the social and educational
backwardness of a class or caste and affixes the label to such of those
Backward Classes and submits a report to the State. The State in turn,
after considering the report submitted, classifies the caste or
communities to be included in the list of Backward Classes eligible for
reservation. Once, a decision had been reached by the State, the power
of the Court begins to scrutinize, whether such classification falls within
the ambit of reasonableness. If the Court decides that such classification
is beyond the frontiers of reasonableness, the same will be struck down
as null and void. To put it otherwise, it is the power of the State to decide
on the social and educational backwardness of the caste or the
community while it is the power of the Court to adjudicate on the
reasonableness or otherwise of such classification. There is no power for
the Court to prescribe such classification. If the Court does so, it will
tantamount to encroaching upon the executive activity of the State.
Article 15(4) specifically states that nothing in this Article shall prevent
the State, from making any special provisions for the advancement of
socially and educationally Backward Classes of citizens or for Scheduled
Castes or Scheduled Tribes. Thus, it is crystal clear that the power to
determine the question of social and educational backwardness of a
caste, or community or class definitely vests with the state, of course,
subject to the reasonableness of the classification being determined by
Courts. Such being the case, the State decided the question of social
and educational backwardness of the caste, community or class by the
appointment of Ambasankar Commission in the State of Tamil Nadu and
the appointment of Mandal Commission by the Central Government.
Both the reports had been placed before the Supreme Court in Indra
Sawhney and Supreme Court accepting Ambasankar Commissions
report, went to the extent of saying that the State report (Ambasankar)
will prevail over the Central report (Mandal Commission), if there is any
inconsistency between the two reports. On the basis of the list of castes
or communities as decided by Ambasankar Commission, as socially and
educationally Backward Classes, which had been accepted not only by
the State of Tamil Nadu, but also by the Supreme Court, reservation has
to be provided to such of those backward classes and Schedule Castes
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and Scheduled Tribes either for the purpose of Article 15(4) and Article
15(5) or Article 16(4), 16(4A) and 16(4B).
8.25

There is no provision in the Constitution to provide for exclusion (Creamy


layer) of any of the class or communities from the list of Backward
Classes as already decided. If at all, if there is any exclusion from the list
of Backward Classes as already decided, the power vests with the State
alone for doing so. It is not constitutionally permissible for the Supreme
Court to snatch away such a power, inhering in favour of the State, to
legislate on Creamy layer (exclusion) in its judgement and make it
operative as an amendment to the Constitution and issue a direction to
the State to formulate creamy layer and exclude such creamy layer from
the list of Backward Classes. The Supreme Court, as a matter of fact,
under the faade of adjudication actually snatched away the legislative
power of the State in defining Backward Classes which has already been
decided by the State on the application of relevant criteria and say
backward class is one as has been decided by the State or Central
Government on the acceptance of report of the relevant commission
minus creamy layer.

8.26

The Supreme Court, not only caused injustice by providing for


reservation for backward classes not exceeding 27% although population
of such backward classes was estimated at 52%, but also reduced the
extent of reservation for Backward Classes to a still lower level of 27% by
the introduction of the application of creamy layer in determining the
eligibility for Backward Class status for the purpose of reservation.

8.27

Once a community or caste, as already stated, is decided to be a socially


and educationally backward class, it goes without saying that the entirety
of such Backward Classes must receive the benefits of reservation to the
fullest extent of such Backward Class population. The eligible Backward
Class population having been decided at 52% by Mandal Commission,
they have to be provided for a reservation to such an extent, unmindful of
the 22.5% reservation in favour of Scheduled Castes and Scheduled
Tribes. If done so, the total extent reservation will come to
52%+22.5%=74.5%. There is nothing wrong in making such a provision
of reservation to the Backward Classes and Scheduled Castes and
Scheduled Tribes, when especially such class of people had been
oppressed or suppressed for thousands of years by the upper crust of
hierarchy of higher caste, enjoying cent percent reservation themselves
to the exclusion of others.

8.28

Indian Constitution is a goal oriented, but not right oriented one as in


United States of America. The goal of the Constitution had been clearly
spelt out in its preamble. The preamble provides,

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WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India


into a SOVEREIGN, SOCIALIST, SECULAR, 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
and integrity of the Nation

8.29

The word fraternity is not a mere rhetoric, but is an instrument for


assuring (a) the dignity of the individual and (b) the unity and integrity of
the Nation. It has a two-fold application with reference to the backward
classes and the religious minorities.

8.30

The first aspect has been highlighted by the nine-Judge Bench decision
of the Supreme Court in Indra Sawhneys case. In that case, the
Supreme Court observed that the words fraternity assuring the dignity of
the individual has a special relevance in the Indian context because of
the social backwardness of certain sections of the community who had in
the past been looked down upon and deprived of any participation in the
administration.
This situation could not be remedied unless the
backward classes were brought up to the level of the rest of the
community and given a share in the administrative apparatus through the
mechanism under Article 16(4) of the Constitution.

8.31

Pertinent it is to point out here that the dignity of the individual had not
been incorporated as a specific basic inalienable human right as a
fundamental right in the Constitution of India as had been done in the
German Constitution, which aspect of the matter had been referred to in
detail in the Chapter Basic Structure of the Constitution in this report.
The remedial measures of the backward classes being brought up to the
level of the rest of the community and given a share in the administrative
apparatus through the mechanism under Article 16(4) of the Constitution,
as stated by the Supreme Court, is of no consequence when especially
Article 16(4) though incorporated in Part III of the Constitution giving
the status of a fundamental right by the founding fathers of the
Constitution had been denied such a status by the Supreme Court, by
giving the status of an enabling right.

8.32

As such socialism, secularism and democracy formed the foundation


edifice of the Constitution. All these three facets run through the woof
and weft of the fabric of the Constitution in very many articles. The
socialistic ethos is mainly adumbrated in the directive principles of State
policy under Part IV of the Constitution. As a matter of fact, Part IV gives
social rights, the economic rights, educational rights and cultural rights
for the people, where as Part III, Fundamental chapter deals with Political

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and Civil rights such as right to life and liberty, speech and expression,
right to religion and other rights.
8.33

The implementing authorities in this Country, under the faade of


interpreting the Constitution, laid down in no uncertain terms that the
provisions as adumbrated under Part III of the Constitution alone are
justiciable in the sense that they are immediately enforceable in courts of
law and the rights as adumbrated Para IV of the Constitution are not
enforceable just like the Fundamental rights. The implementing
authorities further went to the extent of saying that in case of conflict
arising between the provisions as adumbrated in chapters Part III and
Part IV, the provisions as adumbrated in Part III shall prevail. This sort of
an approach did not at all advance the social, educational and economic
status of the weaker and under privileged sections of the society to any
extent whatever.

8.34

The implementing authorities were not in a position to understand the


rationale or reason for the justiciability of the rights adumbrated under
Part III and Part IV of the Constitution. If we take into consideration, the
rights as adumbrated under Part III of the Constitution, such rights, if not,
immediately enforced will die instantaneously. Further, for enforcement
of such rights, the exchequer need not spend any money at all. That
perhaps was the reason for the justiciability of the rights under Part III.

8.35

If we take into consideration, the rights as adumbrated under Part IV, for
the enforcement of many of such rights, the exchequer need colossus
amount of money and that apart, even if such rights are not enforced
immediately, the rights will not get perished and can wait for their
enforcement. This can be explained by way of an example. If all the
under privileged sections of the society in the Country want to enforce
the right to food, shelter, education, such enforcement of rights is not
feasible unless the Government is in a position to spend colossus
amount and even if rights are not immediately enforced, the under
privileged sections of the society, may not die immediately and they may
wait for the opportune moment for the State to provide such facilities and
amenities, when the fluid cash, needed for such purposes, is possessed
of by the State. Until then, they can take shelter under nature given
amenities such as trees. They may not perish for want of food, the
reason being, they can live on earth by resorting to eat natures bounty
such as fruits, roots, grass etc., hoping for the amenities of shelter and
food to be given to them by the Government at the opportune time, when
there is fluid cash for affording such amenities.

8.36

If the rights given under Part III are to flourish, it goes without saying the
rights as adumbrated under Part IV must reach the people or otherwise
the people may not really enjoy the fruits of the rights under Part III.
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8.37

The adoption of dichotomous approach between Part III and Part IV by


the implementing authorities reversed the goal of the Constitution in
establishing socialistic pattern of society in the sense of not conferring
the benefits intended to be conferred upon the underprivileged sections
of the society, resulting in the status quo position. Apart from the conflict
created by the implementing authorities, between Chapter III and
Chapter IV, they also created a division of rights as justiciable and nonjusticiable among the fundamental rights. Clause (1) of Article 15 had
been considered to be the justiciable fundamental right, while clause (4)
of Article 15, though forming part and parcel of Article 15 as a sub-clause
therein, was not construed as a justiciable fundamental right, but was
only given the status of an enabling right. Just like that clause (2) of
Article 16 had been interpreted by the implementing authorities as
justiciable fundamental right, while interpreting clauses (4), (4A), (4B) of
Article 16, though forming part and parcel of the same article, yet
interpreted to be a non-justiciable, but an enabling right for no reason
whatever. Further, the implementing authorities construed the meaning
of equality as figuring in Article 14, not in the context of the constitutional
scheme. The implementing authorities instead of taking into
consideration, the nature of our Constitution being a goal oriented one in
the sense of conferring social justice to the under privileged sections of
the society so as to raise to their status to the level of the upper crust of
hierarchy of other castes, thereby establishing an Egalitarian society, but
on the contrary, adopted an approach of interpreting the term equality
as understood in the Countries like United States of America, having a
right oriented Constitution, which in turn, acted as a deterrence in the
establishment of Egalitarian set up of society as contemplated by the
Constitution.

8.38

The late lamented Prime Minister Indira Gandhiji brought in 42nd


amendment of the Constitution in 1976 in and by which, primacy was
given to Part IV in case of any conflict arising between Part III and Part
IV. This amendment as has been brought in 1976 was abrogated by 44th
amendment of the Constitution by Janatha Government, which came to
power then. But for the repeal effected by 44th amendment brought in by
Janatha Government, cocksure it is, this Egalitarian set up of a society
could have been established by now.

8.39

Granting justiciability to Part III and rendering lip-service to Part IV that it


is more fundamental than the fundamental rights by the implementing
authorities would tantamount to dupe dope and make people live on
promises.

8.40

The implementing authorities created a stumbling block for the


establishment of an Egalitarian set up of society by propounding a basic
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structure theory of the Constitution. The basic structure theory was not
at all defined. The implementing authorities say in an autocratic fashion
that as and when they say some aspect of the Constitution is a basic
structure, that aspect of the matter is the basic structure. Such saying
cannot be anyone, other than the saying of a dictator which lends
assurance to the thinking that, in a democratic set up, the most
undemocratic of an institution cant be anyone other than the Judiciary.
8.41

The implementing authorities after propounding the basic structure


theory went to the extent of saying that any legislative provision being
opposed to basic structure of the Constitution if challenged before Court
of law, would be struck down as null and void as being opposed to basic
structure of the Constitution.

8.42

If any of the provisions of the Constitution is stated to be basic structure


by the implementing authorities, then there is no scope for the
amendment of the provisions of the Constitution by the constituent
Assembly of the Parliament, notwithstanding the fact that such a power
of amendment had been conferred upon such Assembly by sanguine
provisions adumbrated under Article 368 Clause 1 which prescribes,
Notwithstanding anything in this Constitution, Parliament may in
exercise of its constituent power amend by way of addition, variation or
repeal any provision of this Constitution in accordance with the
procedure laid down in this article. It is thus clear that the constituent
power inheres in favour of Parliament to amend the provisions of the
Constitution by way of addition, variation or repeal in accordance with
their procedure laid down therein notwithstanding anything contained in
the provisions of the Constitution. The words of clause 1 of Article 368
are so explicit in defining the constituent power of the Parliament. The
words referred to therein are addition, variation or repeal. These three
words are with no prefix, for curtailment of their meanings. As such, there
is no restriction with regard to the meaning of those words. But none the
less, the implementing authorities went to the extent of interpreting
clause 1 of Article 368 by saying, that there is an implied restriction in the
amending power- the constituent power- inhering in favour of the
Parliament for the amendment of the Constitution. They are placing such
an interpretation on the amending power, inhering in favour of the
Parliament to amend any provisions of the Constitution, which are
declared to be the basic feature of the Constitution.

8.43

The theory of basic structure as propounded is in all fours contrary to the


Constitutional canon, the generation must be given a choice to have its
own Constitution.

8.44

Constitution is a dynamic document and not a static one. It has to be


changed to meet the modern needs of the society marching towards the
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path of civilization. It is not a Qur'an to be unchanged as God given one.


It has to be changed meeting the requirements of the society. The
Constitution as enacted by founding fathers can not at all be stated to
remain the same in the sense that it was, is and will be the Constitution
forever.
8.45

What is said in paragraphs 6.10 to 6.21 under the title Social justice,
merit and privileges in Chapter VI of Government of India Report of the
Backward Classes Commission, first part (Volumes I to II) 1980 is
relevant and they reflect as under:
6.1 Equality before the law is the most precious democratic right of an
Indian citizen and it is enshrined in Article 14 of the Constitution of India. This
right is further elaborated and made specific in Article 15, 16 and 29 of the
Constitution. These Articles prohibit discrimination against any citizen on
grounds only of religion, race, caste, sex, language or place of birth, whether
in respect of employment or admission to educational institutions, or access
to public places, etc.
6.2 The above Articles constitute the bed-rock of a citizen s fundamental
rights. But by ensuring equality of opportunity to all citizens in respect of
educational and employment opportunities, we may he ignoring the special
problems of some backward sections of our people who have suffered from
social, cultural, educational and economic deprivation for hundreds of years.
On the face of it the principle of equality appears very just and fair, but it has
a serious catch. It is a well-known dictum of social justice that there is
equality only amongst equals, To treat unequals as equals is to perpetuate
inequality. When we allow weak and strong to compete on an equal footing,
we are loading the dice in favour of the strong and holding only a mock
competition in which the weaker partner is destined to failure right from the
start. This approach does ensure the survival of the fittest . But we must also
note that survival of the fittest is the law of the jungle.
6.3 The humanness of a society is determined by the degree of protection it
provides to its weaker, handicapped and less gifted members. Whereas in a.
jungle everybody fends for himself and devil takes the hind-most, in a
civilized society reasonable constraints are placed on the ambitions and
acquisitiveness of its more aggressive members and special safeguards
provided to its weaker and more vulnerable sections. These considerations
are basic to any scheme of social justice and their neglect will brutalize any
human society.
In a limited sense, the right to social justice may be defined as the right of
the weak, aged. destitute, peer, women, children and other under
privileged persons, to the protection of the State against the ruthless
competition of life, It seeks to give the necessary adventitious aids to the
underprivileged so that they may have the equal opportunity with the more
advanced in the race of life. It is a bundle, of lights; in one sense it is
carved of other rights; in another sense it is a preserver of other rights. It

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is the balancing wheel between haves and have-nots. (Social Justice and
Law by Shri Justice K. Subba Rao, National, New Delhi)
6.4 Our Constitution markers were fully alive to the need for providing
safeguards to the weaker sections of society. Whereas Articles 15, .16 and
29 create the overall impression of according equal access to all citizens to
educational, employment and other facilities, Clause (4) of Article 16
stipulates (4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts it favour of any
backward class of citizens which, in the opinion of the State, is net
adequately represented in the services under the State.
6.5 Subsequently as a result of the Constitution (First Amendment) Act,
1951, a similar clause was added to Article 15 also. Thus, it will be seen that
Clauses (4) of both Articles 15 and 16 make special provisions for the
advancement of any socially and educationally backward classes. Further,
Article 46 enjoins upon the State the obligation to promote with special care
the educational and economic intereST of the weaker sections of the people.
6.6 On the face of it, it may appear that special safeguards provided to
weaker sections under Articles 15(4) and 16(4) are in conflict with the
fundamental rights to education, employment, etc. It has been forcefully
argued that the equality of opportunity and treatment granted to every citizen
under Articles 14, 15, 16 and 29 of the Constitution is greatly undermined by
Clauses 4 of Articles 15 and 1 6, which enable the State to make special
provisions for the advancement of weaker sections of the society. According
to this line of reasoning these two Clauses give the State overriding powers
to greatly dilute the principle of equality before the law contained in
Article 14.
6.7 Here the real conflict arises from the clash between the intereST of the
individual versus that of society. The Fundamental Rights are primarily
concerned with the rights of the individual. Claims of society do not have the
same sort of immediacy and urgency as the claims of individuals. Wrongs
suffered by individuals stick out much more pointedly than the wrongs
suffered by the society. In view of this the exceptions contained under
Articles 15(4) and 16(4) appear to confer a privileged status on backward
classes status seems out of line with the over all scheme of Fundamental
Rights. It is only under Directive Principles of the State Policy that tile claims
of society in general are accorded due recognition.
6.8 By now the conflict between the Fundamental Rights and Directive
Principles of the State Policy has become a very familiar theme of
Parliamentary debates and judicial pronouncements. This conflict was very
vividly highlighted by Pandit Nehru during the Parliamentary debates on the
Constitution (First Amendment) Bill, 1951. He stated,
. . . . The Directive Principles of State Policy represent a dynamic move
towards a certain objective. The Fundamental Rights representsomething static, to- preserve certain rights which exist. Both again are

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right. But somehow and sometime it might so happen that that dynamic
movement and that static stand still do not quite lit into each other.

.. The result is that the whole purpose behind the Constitution which
was meant to be a dynamic Constitution leading to a certain goal step by
step is somewhat hampered and hindered by the static element being
emphasized a little more than the dynamic element and we have to find
out some way of solving it.
.... If in the protection of individual liberty you protect also individual or
group in equality, then you come into conflict with that Directive Principle
which wants, according to your own Constitution, a gradual advance or let
us put it another way, not so gradual but more rapid advance, wherever
possible, to a State where there is less and less inequality and more and
more equality. If any kind of an appeal to individual liberty and freedom is
to mean as an appeal to the continuation of the existing inequality, then
you get into difficulties. Then you become static, unprogressive and
cannot realize that ideal of an egalitarian society which I hope most of us
aim at.
6.9 The dilemma pointed out by Pandit Nehru is very real and has been
faced repeatedly in the course of implementing legislation aimed at the
creation of a more just social order. Whereas we can take legitimate pride in
having established a Democratic Republic in India, the elitist and unequal
character of Indian society cannot be considered as a matter of much
satisfaction.
6.10 Before we examine this issue further, it will be useful to consider the
implications of Equality in the context of human societies. H. G. Gans has
observed that three alternative outcomes of Equality are generally
considered (i) Equality of opportunity, (ii) Equality of treatment, and (iii)
Equality of results. Equality of opportunity promised under Article 16(1) of the
Constitution, is actually a libertarian and not egalitarian principle as it allows
the same freedom to everybody in the race of life. People who start their
lives at a disadvantage rarely benefit, significantly from equality of
opportunity. because, unless they are distinctly superior in skills or upwardmobility tech they can never, catch up with the more fortunate and most
disadvantaged people never even get access to the supposedly equal
opportunity . . Equality of opportunity is also an asocial principle, because it
ignores the many invisible and cumulative hindrances in the way of
disadvantaged; in fact, unless the children of the poor are taken from their
parents at birth and brought up in middle class homes, most are
condemned to inequality of opportunity
6.11 Equality of treatment, observes Gans, may be interpreted in two ways.
On the one hand, it means treating people as roughly equal in impersonal
social intersections On the other hand, it means providing people with the
same resources regardless of their current resources of socio-economic
position; used in this sense, equality of treatment suffers from the same
drawback as equality of opportunity for to treat the disadvantaged uniformly

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with the advantaged will only perpetuate their disadvantage. Even in the
courts which pride themselves on equality of treatment before the law, the
defendant who can afford only a poor or overworked lawyer will not often
obtain equal treatment from the judge.
6.12 In view of the above considerations, Gans observes, Consequently, the
only truly egalitarian principle is equality, of results, which may require Un
equal opportunity or treatment for the initially disadvantaged so that they
eventually wind, up equal in resources or rights.
6.13 If a tree is to be judged by its fruits, equality of results is obviously the
most reliable test of our aspirations and efforts to establish a just and
equitable order. A formidable task under any circumstance, it becomes
particularly so in a society which has remained segmented in a finely graded
caste hierarchy for centuries.
6.14 In fact the essence of Fundamental Rights itself remains unrealised
unless proper conditions are created for protecting the legitimate rights of the
under-privileged. Soon after Independence every State enacted land
reforms legislation, giving security of tenure to tenants and tillers, placed a
ceiling on land holdings, etc.. As the weak and poor tenants and cultivators
did not have the means to enforce their rights and the powerful land owners
had the resources and influence to evade ceiling laws, our land reform
measures have fallen far short of their objectives. Stronger sections of
society keep perpetrating all sorts of atrocities against Harijans and other
backward classes and they are generally able to get away without any
punishment. Our entire legal apparatus is so expensive and time-consuming
that under privileged sections of society generally do not have the means
or stamina to get justice from law courts. Under these circumstances, the
claim of Equality before the law does not carry much conviction with the
weaker sections of Indian society. Equality of results being the real acid test
of effective equality, there is no running away from the fact that our
sovereign democratic republic will remain seriously flawed unless a fair
share of the fruits of freedom Equality of opportunity and Equality of
treatment are also made available to the backward sections of our people.
In this connection, Shri Justice K.Subba Rao has observed:
@.......unless adventitious aids are given to the under privileged people,
it would be impossible to suggest that they have equal opportunities with
the more advanced people. This is the reason and the justification for the
demand of social justice that the under-privileged citizens of the country
should be given a preferential treatment in order to give them an equal
opportunity with other more advanced sections of the community.
6.15 In this connection nothing generates so much heat and genuine
indignation as the concept of merit . Whereas nobody objects to the grant of
special educational facilities and various other concessions to the backward
classes, the provision of a reserved quota in educational institutions or
services for members of Scheduled Castes, Scheduled Tribes or Other
Backward Classes provokes sharp reaction. The advocates of merit find it
very unfair when a depressed class student securing 45% marks gets

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admission to a medical college in preference to a student from the general


quota obtaining 70% marks. The resentment is much greater when a lower
ranked backward class competitor is selected in preference to a much higher
ranked general quota counterpart to an All India Service.
6.16 This sort of reaction is based on two considerations. First, it hurts a
person s sense of fair play to see that a more meritorious candidate has
been left out in preference to a less meritorious person on purely
extraneous grounds. Secondly, it is argued, that by selecting candidates with
lower merit against reserved quota vacancies; the nation is being deprived
of the services o the best talent that is available to it.
6.17 This line of argument, though plausible on the face of it, suffers from a
serious fallacy regarding the nature of merit . We shall try to illustrate, this
point with a homely example. Mohan comes from a fairly well off middle
class family and both his parents are well educated. He attends one of the
good public schools in the city which provides a wide range of extracurricular activities. At home, he has a separate room to himself and he is
assisted in his studies by both the parents. There is a television and a radio
set in the house and his father also subscribes to a number of magazines. In
the choice of his studies and, finally, his career, he is continuously guided by
his parents and his teachers. Most of his friends are of similar background
and he is fully aware of the nature of the highly competitive world in which he
will have to carve a suitable place for himself. Some of his relations are fairly
influential people and he can bank on the right sort of recommendation or
push at the. right moment.
6.18 On the other hand, Lallu is a village boy and his backward class parents
occupy a low social position in the village caste hierarchy. His father owns a
4 acre plot of agricultural land. Both his parents are illiterate and his family of
8 lives huddled in a two-room hut. Whereas a primary School is located in
his village, .for his high school he had to walk a distance of neatly three
kilometers both ways. Keen on pursuing higher studies, lie persuaded his
parents to send him to an uncle at the Tehsil head quarters. He never
received any guidance regarding the course of studies to be followed or the
career to be chosen. Most of his friends did not study beyond middle-school
level. He was never exposed to any stimulating cultural environment and he
completed his college education without much encouragement from any
quarter. Owing to his rural background, he has a rustic appearance. Despite
his college education, his pronunciation is poor, his manners awkward and
he lacks self-confidence.
6.19 Assuming that Mohan and Lallu had the same level of intelligence at the
time of their birth, it is obvious that owing to differences in social, cultural and
environmental factors, the former will beat the latter by lengths in any
competitive field. Even if Lallu s intelligence quotient was much higher as
compared to Mohan, chances are that the former will lag far behind the latter
in any competition where selection is made on the basis of merit .
6.20 Let us suppose that both of them sit for the All India Services
examination and Mohan secures 50% more marks than Lallu. Does it mean

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that Mohan s merit is 50% higher than that of Lallu or, that, he will be 50%
more. efficient than that village boy. Is it possible to determine that, in view of
their respective native intelligence, how these boys would have faired in case
they had exchanged places? If merit also includes grit, determination, ability
to fight odds, etc., should not the marks obtained by Mohan and Lallu be
suitably moderated in view of the privileges enjoyed by the former and the
handicaps suffered by the latter?
6.21 In fact, what we call merit in an elitist society is an amalgam of native
endowments and environmental privileges. Mohan and Lallu are not equals
in any fair sense of the term and it will he unfair to judge them by the same
yard stick. The conscience of a civilized society and the dictates of social
justice demand that merit and equality are not turned into a fetish and the
element of privilege is duly recognised and discounted for when unequals
are made to run the same race .

8.46

Human rights are in alienable basic rights of human beings for a good
living in a free and peaceful atmosphere. Such rights may include
political and civil rights such as right to life, liberty, freedom of speech
and expression, religion etc., and economic and cultural rights such as
right to shelter, food, clothing, education, sanitation and health etc.,
Political and Civil rights are adumbrated under Part III fundamental
rights, while economic and cultural rights are listed in Part IV directive
principles of Constitution. Effective implementation and enjoyment of the
rights guaranteed under Part III is possible only by conferring upon the
people, the rights as promised under Part IV. As such the entirety of the
human rights as alleged both under Part III and Part IV of the
Constitution are to be realized and enjoyed by the people. Such rights
should be protected by rule of law which the implementing authorities
have to preserve, protect and maintain or otherwise rebellion against the
tyranny and oppression would raise their ugly heads. Pertinent to quote
at this juncture Part 3 of the preamble to the Universal Declaration of
Human Rights 1948 which prescribes: Whereas it is essential, if man is
not to be compelled to have recourse, as a last resort, to rebellion
against tyranny and oppression , that human rights should be protected
by the rule of law.

8.47

It is to be remembered here that when the founding fathers of the


Constitution were engaged in the preparation of the draft Constitution,
the Universal Declaration of Human Rights took shape and came into
existence in 1948. As such, the founding fathers of the Constitution could
in all probability have seized knowledge of the serious consequences to
flow in the society, but for the enforcement and protection of the
inalienable human rights as a whole namely, Civil rights, Political rights,
Social rights, Economic rights and Cultural rights, without giving any
undue importance to any of the rights. But the implementing authorities in
the process of interpretation of the provisions of the Constitution tinkered
it in such a way that the benefits intended to be conferred on the
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downtrodden, under privileged, marginalized sections of the society, as a


matter of fact did not reach them and consequently, they cannot be on
par with others and put them in the main stream.
8.48

The implementing authorities right from the commencement of the


Constitution, till up to now make it appear to the outside World as if that
they are the sworn enemies of social justice by their judgements not
reflecting the social ethos underlying in the Constitution, although they
have rendered lip service in flamboyant style that they alone protect the
social interest of the unprivileged and marginalized sections of the
society. Such attitudes of the implementing authorities were sought to be
prevented during the period of late lamented Prime Minister Jawaharlal
Nehru, unable to bear the stumbling blocks created by the implementing
authorities in the march of social order establishing an egalitarian society
by enactment of legislation. Nehruji thought fit to prevent such authorities
from interfering with the social reforms by the enactment of legislations
by the State and consequently inserted article 31(B) in the year 1951 and
IX schedule in the Constitution. The effect of the said article and the IX
schedule was that even if legislation is rendered null and void, the said
legislation would automatically get revived without putting to the
necessity of enactment of such legislation again. Further, any legislation
made by the Parliament or the Legislature of a State, if put in the IX
schedule after observing the necessary formalities prescribed therefor,
the implementing authorities have no power to strike down such
legislations even if they are opposed the fundamental rights.

8.49

Subsequently, so many legislations were enacted by the Parliament as


well as by the Legislatures of the various States on social reforms and
have been placed in the IX schedule so as to put them beyond the pale
of challenge in any superior courts of jurisdiction.

8.50

By the formulation of the basic structure concept, the Supreme Court


made the Parliament and the Legislatures of the State simply puppets,
not being in a position to reverse the judgements of the Supreme Court
by a way of the amendment of the Constitution or to enact any new
legislation on social reforms. Thus the will the people in this Country is
unable to be reflected either by the Members of the Legislative Assembly
of the States or by the Members of the Parliament by the enactment of
necessary of legislations to fulfill the aspirations, hopes of the people of
the Country and to set up an Egalitarian society as adumbrated by the
Constitution.

8.51

As such there is no salvation for the under-privileged, marginalized


sections of the society, unless and until the Constitution is changed by
way of referendum.

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8.52

The implementing authorities created a grudge and want of atmosphere


of cordiality with feelings of animosity among the Scheduled Castes
themselves by declaring that they constitute a homogenous group in
each and every State or Union Territories as contained in the list notified
by the President of India after the commencement of the Constitution
with Nil or little imagination or realization of the factual factors or
situations, although the list of Scheduled Castes had been prepared for
each and every State or Union Territories from the list of castes and
communities, race or tribes or part of such castes or communities, races
or tribes which by itself shows that Scheduled Castes is not a caste by
itself in the ordinary sense and form a homogenous group of people
without having a difference or distinction in the social milieu of such
group of people. They are in the very nature of things heterogeneous in
character. As a consequence of such declaration the weakest of the
weak among the Scheduled Caste did not in the least, enjoy the benefits
of reservation intended to be given to Scheduled Caste in different
percentage in different States depending upon the population and only a
few in the upper crust of the hierarchy of the Scheduled Castes enjoyed
exclusively the benefits of reservation.

8.53

Thus the various decisions of the implementing authorities in this country


not only created disharmony and conflict within the Backward Classes of
people on one hand, and the Scheduled Caste or Scheduled Tribe on the
other hand and what further more worse is, there is pell-mell, turmoil and
tension among the Scheduled Castes themselves.

8.54

These things apart, the social, educational and economic status of the
Backward Classes and Scheduled Castes or Scheduled Tribes though
there is a little bit raise is, however, not up to the level of the upper
crust of the higher caste hierarchy of this country.

8.55

It will be a mirage for the ushering in, of an egalitarian society in India


unless and until the so called epoch making judgements alleged to have
been rendered by the Superior Courts of jurisdiction of this country on
the interpretation of the various Articles of the Constitution such as
Article 14, 15, 16, 31(B) & 9th Schedule, 335, 341 and 368 are reviewed
and thereby getting the Constitution amended, making such
amendments feasible. Without the review of the earlier decisions on
various Articles as stated above and thereby getting the Constitution
amended, there can be no effective capacity building exercise for conflict
resolution in this Country. The alternate remedy is for a new Constitution
by way of referendum.

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8.56

However, the Second Administrative Reforms Commission, Government


of India suggested certain remedial measures for Capacity Building for
Conflict Resolution, as seen reflected in a crystallized form as under :8.2. Socio-economic survey
8.2.1. No socio-economic survey has been conducted of the Other Backward
Classes in the country. Some State Governments have conducted socioeconomic surveys of particular segments of the Other Backward Classes but
it is difficult to get a comprehensive picture of the socio-economic conditions
of the other backward classes in the country. It is therefore necessary that
Government immediately take up a socio-economic survey of the Other
Backward Classes.
8.3. Socio-economic Indicators:
8.3.1. Since 1998-99 some data relating to socio-economic position/status of
development of OBC has started appearing in various surveys viz.,
a) 1998-99 National Family Health Survey.
b) 1999-2000 Consumption Expenditure sample Survey in NSSO
c) 1999-2000 NSSO Report on Employment
d) 1999-2000 NSSO Report on Land Holdings
e) 2002-03 NSSO Report on Household assets and liabilities or Asset
and Debt Survey.
f) 2004-05 NSSO Draft Report on Employment
An analysis of NSSO data contained various Surveys and Reports and
provides following picture of socio-economic status of OBC (Figures 8.1 to
8.6)
Poverty
*The incidence of poverty among OBC is intermediate to that among SC/ST
on the one hand and the non-SC-ST-OBC (Others) on the other. In general
poverty among SC/ST is 3 times that of the Others , while for OBC it is
double that of the Others .
Health Indicators
*As far as the health indicators are concerned, the OBC are much closer to
Others , than to SC/ST, who are far behind.
Unemployment
*Open unemployment, as measured by the Usual Principal Status (UPS), is
more or less consistently higher among OBC than among Others .
*Unemployment, including underemployment, as measured by the Current
Daily Status (CDS) among OBC is the lowest among all social groups in rural
areas and not significantly less than the ST but less than Others in urban
areas.
Asset Ownership
*Asset ownership (including land) per household of OBC is double that of SC
and ST, but only about two-thirds of Others in both rural and urban areas.
Indebtedness
*However, the incidence of indebtedness, and consequently the debt to
asset ratio, is highest among OBC of all social groups. It also appears that
OBC borrow a lower proportion of their debt from institutional sources and
have higher dependence on informal sources as compared to all the other
social groups.

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8.4 Social Empowerment


8.4.1. Clearly, the socio-economic condition of the OBC is such that it would
require intervention to bring them on par with the Others and put them in the
mainstream. Schemes such as the Centrally Sponsored Scheme of Post
Matric Scholarship, which is available to SC, could be extended to OBC
including minorities. Various evaluation studies conducted of the scheme by,
among others, the Babasaheb Ambedkar National Institute of Social
Sciences (2000), Tata Institute of Social Sciences (1999), Centre for
Research Action and Training (2000) have recommended that this benefit
should be extended to other economically and socially backward
communities including the minority communities.
8.4.2. The 2001 Census shows that the literacy rate among Muslims at 59.1
per cent is below the national average of 64.8 per cent. The educational
status of Muslim women, with a literacy rate of 50.1 per cent, is very low. For
the educational uplift of the Muslims, particularly of the girl child, it is
important to ensure that in localities with concentrations of population of the
Muslim Community, primary schools are established in adequate numbers.
8.4.3. On the whole, special schemes on the lines of the schemes for SC
and ST need to be taken up for social empowerment of the OBC.
8.5 Economic Empowerment
8.5.1 as mentioned earlier, the NSSO surveys reveal that the incidence of
poverty among OBC is intermediate to that among SC/ST on the one hand
and the Others , on the other. We have also seen how open unemployment
is consistently higher among OBC than among Others . As far as asset
ownership including land is concerned, the ownership is only about twothirds of Others in both rural and urban areas. The incidence of
indebtedness and consequently the debt to asset ratio is highest among
OBC of all the social groups.
8.5.2 Clearly, if the OBC are to be put on par with Others and made a part
of the mainstream, they have to be empowered economically through
employment and income generation activities and alleviation of poverty.
What is required is a comprehensive package of schemes, on the lines of
those drawn up for SC and ST, to enable the OBC to develop their potential
and capacities as agents of social change, through a process of planned
development.
8.6. Recommendations
a. Government may work out the modalities of a survey and take up a
statewise socio-economic survey of the Other Backward Classes , which
could form the basis of policies and programmes to improve their status.
b. Government needs to formulate and implement a comprehensive scheme
for capacity building of OBC that would bring them at par with the rest of
society.

8.57

This Commission endorses the factual findings, as recorded and the


recommendations made therefor by the Second Administrative Reforms
Commission, Government of India in its Seventh Report on Capacity
Building for Conflict Resolution.

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9.

BASIC STRUCTURE THEORY A DANGLING SWORD


ABOVE THE HEADS OF BACKWARD CLASSES

9.1

The basic structure theory as propounded by the Supreme Court in


Keshavananda Bharati v. State of Kerala [AIR 1973 SC 146] for the first
time and got the affirmation by subsequent decisions calls for review.

9.2

In Sankari Prasad Singh Deo v. Union of India [AIR 1951 SC 458], the
Supreme Court held that no part of our Constitution is unamendable and
that Parliament may, by passing a Constitution Amendment Act, in
compliance with the requirements of Article 368, amend any provision of
the Constitution, including the Fundamental Rights and Article 368 itself.
But in Golaknath I.C. v. State of Punjab [AIR 1967 SC 1643], the majority
of 6 Judges of a Special Bench of 11 overruled Sankari Prasad Singh
view that though there is no express exception from the ambit of Article
368, the Fundamental Rights included in Part III of the Constitution
cannot, by their very nature, be subject to the process of amendment
provided for in Article 368 and that if any such right is to be amended, a
new Constituent Assembly must be convened for making a new
Constitution or radically changing it.

9.3

The igniting case for the ushering in of the Constitution (Twenty fourth
Amendment) Act, 1971 was the majority decision in Golaknath. The
decision in Golaknath was superseded by the said amendment by
inserting clause (4) in Article 13 and clause (1) in Article 368 as a result
of which an amendment of the Constitution, passed in accordance with
Article 368, will not be law within the meaning of Article 13 and the
validity of a Constitution Amendment Act shall not be open to question on
the ground that it takes away or affects a fundamental right. This
amendment has been held to be valid and the decision in Golaknath had
been overruled by a Full Bench of the Supreme Court in Keshavananda
Bharati.

9.4

Keshavananda Bharati also laid down a proposition that though


fundamental rights constituted no limitation on the amending power,
there were other implied limitations, viz., its power to amend could not be
used to alter the basic features of the Constitution or to make a new
Constitution. The late lamented Prime Minister Smt.Indira Gandhi, in
rather a bid to contain and control the aforesaid proposition, inserted
clauses (4) and (5) in Article 368 of the Constitution by the Constitution
(Forty second Amendment) Act, 1976 which read as under :-

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(4) No amendment of this Constitution (including the provisions of Part III)


made or purporting to have been made under this article [whether before or
after the commencement of section 55 of the Constitution (Forty-second
Amendment) Act, 1976] shall be called in question in any court on any
ground.
(5) For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power of Parliament to amend by way
of addition, variation or repeal the provisions of this Constitution under this
article.

Thus, the later view in Keshavananda Bharati was superseded by


clauses (4) and (5) providing that,(a) there was no limitation expressed or implied upon the amending
power under Article 368 (1) on its constituent power ; and
(b) the Constitution Amending Act would not therefore be subject to
judicial review on any ground.
9.5

The Forty-second amendment has in its turn been superseded by a


Constitution Bench decision in Minerva Mills v. Union of India [AIR 1980
SC 1789] which has adhered to the decision in Keshavananda Bharati,
invalidating clauses (4) and (5) as violating the basic features of the
Constitution viz., the limited nature of the amending power under Article
368 and judicial review. It is further stated therein that the donee of the
power, ie., the Parliament, cannot, in exercise of this limited power
convert their limited power into an unlimited one, or destroy the
limitations on that power.

9.6

After the reaffirmation and extension of the applicability of the doctrine of


basic structure or basic feature in the Minerva Mills case, it is obvious
that so long as the decision in Keshavananda Bharati is not overruled by
another larger Bench of the Supreme Court, any amendment of the
Constitution is liable to be interfered with by the Court on the ground that
it affects one or other basic features of the Constitution.

9.7

In Smt. Indira Nehru Gandhi v. Raj Narain [AIR 1975 SC 2299] it has
been observed that the claim of any particular feature of the Constitution
to be basic feature would be determined by the Court in each case that
comes before it. In result, it is for those responsible for amending the
Constitution to give what surprise lies in store for them before the
Supreme Court.

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9.8

The Constitution Bench in Waman Rao & Ors v. Union of India [AIR 1981
SC 271], appears to have refused to give retrospective effect to the
doctrine of basic feature as propounded in Keshavananda Bharati. The
reason, it is said, is that since the doctrine of basic feature derives from
the decision in Keshavananda Bharati, it should not be applied to reopen the validity to the Constitutional amendment which took place prior
to 24/4/1973, the date of the judgment in Keshavananda Bharati. It is
only Amendment Acts passed subsequent to the day it should be liable
to attack on the basis of the doctrine of basic feature, of course, on
proper interpretation.
In Keshavananda Bharati, decided on April 24, 1973, it was held by the
majority that Parliament has no power to amend the Constitution so as to
damage or destroy its basic or essential features or its basic structure. We
hold that all amendments to the Constitution which were made before April
24, 1973 are valid and constitutional.
Amendments made to the Constitution on or after April 24, 1973, are open to
challenge on the ground that they, or any one or more of them, are beyond
the constituent power of the Parliament since they damage the basic or
essential features of the Constitution or its basic structure.
The theory that Parliament cannot exercise its amending power so as to
damage or destroy the basic structure of the Constitution, was propounded
and accepted for the first time in Keshavananda Bharati..

It would be profitable to reproduce herein what the Supreme Court said


in Waman and it gets reflected as under:Going to divergence among the opinions of several judges, it is very difficult
to ascertain what is the opinion of the majority in the 13 Judge Bench of
Keshavananda. It is the decision of Khanna J, which broke the tie between
the rest of the Judges. It is to his judgment that one must refer to find out the
majority decision in Keshavananda. The majority held that though the
Constitution itself did not exempt any of its provisions from the amending
power conferred by Article 368 and though the said Article 368 does not
admit any implied limitations on the amending power, the meaning of the
very word amend is to the following limitations; while any piecemeal
change may be made, the old Constitution cannot be totally destroyed or so
radically changed as to lose its identity. Hence the basic structure or the
basic feature of the existing Constitution cannot be amended through the
process of amendment as provided in Article 368.

9.9

In M.Nagaraj v. Union of India [AIR 2007 SC 71], the Supreme Court


traced the origin of basic structure. The sum and substance of what it
said in regard thereto, is getting reflected [at page 225] in paragraphs 20,
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The doctrine of basic structure has essentially emanated from the German
Constitution. Therefore it may be useful to look at common constitutional
provisions under German law which deal with rights, such as, freedom of
press or religion, which are not mere values, they are justiciable and capable
of interpretation. The values impose a positive duty on the State to ensure
their attainment as far as practicable. The rights, liberties and freedoms of
the individual are not only to be protected against the State; they should be
facilitated by it. They are to be informed. Overarching and informing of
these rights and values is the principle of human dignity under the German
basic law. Similarly, secularism is the principle which is the overarching
principle of several rights and values under the Indian Constitution.
Secularism in India has acted as a balance between socio-economic reforms
which limit religious options and communal developments. Therefore,
axioms like secularism, democracy, reasonableness, social justice, etc. are
overarching principles which provide linking factor for principle of
fundamental rights like Articles 14, 19 and 21. These principles are beyond
the amending power of Parliament. They pervade all enacted laws and they
stand at the pinnacle of the hierarchy of constitutional values. For example,
under the German constitutional law, human dignity under Article 1 is
inviolable. The expression life in Article 21 of the Indian Constitution does
not connote merely physical or animal existence. The right to life includes
right to live with human dignity. It is the duty of the State not only to protect
human dignity but to facilitate it by taking positive steps in that direction. No
exact definition of human dignity exists. It refers to the intrinsic value of
every human being, which is to be respected. It cannot be taken away. It
cannot be given. It simply is. Every human being has dignity by virtue of his
existence. The constitutional courts in Germany, therefore, see human
dignity as a fundamental principle within the system of the basic rights. This
is how the doctrine of basic structure stands evolved under the German
Constitution and by the interpretation given to the concept by the
constitutional courts.

9.10

Each country is having its own Constitution. While framing the


Constitution, the founding fathers normally take into consideration the
historical, sociological, economic and other relevant factors affecting the
people at large and such other factors requisite and necessary for the
ushering in or formation of a societal order intended to be created,
besides the type of the Government for the governance of the country,
taking into account the peculiar and unique features then prevalent in the
country.

9.11

No doubt true it is, that at the time when the Indian Constitution was in
the anvil of formulation, the Universal Declaration of Human Rights 1948
had more or less virtually come into existence. Besides, the American,
Russian, Australian and Canadian Constitutions were also in existence
before the Indian Constitution was made. The founding fathers, while
framing the Constitution for India, copiously copied from the various
Constitutions then available at the global level and also from the
Universal Declaration of Human Rights, 1948.
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9.12

Several basic inalienable human rights had been recognised not only in
the Universal Declaration of Human Rights, 1948 but also in the
Constitution of other countries at the global level.

9.13

Right to self-determination had been recognized as a basic inalienable


human right in the Universal Declaration of Human Rights, 1948.
Similarly, right to secession had been recognized in the Constitution of
USSR and also of the United States. But so far as India is concerned,
right to secession or self-determination had not been recognized as an
inalienable fundamental right in Part III of the Constitution of India. The
fact that very many inalienable basic and immordial human rights had
been recognized as fundamental rights of human beings, it does not
mean that all such inalienable fundamental rights of human beings are
required to be incorporated in the Constitution of a country. It is only
such of those human rights inalienable, basic, as are recognized to be
incorporated in the Constitution of any country which alone can be
regarded as justiciable human rights and not other human rights.

9.14

In describing or extracting the human rights certain words, expressions


or terminologies are used in the Constitution. The meaning to be
ascribed to the words, expressions or terminologies used in the
Constitution of India cannot at all be expected to be given the same
meaning as has been given to the same words, expressions or
terminologies given by the superior courts in such other countries.

9.15

The concept of equality before law and equal protection of law clause is
traceable to the Fourteenth amendment of the American Constitution.
The meaning to be ascribed to the expression equality before law or
equal protection of law in the United States by the Courts therein cannot
at all be expected to be ascribed in the Indian context by the Indian
Courts when especially such expressions or words are not defined in the
Constitution of the respective countries. In India, we are having such
clauses viz., equality before law and equal protection of law which are
traceable to Article 14 of the Constitution. Indian Courts, it appears,
drew inspiration from the superior courts of the U.S. to ascribe the
meaning to the expressions equality before law and equal protection of
law clauses. Such attitude of Indian Courts actually more or less
tinkered the Indian Constitution to large extent. The reason bristles to
this: - In the United States, the economic policy is one of leissez faire in
nature. The structure of the society therein is different. Different
sections of the people belonging to different races are settled therein.
There is no question of any caste. The standard of living of majority of
those people is very high, being more or less equal. The structure of the
society therein is such as it is possible for all the people to enjoy the
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minimum amenities of life with ease and grace and without any difficulty
whatever. In India, the pernicious caste system has been prevalent from
time immemorial. Caste is affixed or attached to a person on his birth
and remains for ever from cradle to grave. A person belonging to one
caste, on death, cannot be buried in the graveyard of other caste people.
Caste also creates status in society, i.e., the status of a person belonging
to various castes is not one and the same. There is still recognition in
Hindu communities, of touch pollution and distance pollution. The
structure of society in India is basically different from that of the United
States. Vast majority of people living in India are poor and povertystricken. Only very few people are grotesquely rich. There is an ocean
or gulf of difference in the standard of living of the various cross-sections
of the society in the Indian context. The hierarchy of higher castes
people had been in the forefront in all walks of life. Right from the British
Raj till upto the dawn of Independence, hierarchy of higher castes
occupied more or less the entirety of the services of the State and
education particularly University education had been the exclusive
preserve of the hierarchy of higher castes, the consequences of which is
that they occupied almost all professional careers like medicine,
engineering, etc. The education provided employment to such castes of
people and consequently they were enriched in their life. Most of the
downtrodden sections of the society viz., backward classes had been
living in impecunious circumstances and they were denied of any
opportunity for good education and deprived of any position in the
services of the State. They were mostly eking out their livelihood by
engaging themselves in agricultural operations or serving as labourers.
The expressions equality before law and equal protection of law were
meant to mean formal or strict equality recognized by law in countries
like the United States. Such meaning to those expressions, if given in
India by courts, can anyone imagine that the downtrodden sections of the
society viz., the backward classes, Scheduled Castes and Scheduled
Tribes can ever climb the ladder of life by entering into educational
institutions and occupying the services under the State held in
occupation by the hierarchy of higher castes?
Therefore, the
expressions equality before law and equal protection of law cannot at
all be expected to be ascribed the same sort of meaning as has been
given in the U.S., in India by the courts in this country. Instead of formal
equality or strict equality, equality of results must have to be recognized
and applied in the Indian context besides the adoption of positive
discrimination policy to enable the downtrodden sections of the society
as has been referred to above, to achieve a level playing field of the
other sections of the society including the hierarchy of higher castes.

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9.16

In the Indian context, human dignity or respect has not at all been
recognized to be incorporated as an inviolable human right. The German
Constitution adumbrates the basic rights in Articles 1 to 19. Article 1
deals with Protection of Human dignity. Basic rights such as rights of
liberty (Article 2), freedom of faith, of conscience and of creed which
includes undisturbed practising of religion guaranteed (Article 4),
freedom of expression including freedom of press (Article 5) and other
basic rights are dealt with under Articles 6 to 19.

9.17

Clause (1) of Article 1 gives protection of human dignity. Human dignity


is so sacrosanct and perhaps the dignity of man is inviolable. It enjoins
on all State authorities a duty to respect and protect it; clause (2) of
Article 1 acknowledges human rights as the basis of every community, of
peace and of justice in the world; clause (3) prescribes that the basic
rights bind the legislature, the executive and the judiciary as directly
enforceable law.

9.18

A cursory perusal of the provisions of the German Constitution does not


at all enunciate or propound the doctrine of basic structure. Articles 2 to
19 enumerates the basic rights of human beings such as right to liberty,
equality before law, etc., as the fundamental rights had been the basic
rights of human beings in the Indian Constitution.

9.19

The Supreme Court interpreted the German Constitution in such a way


that the basic rights adumbrated in Articles 2 to 19 liberty and freedom
of individuals are not only to be protected against the State, they
should be facilitated by it, and the citizens are to be informed of it. The
Supreme Court further says that overarching and informing of these
rights and values is the principle of human dignity under the German
Constitution. This sort of an interpretation and analogy rather appears to
be far from correct. Clause (1) of Article 1 of the German Constitution
places so much emphasis on human dignity and it should be protected
by all the State authorities. As such, it stands by itself and divorced of
other basic rights. To put it otherwise, a mandate is cast on all State
authorities to protect and respect the dignity of man. So far as the other
basic rights adumbrated in the Indian Constitution as well as the German
Constitution, as clause (3) of Article 1 says, shall bind the legislature, the
executive and the judiciary as directly enforceable law. As such, there is
no linking factor between the other basic rights as enumerated in Articles
2 to 19 and the basic rights as adumbrated under Clause (1) of Article 1
relatable to protection of human dignity.

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9.20

Secular is in the adjective form for the word Secularism. The word
Secularism has been defined at page 1093 of the Concise Oxford
Dictionary, The New Edition for the 1990s as below:secular. 1. adj. concerned with the affairs of this world; not spiritual or
sacred. 2.(of education etc.) not concerned with religion or religious belief.
3.a.not ecclesiastical or monastic. b. (of clergy) not bound by a religious rule.
4.occurring once in an age or century. 5.lasting for or occurring over an
indefinitely long time.

The opposite or antonym for the word secularism is spiritualism. The


meaning for the word spiritual has been defined at page 1174 of the
said Dictionary as below:spiritual adj.1. of or concerning the spirit as opposed to matter.
2. concerned with sacred or religious things; holy; divine; inspired (the
spiritual life; spiritual songs). 3. (of the mind etc.) refined, sensitive; not
concerned with the material. 4.(of a relationship etc.) concerned with the soul
or spirit etc., not with the external reality (his spiritual home)

9.21

The Preamble to our Constitution as originally enacted does not contain


the words socialist and secular. These two words were inserted in the
Preamble by the Constitution (Forty second Amendment) Act, 1976, with
effect from 3.1.1977. From the insertion of these two words, the
Preamble read :
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a SOVEREIGN SOCIALIST SECULAR 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 and integrity of the Nation;

As such, India has been proclaimed to be a SOVEREIGN SOCIALIST


SECULAR DEMOCRATIC REPUBLIC. The various adjective-words
viz., SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC
declare in unambiguous terms the nature of our Nation. As such, India
has been declared to be a secular nation. It is not a theocratic nation.
The word secular as such, has been added to the Preamble of the
Constitution to indicate the nature of the Nation not with a view to serve
as a linking factor to the principles of fundamental rights Articles 14, 19
and 21 as has been stated by the Supreme Court. The Supreme Court
further stated that apart from secularism, democracy, reasonableness,
social justice are also overarching principles which provide linking factor
for principle of fundamental rights like Articles 14, 19 and 21.
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The Supreme Court really admits and states that the exact definition of
human dignity exists. The expression life in Article 21 of the Indian
Constitution, the Supreme Court says, does not merely connote merely
physical or animal existence. The right to life includes right to live with
human dignity. It is the duty of the State not only to protect human
dignity but to facilitate it by taking positive steps in that direction. It is just
like the German Constitution wherein human dignity under Article 1 is
inviolable.
Under the German Constitution, human dignity is a
fundamental principle within the system of basic rights. This is how the
doctrine of basic structure has been evolved therein. The analogy of the
Supreme Court is not acceptable. All fundamental rights guaranteed
under the Constitution are basic, inalienable and immordial rights of
human beings.
9.22

The Supreme Court, in M.Nagaraj, states that it is a fallacy to regard


fundamental rights as a gift from the State to its citizens. Individuals
possess basic human rights independently of any Constitution by reason
of the basic fact that they are members of the human race. These
fundamental rights are important as they possess intrinsic value. Part III
of the Constitution does not confer fundamental rights. It confirms their
existence and gives them protection. Its purpose is to withdraw certain
subjects from the area of political controversy to place them beyond the
reach of majorities and officials and to establish them as legal principles
to be applied by the courts. This statement of the Supreme Court in
M.Nagaraj is far from correct.

9.23

As already stated, there are ever so many basic human rights and it is
only such of those human rights that are incorporated in the Constitution
as fundamental rights, are overarching and enforceable and not other
rights. Incorporation of basic human rights as a fundamental right in the
Constitution has to be performed by the founding fathers of the
Constitution viz., the Constituent Assembly. The Constituent Assembly
itself is nothing but a composition of the representatives elected by the
people of the country so as to make the drafting of the Constitution as
reflecting the will of the people of the country.

9.24

The Constituent Assembly constituted in India before the dawn of


Independence by the efforts of the British Cabinet Mission does not
consist of the elected representatives of the people, but it did consist of
members indirectly elected for the various Provincial Councils then in
existence and State Rajpramukhs. As such, the composition of the
Constituent Assembly which was responsible for the drafting of the
Indian Constitution admittedly consisted of hierarchy of higher caste
people and the State Rajpramukhs who did not descend from any
downtrodden sections of the society. The Constitution was drafted by
such a Constituent Assembly long before the dawn of Independence on
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August 15, 1947. India became a Republic in 1950 and the Constitution
came into force. The first Parliamentary Elections took place in 1951.
The constitution as devised and drafted before the dawn of
Independence by the Constituent Assembly was not at all placed before
the elected representatives of the people in the Parliament and got their
approval. It is only the Constitution as drafted by such a Constituent
Assembly provided for the fundamental rights chapter under Part III of
the Constitution. For the sake of necessity, it may be reiterated and
stated that all human rights recognized as inalienable basic human rights
are not incorporated as fundamental rights under Part III of our
Constitution. The rights granted as fundamental rights under Part III of
our Constitution are granted by the so called Constituent Assembly
representing the will of the people, though it is not actually so. Right to
self-determination is a basic inalienable human right recognized by the
Universal Declaration of Human Rights 1948. Such a right is not
traceable anywhere in the Indian Constitution. Therefore, the inalienable
basic human rights included in the Constitution can be considered only
as gifts granted. Therefore the view of the Supreme Court on such
aspect of the matter does appear to be far from correct.
9.25

The Constitution cannot be stated to be static. It must be a dynamic one


catering to the needs of the changing society and meet their aspirations,
hopes and expectations. It must also be able to meet the ever changing
atmosphere by the advancement of science and technology. The
founding fathers of the Constitution lying in the grave cannot be expected
to lie that the Constitution they had enacted was a constitution forever,
that is, for the past generation, for the present generation, for the future
generation and forever. The recognized Constitutional canon at the
global level is that the generation must be given the choice to have its
own Constitution. Older generation cannot be expected to say that the
Constitution as has been enacted by them is a Constitution forever. If
the Constituent Assembly had the power to incorporate a basic human
right as a fundamental right in the Constitution, it equally goes without
saying that the very same Constituent Assembly which granted it has the
necessary and requisite power to withdraw the rights earlier granted, in
the sense of amending, altering or repealing the provisions of the
Constitution. It is equally so, the Constituent Assembly of the Parliament
consisting of elected representatives of the people must have the
necessary and requisite power to change, amend, alter or repeal the
provisions of the Constitution.

9.26

Certain historic factors have to be explored relating to entry of Aryans


into India, their four Vedas, two great epics Ramayana and
Mahabharata, books of Brahmanas, the Aranyakas, the Upanishads and
the Puranas, in order to understand in a clear cut fashion the varna
system coming into operation in the Indian context and getting
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perpetuated for thousands of years creating a division among the Indian


folks into various castes and communities granting graded status to such
castes and communities not only affecting their dignity as a human being
but also standing as an insurmountable obstacle for attaining equal
graded status to that level with the Brahmins sitting in the apex of the
pyramid being superior to one and all.
9.27

The authoritative historical factors to be referred therefor are traceable to


certain books prescribed for school education as devised by National
Council of Educational Research and Training (NCERT) syllabus. There
is a lesson under the caption 5. The Vedic Period and Chalcolithic
Settlements in the textbook Getting Ahead in Social Science 6 History
(as per the new syllabus prescribed by the NCERT). The said lesson
gives a vivid picture of:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)

The coming of the Aryans (period when they came to India)


Where did they come from?
What is the evidence for the coming of the Aryans?
Where did they live?
How were they ruled?
What kind of a society prevailed?
How was society categorized?
What was their occupation?
What did they worship?
The religious books of the Aryans
Chalcolithic settlements in the rest of India

The portions of the lesson under the aforesaid various topics run as
under:1.The coming of the Aryans
Around the time the Indus civilization declined, new groups of people came
into the Indian subcontinent from the north-west. Historians call these
people the Aryans.
We have learnt almost everything that we know about the Aryans from their
sacred religious books called the Vedas. This period of Indian history is
therefore also known as the Vedic period.
2. Where did they come from?
The Aryans are thought to have originated in the areas surrounding the
Caspian Sea in southern Russia. They were basically pastoralist (people
who kept cattle). When pasture land became scarce in their homeland,
groups of Aryans are believed to have left their homeland in search of fresh
pastures for their cattle. Some groups went westwards towards Europe and
some, through Persia and Afghanistan, moved to India.
The Aryans spoke a language which is believed to be the root of Greek,
Persian, Sanskrit and German. There are several words in common
between these languages. For example, the word for mother is mater in

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Latin, meter in Greek, mutter in German, and matr in Sanskrit; the word for
father is pater in Latin and in Greek, vater in German, and pitr in Sanskrit.
The Aryans brought with them the horse and the horse-drawn chariot, two
things which were relatively unknown in the Indian subcontinent. They are
also believed to have brought the use of iron into India. Hence, their arrival
marks the beginning of the Iron Age in northern India.
3. What is the evidence for the coming of the Aryans?
There is some archaeological evidence of this period. Archaeologist identify
two types of pottery that are believed to be associated with the Aryan
settlers. One is black-and-red ware (BRW), found in the Indo-Gangetic
divide and the upper Ganga-Yamuna doab (the land between two rivers).
This has been dated to around 1450 to 1200 BC. The second is painted
grey ware (PGW), which has been dated to 1000 to 600 BC. It has been
found in the middle and eastern Gangetic Plain. Major sites include
Sardargarh, Bairat and Noh in Rajasthan, Panipat and Ropar in Haryana,
Delhi and Alamgirpur, Hastinapur, Atranjikhera and Kannauj in Uttar
Pradesh. Painted grey ware is typically grey in colour, finely made and
painted with black or red geometric patterns. The shapes include flat-based
convex-sided dishes, bowls, and vases (lotas).
4. Where did they live?
The Rig Veda, the first book of the Vedas, tells us that after crossing the
Himalayas, around 1700 to 1500 BC, the Aryans first settled down in the
region surrounding the Indus and its tributaries. The region was known as
the Sapta Sindhu. The people were grouped into tribes. Cattle was their
main source of wealth as it gave them milk, ghee and meat. The more the
cattle, the wealthier the tribe was. So, it was not uncommon to have cattle
wares.
From 1000 BC to around 600 BC, the Aryans spread from Sapta Sindhu
region into the Indo-Gangetic plains. They cleared the thick forests by
cutting and burning them. The land was then used for cultivation and
settling.
The people lived in wattle and daub houses. Wattle and daub houses have
a frame made of interwoven branches or wooden rods (wattle) that are then
covered with clay (daub).
5. How were they ruled?
The rajan was the chief of the tribe. He was chosen by the people. He was
assisted by the commander in-chief of the army, known as the senani, and
the priest or the purohit. The rajan was also advised by two assemblies of
elders known as the sabha and the samiti. The most qualified member of
the tribe was selected as the next rajan. The rajan received gifts in kind. He
also received a share of the plunder when cattle raids took place. There was
no regular tax.
In course of time, the rajan became more powerful. The chiefs battled
among themselves for more land. The victorious chief assumed more titles
as more power was gained. From various texts and epics we know that Kuru
and Panchala were powerful tribes. The rajan performed sacrifices like the
Rajasuya and Ashwamedha (horse sacrifice) to gain supremacy over other
chiefs.
As the rajan became more powerful, the sabha and the samiti lost their
significance.

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6. What kind of a society prevailed?


The smallest unit of society was the kula or the family. The eldest male
member of the family, who was known as the grahapati, headed the kula.
His decisions were final. His children and grandchildren too lived with him as
a joint family. A number of kulas together were known as a vis or clan; a
number of clans became a jana (tribe). A number of janas formed a grama
(village).
Some women participated in assemblies, but this was not a universal
practice. In later years, however, women came to be considered inferior.
They were no longer allowed to attend assemblies.
7. How was society categorized?
The people who composed the Vedas called themselves arya or noble ones
and those whom they opposed as dasyus or dasas. Historians believe that
the dasyus were the original inhabitants of the land. As the Aryans
increased in number and started migrating further into the Indo-Gangetic
plain and the Deccan Plateau, they had to fight the local inhabitants for the
possession of the land. The defeated people were taken as slaves.
Aryan society was also classified on the basis of occupation or profession
into four varnas or classes. The Brahmins were the priests, the kshatriyas
were the rulers and the warriors, and the vaishyas were the traders,
cultivators and skilled workers. The shudras served the other three groups
and did the menial jobs.
There is a hymn in the Rig Veda which tells that the classes mentioned were
not hereditary and could be interchanged.
However, over a period of time, it became difficult for people to move out of
the varna or class they were born into. The system was no longer based on
ones profession. It had become hereditary. Imagine a pyramid. At the top
were the brahmins, the priestly class. They held high positions because they
were necessary for conducting all rituals. Next in importance were the
kshatriyas or the warriors. By acquiring more lands, they had become
powerful. The vaishyas were next on the pyramid. They had become
wealthy and powerful due to their trading activities. At the bottom of the
pyramid were the shudras.
8. What was their occupation?
The Aryans led a simple life. Agriculture and cattle rearing were their
important occupations. As more people turned to agriculture as a means of
livelihood, cattle as a source of wealth became less significant and land
became more valuable.
The people grew rice, wheat and barley. People also worked as potters,
weavers, carpenters and chariot makers. The barter system was in practice,
i.e., goods were exchanged without the use of money. Long-distance trade
was not common.
After 1000 BC, agriculture became the most important occupation. Iron
made farming equipments far more superior and this played a vital role in
bringing more land under cultivation. With technology and a better lifestyle,
a variety of occupations like leather making and jewellery making came up.
The people started trading with places across the seas too.
The Aryans appear to have given a lot of importance to recreation they
engaged in hunting, wrestling, gambling, music and dance.

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9. What did they worship?


The Aryans worshipped the sky, the wind, the rain, fire and other elements of
nature as gods and goddess. The god of thunder and war was Indra, the
most important of all. Other gods worshipped included Surya, the Sun god,
Varuna, the god of rain, Prithvi, the goddess of the Earth, and Agni, the god
of fire. Sacrifices or yagnas were performed to keep the gods and
goddesses happy.
In the course of time, as the Aryans slowly spread across northern India,
they started worshipping new gods like Brahma, Vishnu and Shiva.
Goddesses like Saraswati and Lakshmi were also worshipped. Several
rituals were considered necessary to make them happy. The rituals became
elaborate over time.
10.The religious books of the Aryans
The Vedas were the main religious books of the Aryans. The Vedas contain
hymns (songs in praise of god) composed in Sanskrit. They also contain
details of rituals to be performed to appease the gods.
There are four Vedas the Rig Veda, the Yajur Veda, the Sama Veda and
the Atharva Veda. The Rig Veda is the oldest of the Vedas it is believed to
have been composed between 1700 and 1100 BC. It consists of 1029
hymns. Apart from the Vedas, the other religious books of the Aryans
include the Brahmanas, the Aranyakas, the Upanishads, the Puranas and
the epics the Ramayana and the Mahabharata. These books tell us about
the life of the Aryans their beliefs, the nature of their society, their political
set-up, their dress and food habits, the occupations they followed, and the
nature of their economy.
11.Chalcolithic settlements in the rest of India
Around the time the Indus Valley settlements were declining in the northwest, and the Aryans started coming into India, agriculture-based life had
started in other parts of the country. More than a thousand Neolithic and
Chalcolithic sites that flourished between 2000 BC and 500 BC have been
discovered in various parts of the country. The Chalcolithic Age, as you saw
in Chapter 2, was a period when copper and bronze were used, along with
stone, for the production of tools, weapons and ornaments. Thus, along with
copper tools, the Chalcolithic settlements also used stone microliths, flakes
and blades, stone and terracotta sling balls.

9.28

We may usefully refer to the following passages as available at pages 64


to 66 of the textbook Themes in Indian History Part I [Textbook in
History for Class XII] :
3.4. Beyond the four varnas: Integration
Given the diversity of the subcontinent, there were and always have been,
populations whose social practices were not influenced by Brahmanical
ideas. When they figure in Sanskrit texts, they are often described as odd,
uncivilized, or even animal-like. In some instances, these included forestdwellers for whom hunting and gathering remained an important means of
subsistence. .
Categories of people who were viewed with suspicion included populations
such as nomadic pastoralists, who could not be easily accommodated within
the framework of settled agriculturists. Sometimes those who spoke non-

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Sanskritic languages were labeled as mlechchhas and looked down upon.


There was nonetheless also a sharing of ideas and beliefs between these
people.
The nature of relations is evident in some stories in the
Mahabharata.
3.5. Beyond the four varnas: Subordination and conflict
While the Brahmanas considered some people as being outside the system,
they also developed a sharper social divide by classifying certain social
categories as untouchable. This rested on a notion that certain activities,
especially those connected with the performance of rituals, were sacred and
by extension pure. Those who considered themselves pure avoided taking
food from those they designated as untouchable. In sharp contrast to the
purity aspect, some activities were regarded as particularly polluting.
These included handling corpses and dead animals. Those who performed
such tasks, designated as chandalas, were placed at the very bottom of the
hierarchy. Their touch and, in some cases, even seeing them was regarded
as polluting by those who claimed to be at the top of the social order.
The Manusmriti laid down the duties of the chandalas. They had to live
outside the village, use discarded utensils, and wear clothes of the dead and
ornaments of iron. They could not walk about in villages and cities at night.
They had to dispose of the bodies of those who had no relatives and serve
as executioners. Much later, the Chinese Buddhist monk Fa Xian (c. fifth
century CE) wrote that untouchables had to sound a clapper in the streets
so that people could avoid seeing them. Another Chinese pilgrim, Xuan
Zang (c. seventh century), observed that executioners and scavengers were
forced to live outside the city.
By examining non-Brahmanical texts which depict the lives of chandalas,
historians have tried to find out whether chandalas accepted the life of
degradation prescribed in the Shastras. Sometimes, these depictions
correspond with those in the Brahmanical texts. But occasionally, there are
hints of different social realities.

9.29

From what has been extracted above, the salient points necessary for
the present purpose are reflected as below:(1)

(2)

(3)

(4)

The Rig Veda tells us that after crossing the Himalayas, around
1700 to 1500 BC, the Aryans first settled down in the region
surrounding the Indus and its tributaries;
From 1000 BC to around 600 BC, the Aryans spread from Sapta
Sindhu region into the Indo-Gangetic plains. They cleared the thick
forest by cutting and burning them. The land was then used for
cultivation and settling;
The rajan was the chief of the tribe. He was assisted by the
commander in-chief of the army, known as the senani, and the
priest or the purohit. The rajan was also advised by two assemblies
of elders known as the sabha and the samiti.;
The rajan received gifts in kind. He also received a share of the
plunder when cattle raids took place. There was no regular tax;

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(5)
(6)
(7)

(8)

(9)

(10)
(11)

(12)
(13)

(14)

(15)

(16)

(17)

The rajan performed sacrifices like the Rajasuya and Ashwamedha


(horse sacrifice) to gain supremacy over other chiefs;
The smallest unit of society was the kula or the family;
The eldest male member of the family, who was known as the
grahapati, headed the kula. His decisions were final. His children
and grandchildren too lived with him as a joint family;.
The people who composed the Vedas called themselves arya or
noble ones and those whom they opposed as dasuys or dasas.
Historians believe that the dasyus were the original inhabitants of
the land;
As the Aryans increased in number and started migrating further
into the Indo-Gangetic plain and the Deccan Plateau, they had to
fight the local inhabitants for the possession of the land. The
defeated people were taken as slaves.;
The Aryan society was classified on the basis of occupation or
profession into four varnas or classes.;
The Brahmins were the priests, the kshatriyas were the rulers and
the warriors, and the vaishyas were the traders, cultivators and
skilled workers. The shudras served the other three groups and did
the menial jobs.;
There is a hymn in the Rig Veda which tells that the classes
mentioned were not hereditary and could be interchanged.;
However, over a period of time, it became difficult for people to
move out of the varna or class they were born into. The system
was no longer based on ones profession.
It had become
hereditary.;
Imagine a pyramid. At the top were the brahmins, the priestly class.
They held high positions because they were necessary for
conducting all rituals. Next in importance were the kshatriyas or the
warriors. By acquiring more lands, they had become powerful. The
vaishyas were next on the pyramid. They had become wealthy and
powerful due to their trading activities. At the bottom of the pyramid
were the shudras.;
The Aryans worshipped the sky, the wind, the rain, fire and other
elements of nature as gods and goddesses. The god of thunder
and war was Indra, the most important of all. Other gods
worshipped included Surya, the Sun god, Varuna, the god of rain,
Prithvi, the goddess of the Earth, and Agni, the god of fire.;
In the course of time, as the Aryans slowly spread across northern
India, they started worshipping new gods like Brahma, Vishnu and
Shiva.
Goddesses like Saraswati and Lakshmi were also
worshipped.;
The Vedas are the main religious books of the Aryans. The Vedas
contain hymns (songs in praise of god) composed in Sanskrit. They
also contain details of rituals to be performed to appease the gods.;

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(18) There are four Vedas (1) the Rig Veda, (2)the Yajur Veda, (3)the
Sama Veda and (4)the Atharva Veda.;
(19) Apart from the Vedas, the other religious books of the Aryans
include the Brahmanas, the Aranyakas, the Upanishads, the
Puranas and the epics the Ramayana and the Mahabharata.
These books tell us about the life of the Aryans their beliefs, the
nature of their society, their political set-up, their dress and food
habits, the occupations they followed, and the nature of their
economy.
9.30

It is thus crystal clear that the four varna system which was
interchangeable emerged into India only after the coming of Aryans
and later it became hereditary as not interchangeable. In such a system,
the Brahmanas occupied the top position.

9.31

Human dignity
The following Sanskrit slokam gives a clear picture of the status of
Brahmanas:
DEIVADEENAM JAGAT SARVAM !
MANTRADEENANTHU DEIVATHAM !
TANMANTHRAM BRAHMANADEENAM!
BRAHMANO MAMADEVATHA !!
Meaning: Gods are subject to mantras, mantras are subject to Brahmanas.
Therefore, Gods are subject to Brahmanas and thus the superiority of Brahmanas is
established. [Source: The Abbe J.A.Dubois, Hindu Manners, Customs and
Ceremonies, Oxford, Third Edition-1906, Page 136.]

In India, the main heartland of Hindus, discriminatory practices among


the Hindus on the basis of varna or caste has been in existence from
time immemorial. And the Vedas, Puranas and Epics like Ramayana
and Mahabharata also affirm the varna or caste system being affixed to
individuals at the time of their birth and this sort of a caste system
created gradation of status of very many people belonging to different
castes, and the status so created never got extinguished right from
cradle to grave. The dignity and respect for the individual in a Hindu
society is not inviolable but always violable from ones birth to death.
This sort of a provision as respects individual dignity and respect must
have to be provided for in the Indian Constitution which alone has to be
considered as a basic structure or feature of the Constitution. To affix
the seal of approval to each and every one of the basic human rights
recognized as fundamental rights as basic structure and feature of the
Constitution, appears to be far from correct, the consequence of which is
the various fundamental rights as adumbrated in Part III of the
Constitution must be amenable to amendments by way of additions,
alterations, deletions, etc, by the Constituent Assembly of the Parliament
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which reflects the will of the people of this country. In this context, it is
pertinent to describe a case study regarding how the caste system is
perpetuated in Indian society despite entering into information technology
age.
Endogamy and perpetuation of Caste system in Indian scenario A Case Study.
Endogamy was considered as a socio-cultural phenomenon since Vedic
period to prevent pollution of blood of higher castes through social intercourse
with other castes. Dharmasastra depits the child born to a brahmin woman
and the lowest sudhra man, as chandala (meaning a sinful human). Even
there are arguments commenting that sati was brought into practice in an
endogamous marriage system to curtail all unforeseen possibilities of getting
a woman belonging to higher caste polluted by other caste men.
A person born as brahmin cannot convert himself even if he wishes to get
rid of such social symbol into a vellalar or chakkiliar community, like
conversion from one religion to another religion. Caste is unalterable in
endogamous system of marriage. The caste hierarchy can be protected only
if such endogamous practices are strictly followed.
It is true that many of the non-brahmin community rationalists, attracted by the
rational thoughts of leaders like Thanthai Periyar, contracted inter-caste
marriages. The Government also legalized such inter-caste marriages
through legislative measures. Many of such marriages though exogamous
were held between two different groups which are equally placed in social
hierarchy.
Some of the inter-caste marriages of higher castes had
interestingly happened with lower caste persons for the financial, political or
such other advantages of the higher caste persons, but not for the rationalistic
process of achieving an egalitarian society. The number of inter-caste
marriages, if surveyed, may be very negligible against the number of
endogamous marriages getting contracted in a given period.
There are arguments that the socially discriminated society as envisaged in
dharmasasthra does no longer exist, as all the people are equally treated in
all public places in urban areas as well as rural areas. Any person can enter
into temples without any caste discrimination; we are travelling in transport
systems without any difference; eating in hotels, restaurant and eat-out
equally, etc. Further, even the persons visualized as Spiritual Gurus, despite
belonging to hierarchy of higher castes and strongly following dharmasastra
are thinking only of universal brotherhood before a god. There are several
such arguments trying to prove that there is no discrimination prevalent in the
present world scenario.
contd .

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[The arguments as above


this Commission feels
are unacceptable.
Hinduism cannot exist by itself without the existence of caste. Hinduism
divorced of caste is no Hinduism. Hinduism will die. Hindus may not be
prepared to accept such a situation. Caste will, therefore, exist in India for
ever so long as Hinduism exists.]
But, in real life, even today, we have not left the Information Technology (IT)
space free from caste discrimination. There are matrimonial information
centers in the web meant only for the information of Brahmins, arunthathiyars,
adi-dravidars, vellalars, etc., separately. There are marriage facilitation
business centers run for profit by persons belonging to higher castes among
Hindus from same address in two different names, one for Brahmins and one
for non-brahmins ; in similar manner, the e-business sites are also different for
Brahmins and non-brahmins. Who knows ! In future, the social
discrimination will take whatever form and cause the inventions of new
technology to perform in its favour to perpetuate the social inequality.
Article 17 of our Constitution abolishes untouchability and forbids its practice
in any form, but not caste. Ours is a caste constitution, which recognizes
caste. Affirmative action under the Constitution is permitted. If at all the
policy of reservation should go, the Constitution recognizing caste for the
purpose of affirmative action instead of abolishing untouchability, should
abolish endogamy and forbid practice of caste in any form. Such a situation is
unlikely within the next few generations to follow. Until and unless the human
dignity and respect is valued and caste is abolished from the Hindu social
system, it is mandatory that the affirmative action should continue to secure
socially suppressed and downtrodden sections from the clutches of
discriminating higher sections of the society. So called advocates or Social
Economists should facilitate distribution of public goods to one and all without
inequality; and also every citizen in the society should have equal stake in the
governance and growth of the nation.
Ends.

9.32

The dignity of individuals is referred to in the Preamble portion of the


Constitution as Fraternity assuring the dignity of the individual and the
unity and integrity of the Nation. The word integrity, it appears, had
been inserted by the Constitution (Forty Second Amendment) Act, 1976,
w.e.f. 3.1.1977. The word fraternity is an instrument for assuring the
dignity of the individual and the unity and integrity of the Nation. Of
course, the dignity of the individual in the said portion of the Preamble, it
has to be pointed out here that the dignity of individual had not been
specifically referred to as a basic inalienable human right in the
fundamental rights chapter as has been specifically referred to and
stated in clause (1) of Article 1 of the German Constitution. If it had been
included as a fundamental right in the Indian Constitution, pretty certain it
is, the pernicious caste system arising from whatever source and having
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been practiced for thousands of years which created divisions of the


society with graded status, social ostracisation and other deprivations
resulting to people in the degraded status could have been given a
watery grave without any difficulty whatever. The Supreme Court simply
rendered a lip service to the human dignity as being included in the
enforcement of the various human rights as incorporated in the
fundamental rights chapter.
9.33

The Supreme Court, as already referred to, in Kesavananda Bharati, laid


down a proposition that though fundamental rights constituted no
limitation on the amending power, there were other implied limitations,
viz., its power to amend could not be used to alter the basic features of
the Constitution or make a new Constitution.

9.34

The late lamented Prime Minister Smt.Indira Gandhi, in a rather a bid to


contain and control the aforesaid proposition, inserted clauses (4) and (5)
in Article 368 of the Constitution by the Constitution (Forty second
Amendment) Act, 1976 specifically providing for that no amendment
including the provisions of Part II, Part III shall be called in question in
any court on any ground. Such an amendment has been superseded by
a Constitution Bench decision in Minerva Mills case supra. This sort of
supersession by the Supreme Court in a democratic polity like India
cannot at all be allowed to remain in courts of law. The reason is not far
to seek. The Constitution of India is a mother document adumbrating the
policies to be pursued for the governance of the country. The
Constitution has to be originally framed by the Constituent Assembly
consisting of elected representatives of the Parliament. The power which
has been given to the Constituent Assembly of the Parliament to create a
Constitution in the sense of enacting certain provisions must have the
necessary and requisite power to amend or alter the provisions they
have enacted suiting the needs of the time and the situation warranting
such a course to be adopted. Once the Constitution is framed, the power
of judicial review relatable to Constitutional amendments, if allowed to
exist, it is nothing but anathema to the democratic polity in the sense of
the will of the people not getting reflected giving predominance to the will
of the individuals sitting in the corridors of power in the ivory tower of the
superior courts of jurisdiction like the High Courts and the Supreme
Court. Of course, any enactment enacted either by the Parliament or by
the Legislature of the individual States cannot run counter to the objects
and provisions of the Constitution enacted for the country. If such a
situation is created, there is nothing wrong in the granting of power of
judicial review to the superior courts of jurisdiction to set at naught the
enactment which is against the mother document viz., the Constitution, in
which case, the will of the people cannot at all be considered to be as
having been thrown to winds.

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9.35

As such, the need of the hour is to restore the Forty-second amendment


providing for inclusion of Clauses (4) and (5) in Art.368 of the
Constitution for the restoration of democracy so as to prevent the
autocratic exercise of power by the Judges of the Courts of superior
jurisdiction assuming to themselves the power of super-Legislatures
and super-Parliament.

9.36

As such, the basic structure or basic feature theory as evolved by the


Supreme Court requires a re-look and reconsideration by a larger Bench
of the Supreme Court in the interest of the public at large.

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10.

NEGLECT OF BACKWARD CLASSES IN APPOINTMENTS


TO HIGHER JUDICIARY

10.1

A glimpse or glance of the provisions of the Constitution relating to the


appointment of Judge of a High Court may now be made. Clause (1) of
Article 217 of the Constitution is relatable to the appointment of High
Court Judge. The interpretation of the said provision came up for
consideration before the Supreme Court in the seven Judge Bench
decision, S.P.Gupta Vs. Union of India [AIR 1982 SC 149] and in the
nine Judge Bench decision Supreme Court Advocate on recordAssociation Vs. Union of India AIR 1994 SC 268.

10.2

The decision given by the Supreme Court in later decision almost


amounts to rewriting of the Constitution. The effect produced by such a
view is the establishment of judicial supremacy in the matter of selection
and appointment of judges to the Superior Courts of Jurisdiction High
Courts and Supreme Court.
This apart, the Supreme Court in
Kesavananda Bharathi Vs. State of Kerala AIR 1973 SC 1461 under the
facade of interpreting the provisions of Article 368 propounded the
concept of the basic structure of the Constitution without defining what
basic structure means. Further the Supreme Court in Indira Gandhi
Smt. Vs. Rajnarayan AIR 1975 SC 2299 observed that the claim of any
particular feature of the Constitution to be a basic feature would be
determined by the Court in each case that comes before it. In the result,
it is impossible for those responsible for amending the Constitution to
guess what surprise lies in store for them before the Supreme Court.

10.3

Top of all, the Supreme Court struck down many a social welfare
legislations based on the directive principles of State Policy as
engrafted in Part IV of the Constitution and enacted by the
Government in the early stages after the commencement of the
Constitution on the ground that those legislations were opposed to the
fundamental rights as enshrined in Part III of the Constitution, without
reconciling in a harmonious way by construing the directive principles of
State Policy as reasonable restrictions imposed in the exercise of the
fundamental rights. Even the late lamented Prime Minister Nehru
indirectly criticized the Judges by stating that a good Constitution, like
the Constitution of India may be proved to be a bad Constitution and vice
versa by the implementing authorities. The implementing authorities
cannot be anyone other than the Judges of the High Courts and
Supreme Court. Even the late lamented Prime Minister Smt.Indira
Gandhi criticized the interpretative analogy adopted by the Supreme
Court in giving primacy to Part III in case of conflict between Part III and
Part IV of the Constitution and she went to the extent of amending the
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Constitution by the Constitution (42 Amendment) Act, 1976 by giving


primacy to Part IV of the Constitution in case of conflict arising between
Part III and Part IV. The amendment so brought in was subsequently
abrogated by the Janata Government by 44th amendment of the
Constitution.
10.4

What is further worse is that the Supreme Court went to the extent of
bisecting and dissecting fundamental rights adumbrated in Article 15 and
Article 16 and stated that Clause (4) of Article 15 and Clause (4) of
Article 16 are only enabling provisions, but not fundamental rights,
consequently not having justiciability while Clause (1) of Article 15 and
Clause (2) of Article 16 are alone fundamental rights, having
enforceability. It is so obvious that such an interpretation is made
ingenuously by the use of glib and semantic language with a view to
deprive the benefit of reservations reaching the downtrodden sections of
the society. If the 42nd amendment of the Constitution giving primacy to
Part IV of the Constitution remained intact without getting repealed, cock
sure it is, the social welfare measures taken by way of enactment of
legislations like the Tamil Nadu Act No. 45 of 1994 conferring the benefit
of reservation to the extent of 69% in favour of backward classes,
Scheduled Castes and Scheduled Tribes need not at all face the
challenge before the Supreme Court as to its constitutional validity. If
the Tamil Nadu Act 45 of 1994 is struck down as null and void, about 3
crore of people declared as backward and Most Backward Class in this
State and about 20% of SC and ST of the total population of the State
amounting to 6 crore who are limping to take a step forward in their
social, educational and economic advancement will be greatly
jeopardized by getting affected and pushed back to occupy the position
status-quo ante.

10.5

One must ponder over the question as to why the backward classes of
citizens, the SC and ST, constituting nearly 80% of the population of
country are unable to improve their status socially, educationally and
economically to the expected level even after the lapse of 55 years from
the date of commencement of the Constitution, containing very many
benevolent provisions such as Clause (4) of Article 15, Clause (4) of
Article 16, Clause (1) of Article 38, Clause (2) of Article 38, Clause (b) of
Article 39, Clause (c) of Article 39, Article 46, Article 338, Article 339,
Article 340, Article 341 and Article 342, for the welfare of the backward
Classes, SC and ST. The reason cannot be anyone other than the
power in the judicial corridors, getting snatched away by the people,
belonging to higher castes in the caste hierarchy to the deliberate
exclusion of others and interpreting the provisions of the Constitution to
suit the sectional interest of a small section of the society which
numerically did not exceed 10% of the total population of the country.
The state of the health of the nation was viewed through their eyes, and
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the improvement in its health was effected according to their


prescription. It is nave to believe that the exercise of judicial power was
carried on impartially, that the sectional interests were subordinated to
the interest of the country and that justice was done to the backward
classes of citizens, SC and ST. This state of affairs is being continued
without a stop.
10.6

Worthwhile it is to mention here that more than 90% of the Judges in the
High Courts and Supreme Court are people belonging to higher castes
in the hierarchy of castes. How did this happen? The answer to such a
question reveals interesting details. Of course it is vociferously
proclaimed by standing at the pinnacle of the hill that selection and
appointment of judges are done by the collegium of judges by adopting
the loftiest principle of merit and merit alone in the best interest of the
administration of the justice system tending to deliver equal justice to the
people of the country uniformly and without any sort of discrimination,
without the interference from any quarter whatever. Such a despotic
power not conferred upon by the Constitution but seized of by the
Judiciary under the faade of interpretation of the Constitution in the
sense of reenacting the provisions of the Constitution relating to the
appointment of Judges which is admittedly beyond the pale of purview
interpretation if allowed to continue, pretty certain it is that the
country is to face disastrous consequences of affecting the larger
interest of the major bulk of the population of the country.

10.7

The interesting details are culled out from the book under the caption
Supreme Court of India, An instrument of Socio-Legal Advancement by
one Subhash Chandra Gupta. The passage occurring under the
heading Caste hegemony at pages 79 and 80 is relevant and it reads
as under:
What really triggered of the policy of transfers was the situation in some
southern states. There was a period of time when in Andhra Pradesh and
in Karnataka, most judges in the High Courts, belonged only to a particular
caste. It is common knowledge that in Andhra Pradesh, for a long time,
only a Reddy could become the Chief Justice, and in the State of Karnataka
only a Lingayat could become the Chief Justice.
Though a shrewd process of manipulation, a person belonging to these
chosen caste would be appointed to the post of judge of the High Court at
the very young age of 40 to 42, much younger than the normal age at which
a person is appointed a judge of the High Court, to ensure that with the long
tenure of service he would be senior most judge and thus become the Chief
Justice. Persons belonging to other castes or communities would be
appointed at the age of 55 or 56, thereby ensuring that none of them would
become the Chief Justice. The younger judge would outlive his older
brothers on the Bench. This shrewd manipulation was masterminded in
Andhra Pradesh by Jagmohan Reddy, who later become a judge of the

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Supreme Court. It was in order to break this pernicious practice, that for
the first time transfers of judges from other States were effected.
Justice Das Gupta was transferred to Karnataka. So strongly entrenched
was the caste domination in some of these states that in relation to justice
Chandra Sekhar of the Karnataka High Court, he even went to the extent of
withdrawing the powers of the District Court to appoint peons and reposed
this power in the High Court, thus ensuring that even peons were appointed
from a particular caste alone. In varying degrees, the same pernicious
practice existed in other States such as Uttar Pradesh and Rajasthan. But
for the policy of transfers, it is now an established fact that in Andhra
Pradesh only a Reddy would have been Chief Justice upto the year 1999
and in Karnataka only a Lingayat would have been Chief Justice upto the
year 2003. It is in this context, that the policy of transfers of Chief Justices,
has to be viewed.

10.8

From the extract as above, it is discernible that caste and caste alone
was considered as merit in the matter of selection and appointment of
judges. What is further worse is that, from the Karnataka example
relating to the appointment of peons, the Chief Justice Chandra Sekhar
went to the extent of withdrawing the powers of the District Courts thus
ensuring, that even peons were appointed from a particular caste alone.
Thus it is crystal clear that caste of the Chief Justice of the High Court is
the dominating factor not only in the matter of selection and appointment
of Judges but also in the matter of appointment of even peons a sham
disgrace to the Judiciary. Another revealing factor is that by a shrewd
manipulation a person belonging to these chosen caste would be
appointed to the post of judge of the High Court at the very young age of
40 to 42, much younger than the normal age at which a person is
appointed a judge of the High Court, to ensure that with the long tenure
of service he would be senior most judge and thus become the Chief
Justice. Persons belonging to other castes or communities would be
appointed at the age of 55 or 56, thereby ensuring that none of them
would become the Chief Justice. The younger judge would outlive his
older brothers on the Bench. By adopting this sort of a shrewd
manipulation meticulous care was taken to see that the Judges
belonging to SC, ST and BC did not reach the senior most position to
become the Chief Justice so as to continue the perpetuation of power
inhering in chosen higher castes in judiciary.

10.9

It is also widely said that a person from a chosen higher caste had been
appointed as a judge of a High Court at such an young age meaning
thereby, younger in age to all the existing Judges in various High Courts
to see that he becomes the Chief Justice of the Supreme Court and he
will be there as a Chief for a pretty long period. Such an appointment as
made as widely said must be brought to light by utilizing the relevant
provisions of the Right to Information Act, 2005 (Act 22/2005). The caste
wise particulars of the Judges of the High Courts and Supreme Court can
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also be brought to light in such a manner. The particulars obtained if


given wide publicity would expose in a revealing manner the credibility
of the judiciary in the matter of appointment of judges of High Courts and
Supreme Court.
10.10

Then what is the salvation to save the people of India from the clutches
of the Judges of High Courts and Supreme Court in such a situation as
brought about above? What is the solution? What is the remedial
measure to be undertaken to solve such problem? Before answering the
questions as posed, one can try to find out as to whether such a parallel
problem arose in any of the major countries of the world. The practice
prevailing in England and United States in the matter of appointments of
judges to higher judiciary was probed into.

10.11

Parliamentary system of governance is in vogue in England whereas the


Presidential system of governance is adopted in United States.
Supremacy is given to the Parliament in England in the governance of
the country. The consequence of which is, there is no judicial review and
the judiciary has to look to the parliament as to the meaning to be
ascribed to any word in the legislation and therefore the power of judicial
review is not at all given to the judiciary to strike down a statute or
legislation.
The Judiciary has to see through the eyes of the
parliamentarians to interpret legislation. Such being the case the
question that arises for consideration is as to whether the Parliament can
enact any legislation affecting in a larger way the interest of the people of
the country. Of course, it has power to do so; but it will not do so, even
though such legislation cannot at all fall within the purview of judicial
review by courts. The reason is not far to seek. The public opinion
against the Government in power will get materialized with all hurry and
haste just like the waves getting developed and spread to the entirety of
the pond, if a small stone is thrown into it, the consequence of which is
the Government will be thrown out of power in no minute. The
democracy works very well and the people reign supreme. Judicial
supremacy is not at all there and the people getting affected by judicial
verdicts cannot even be imagined. Such being the case, the
appointments effected to the higher judiciary are not likely to cause harm
or jeopardize the interest of the society at large. The system of
appointing party advocates to the higher judiciary by the party in power
(which is in practice) is of no consequence in as much as the judges so
appointed can see through the eyes of the parliamentarians and speak
through the mouth of the parliamentarians.

10.12

In United States, the Judges to the higher judiciary are not selected and
appointed as in India, but assume office after their election. The persons
elected as Judges by the senators are normally politicians of the party in
power, practicing as a lawyer. It looks odd to hear; but it is the real state
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of affairs therein. One cannot assume that all politicians are bad and all
Judges are paragons of virtue. Black sheep are everywhere. It has to
be identified. That is the problem. In the process of election of Judges
from among politician lawyers, there are very many advantages. A
politician-lawyer is an open book. A politician-lawyer who is found to be
honest even during his career as a lawyer-politician, he is bound to be
honest as a Judge and there cannot be any sort of doubt that during his
career as a Judge, he will swerve away from the path of virtue. This
apart he undoubtedly possesses the vital and intimate knowledge gained
through their rich practical experience by moving with the vast populace
of the country besides actually seeing personally the living conditions of
the people belonging to various segments of society. Such being the
case, they can very well understand the response, reaction, behavioral
pattern, aspirations, hopes etc. of the people. Equipped with such an
intimate knowledge of the people of the country they can, with ease and
grace and without any difficulty whatever give a legal fitment to a case
coming before them for decision.
10.13

The moment they assume office after their election, they cut off
completely any link they had with any sort of people during their career
as a lawyer-politician and avoid mingling with the public throughout their
tenure of their office. The position in India is different. The person
before his selection and appointment is not known to the outside world.
His philosophy and ideology is not known. There is no transparency in
the selection and appointments. He is like a cat on the wall. He will jump
to which side, nobody knows. There are pitfalls which have been
elaborately dealt with earlier. The system of election of Judges by the
Senators with so much of transparency and openness worked
wonders in United States.

10.14

What is required for a Judge is human knowledge and experience of life


situations of various segments of society. Knowledge of law though
necessary can if at all play a secondary place. To illustrate this, the
election and appointment of Earl Warren as the Chief Justice of United
States Supreme Court in 1950s may be referred to. He practiced Law
only for a few years. He was a great humanist. Humanism pervaded in
all his activities. Such being the case, no wonder it was, he was elected
as Governor in his early life and continued to get elected as a Governor
for four terms. While he was in such a status and position, he was
elected by the senators as the Chief Justice of United States and
assumed office. It was astonishing to everyone. Legal circles were
eagerly awaiting to see as to how he was going to function as the Chief
Justice of the Supreme Court of United States without having adequate
knowledge and experience in the field of law as a lawyer. Contrary to the
expectation of all, he proved to be the most successful Chief Justice and
rendered many epoch making judgements. One of his decision was
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Brown Vs. Board of education (347 US 483) overruling the separate but
equal doctrine evolved in Plessy V. Ferguson [163 US 537 (1896)] which
outlawed the discrimination against blacks in the matter of admission of
children of blacks in educational institutions.
10.15

One can very well understand that the procedure, as now available in
India, in the matter of appointment of Judges to High Courts and
Supreme Court, needs drastic change by suitably amending the relevant
provisions of the Constitution. If the Judges, as usual, are to declare
such amendment as opposed to the basic structure of the Constitution,
then the Government has to take a decision to amend such provisions of
the Constitution by a referendum. If such measures are not resorted to,
one can assert in no uncertain terms that the revolution which is in the
offing is to erupt unexpectedly.

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11.

POLITICAL POWER DYNAMICS OF INDIA


A CASE STUDY

11.1

Article 245 of the Constitution of India deals with the extent of laws made
by Parliament and by the Legislatures of States. Clause (1) of this Article
prescribes,
Subject to the provisions of this Constitution, Parliament may make laws for
the whole or any part of the territory of India, and the Legislature of a State
may make laws for the whole or any part of the State.

The legislative power granted to the Parliament as well as the


Legislatures of States is, however, subject to the provisions of the
Constitution. The legislative power, as such, on either of these
institutions is circumscribed and very well limited by the provisions of the
Constitution.
11.2

Schedule 7 of the Constitution contains three Lists viz.,


(1)
(2)
(3)

List I Union List;


List II State List; and
List III Concurrent List

List I Union List contains 97 items/subjects; List II State List contains


66 items/ subjects and List III Concurrent List contains 47 items/
subjects. The various Lists as above are the fields of legislation; Lists I
and II are respectively the fields of legislation for the Union and the
States while List III is the concurrent fields of legislation wherein both the
Union and the States inhere the power to legislate in respect of those
fields.
11.3

There are certain other provisions in the Constitution in and by which


legislative power is specifically vested in the Parliament. Articles
2(Admission or establishment of new States), 3(Formation of new States
and alteration of areas, boundaries or names of existing States),
11(Parliament to regulate the right of citizenship by law), 246(Subject
matter of laws made by Parliament and by the Legislature of States),
262(Adjudication of disputes relating to waters of inter-State rivers or
river valleys), 343(Official Language of the Union) and 348 (Language to
be used in the Supreme Court and in the High Courts and for Acts, Bills,
etc.).

11.4

Article 246 deals with distribution of legislative powers as between the


Union and the State Legislatures with reference to the different Lists in
the 7th Schedule. The gist of the Article, in short, is that the Union
Parliament has full and exclusive power to legislate in respect of matters
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in List I and has also powers to legislate with respect to matters in List III.
The State Legislature, on the other hand, has exclusive power to
legislate with respect to matters in List II, minus falling in Lists I and III
and has concurrent power with respect to matters included in List III.
The power to legislate as has been conferred by this Article upon the
Parliament as well as the State Legislatures is, however, subject to the
provisions of the Constitution as has been prescribed by Article 245.
Article 248 deals with residuary power of the Legislation inhering in
favour of Parliament. Parliament has exclusive power to make any law in
respect of any matter not enumerated in the Concurrent List or State List.
Such power includes the power of making any law imposing a tax not
mentioned in either of those Lists.
11.5

Article 249 deals with the power of Parliament to legislate with respect to
a matter in the national interest. This Article empowers the Union
Parliament to take up for legislation by itself any matter enumerated in
List II. Despite the fact that clause (3) of Article 246 confers the requisite
power upon the State Legislatures to legislate in respect of matters
enumerated in List II, the procedure contemplated therein has to be
followed whenever the Council of States resolves, by a two-thirds
majority, that such legislation is necessary or expedient in the national
interest.

11.6

Article 250 provides for a situation wherein power inheres in favour of


Parliament to legislate in respect of any matter in the State List if a
proclamation of emergency is in operation.

11.7.

Article 251 provides that if there is any inconsistency between a law


made by the Parliament and the laws made by the State Legislatures
under Article 249 (in national interest) and Article 250 (proclamation of
emergency in operation), then the law as made by Parliament shall
prevail and the law made by the Legislatures of States shall, to the extent
of repugnancy, be inoperative so long as the law made by Parliament
continues to have effect.

11.8.

Article 254 deals with a situation where inconsistency comes to prevail


between a law made by Parliament and a law made by the State in
respect of matters enumerated in the Concurrent List. Clause (1) says
that if the State law relating to a concurrent subject is repugnant to a
Union law relating to that subject, then, the Union law whether prior or
later in time shall prevail and the State law shall, to the extent of such
repugnancy, be void. A perusal of Clause (2) thereunder does not
restrict or prohibit the power of the State Legislature in respect of matters
in Concurrent List concerning which the Parliament has made legislation
or there is an existing legislation by Parliament contrary to such
legislation. The legislation so made by the State will prevail if the same
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has been reserved for consideration of the President and has received
his assent. However, under the proviso thereunder, the Parliament
cannot at all be prevented from enacting at any time any law in respect of
the same matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.
11.9.

Entry 11 of List II State List relatable to Education was omitted by the


Constitution (Forty second Amendment) Act, 1976 w.e.f. 3/1/1977. Prior
to the amendment, subject to Entries 63 to 66 of List I and Entry 25 of
List III, Education, including Universities was a State subject under the
omitted Entry 11 of List II. This, it is said, led to much controversy as to
the scope of State jurisdiction vis--vis the Union power under Entries 63
to 66 of List I. This controversy was sought to be obviated by
transferring Education entirely to List III, Entry 25 excluding subjects
included in Entries 63 to 66 in List I. After the amendment, Entry 25 of
List III reads thus:25. Education, including technical education, medical education and
universities, subject to the provisions of entries 63, 64, 65 and 66 of List I;
vocational and technical training of labour.

As a result of this amendment, no part of the subject Education, now


belongs to the exclusive State List. Barring the topics covered by Entries
63, 64, 65 of List I, the residue of education has become concurrent.
Hence, the problems arising out of Union legislation encroaching upon
the State sphere has been obviated.
11.10. From what has been stated above, on an analysis of various provisions
of the Constitution regarding distribution of powers between the Union
Government and the States, though it has been very well said that the
Indian Constitution assumes the role or character of Federal as well as
Unitary Constitution, a careful perusal of various provisions that have
been taken up for discussion would point out in unmistakable terms that
the Union Government can encroach upon the powers of the State in
enacting legislations even in respect of matters in the fields of legislative
activities of the State as contained in List II and List III of the Seventh
Schedule of the Constitution. Of course true it is, that in an emergency
situation, the Union Government can encroach upon the powers of the
State in national interest and public interest in order to protect and
safeguard the freedom of the nation from internal as well as external
aggression, assuming the role to be performed in a unitary Constitution.
But even in normal peaceful situation, it cannot be said that the Union
Government cannot at all encroach upon the powers of the State
Government by enacting a legislation in the field of exclusive legislative
activities of the State under List II as well as List III wherein a concurrent
legislative activity is contemplated both by the Union as well as the State
Governments and take away the entirety of powers of the State
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Government under the faade of national interest reducing the States to


the level of mere municipalities or village panchayats.
11.11

A glaring example is the proposed Bill in the shape of National


Commission for Higher Education and Research Bill, 2010. The main
aim of the said proposed Bill is to establish a National Commission for
Higher Education and Research for twin purposes:(1) to provide for the determination, co-ordination, maintenance of
standards in, and promotion of, higher education and research,
including university education, technical and professional education
other than agricultural and medical education; and
(2)

to promote the autonomy of higher educational institutions for the


free pursuit of knowledge and innovation, and for facilitating access,
inclusion and opportunities to all, and providing for comprehensive
and holistic growth of higher education and research in a
competitive global environment through reforms and renovation and
to provide for an advisory mechanism of eminent peers in
academia.

11.12

Section 2(k) of the said proposed enactment defines Collegium as the


Collegium established under section 17 of this Act.

11.13

Section 2(t) defines higher education as such education, imparted by


means of conducting regular classes or through distance education
systems, beyond twelve years of schooling leading to the award of a
degree or diploma; but does not include medical education or agricultural
education in institutions other than universities. As per this definition,
medical education and agricultural education imparted in universities are
included in higher education.

11.14

Section 2(u) defines higher educational institution as an institution of


learning including a university, an institution deemed to be university, a
college, an institute, an institution of national importance declared as
such by an Act of Parliament, or a constituent unit of such institution,
which is imparting by means of conducting regular classes or through
distance education systems, higher education or research therein.

11.15

Section 50 relates to overriding effect. It prescribes that the provisions of


the Act shall have overriding effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act.

11.16

It is thus crystal clear that education beyond twelve years of schooling


leading to an award of a degree or diploma excluding medical and
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agricultural education in institutions other than universities means higher


education within the four corners of this proposed legislation.
11.17

Section 4 contemplates the establishment of a National Commission for


Higher Education and Research. The Commission shall be a body
corporate. It has power to acquire, hold and dispose of properties, both
moveable and immovable and to contract, and shall, by the said name,
sue or be sued.

11.18

The Commission, according to Section 5 shall consist of a Chairperson


and six other Members. The office of the Chairperson and three other
Members shall be whole time and salaried. The Chairperson and the
other whole time Members shall be scholars being persons of eminence
and standing in the field of academics and research possessing
leadership abilities, proven capacity for institution building and
governance of institutions of higher learning and research.

11.19

The Members other than the whole time Members shall be persons of
eminence with high academic credentials with proven contribution to
economic and social development and experience of engagement with
institutions of higher learning and research.

11.20

The Chairperson and other Members shall be appointed by the President


on the recommendation of a Selection Committee consisting of:(i)
(ii)
(iii)
(iv)
(v)

the Prime Minister, who shall be the Chairperson of the Committee;


the Speaker of Lok Sabha; and
the Leader of Opposition in Lok Sabha; and
the Minister in charge of Higher Education in the Government of
India;
the Minister in charge of Medical Education in the Government of
India.

11.21

The Selection Committee shall make its recommendation from a panel of


three names, submitted by the Collegium under clause (c) of sub-section
(1) of section 19, for each vacancy.

11.22

Section 17 prescribes that there shall be established a Collegium


consisting of core Fellows and co-opted Fellows, being persons of
eminence and integrity in academia in higher education and research.

11.23

No person shall be eligible for appointment as a Fellow of the Collegium


unless he
(a)

is a citizen or an Overseas citizen of India; and

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(b)

11.24

has made substantial contribution to the advancement of


knowledge demonstrated through publications which are
internationally acknowledged and peer-reviewed.

A core Fellow of the Collegium shall be a person


(a)
(b)
(c)
(d)

who is, or has been, a National Research Professor; or


who is a recipient of the Nobel Prize or Field Medal; or
who is a recipient of the Jnanpith award; or
who is a Member of an Academy of international standing.

11.25

Section 19(1)(c) prescribes that the Collegium shall, when called upon
to do so and in respect of appointments of Members and Chairperson of
the Commission, recommend a panel of three persons for each post to
the Selection Committee constituted under sub-section (4) of section 5.

11.26

Thus it is abundantly clear that even the Selection Committee constituted


under sub-section (5) of section 5 consisting of the highest dignitaries
like the Prime Minister etc., shall have no power to recommend for
appointment either as Member or as Chairperson to the Commission any
person who is finding a place in the panel of names recommended by the
Collegium comprising of Core Fellows and Co-opted Fellows as defined
under Sec.19. The Core Fellows and Co-opted Fellows as contemplated
by the said Section cannot at all, in normal circumstances, be expected
to be coming from people other than the hierarchy of higher castes in the
situation and circumstances now prevailing in India. If the selection falls
in the hands of such a Collegium of Members, it is obvious as obvious
could be, that the selected persons cannot be expected to originate from
any source other than their own groups going by the adage, Birds of
same feather flock together as and when an opportunity forth comes for
the creation of such a situation.

11.27

Section 20 contemplates preparation of National Registry of persons


eligible and qualified for appointment as Vice Chancellor or head of
institution of national importance. The Collegium shall recommend, from
time to time and in such manner as may be prescribed in concurrence
with the Commission, for inclusion in the National Registry, names of
persons eligible and qualified for appointment as Vice Chancellor of a
university or the head of an institution of national importance. The
Central Government and the State Governments may also refer the
names of suitable persons to the Commission for inclusion in the
National Registry of persons eligible and qualified for appointment as
Vice Chancellor or head of institution of national importance. The mere
reference by the Central Government or State Governments for inclusion
of eligible persons for appointment as Vice Chancellor or head of
institution is not by itself sufficient for inclusion of their names in the
National Registry of persons eligible and qualified for appointment as
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Vice Chancellor or head of institution of national importance. The mere


reference by the Central Government and the State Governments to the
Commission for inclusion of eligible persons for consideration as Vice
Chancellors of Universities is not by itself sufficient for inclusion of their
names in the Registry of Persons eligible and qualified for appointment
as Vice Chancellors and Head of Institutions of national importance.
What is further required is, the Collegium may assess the suitability and
competence of such persons for such inclusion in the Registry so
maintained. Thus, the Collegium is all in all powerful in the matter of
selection and appointment of Vice Chancellors and Head of Institutions
of national importance. There is thus no control over the Collegium by
the Government in the matter of appointment of Vice Chancellors and
Head of Institutions of national importance. Taking into consideration the
overriding effect of the Act as contemplated under Section 50 and the
power ingrained in favour of the Collegium, there is little or no scope at
all for any other class of citizens other than the class of citizens
belonging to hierarchy of higher castes to be appointed as Vice
Chancellors and Head of Institutions of national importance. To say that
the fabric of the National Commission for Higher Education and
Research Bill 2010 has been woven into by the threads of various
provisions contained therein by a shrewd process of manipulation, will
not only usurp the powers of the various State Governments in the
matter of higher education, but also bury the social justice fathom deep
by annihilating the reservation provisions as contained in the legislative
enactments of the various States framed under Articles 15(4) and 16(4)
of the Constitution.
11.28

This enactment contains a Repeal and Savings provision in the shape of


section 56 in and by which the University Grants Commission Act, 1956
[3 of 1956], the All India Council for Technical Education Act, 1987 [Act
52 of 1987], the National Council for Teacher Education Act, 1993 [73 of
1993] are repealed with effect from such date, not later than one year
from the date of coming into force of this Act, as the Central Government
may, in consultation with the Commission, notify.

11.29

These things apart, various enormous powers have been ingrained in


favour of the Commission such as grant of authorization for the
commencement of first academic operations as well as revocation of
authorization. Therefore, the Collegium constituted under the Act carves
out a separate kingdom in the field of education subject to the control of
National Education Tribunal to which an appeal is provided under section
38 in favour of the aggrieved persons either for the grant of or refusal or
revocation of authorization under the Act. In a democratic polity, the
three pillars viz., judiciary, executive and the legislative are expected to
perform or discharge their respective functions. The governance or
administration of various institutions established normally comes under
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the executive. Establishing or creating a Commission like the National


Commission for Higher Education and Research and leaving the entire
subject of higher education in all perspectives to such an institution, is
nothing but shirking the responsibility of administration and execution of
such institutions in a democratic polity, thereby making a mockery of
governance of institutions established by the Government by leaving it at
the hands of a few individuals just like a private entrepreneurial
enterprise with hundred per cent funds of the Government, who can ride
on the horse of higher educational institutions without any control from
any quarter whatever inclusive of the Government, of course, subject to
the provisions contained in the Act which confers untrammeled powers to
the members of the Collegium which cannot be curtailed or restricted by
the provisions contained in any other law State or Central say for
example, reservation Laws in existence by the inclusion of an
overriding provision in the Act in the shape of Section 50 which in the
process of sands of passage of time is likely to bury social justice fathom
deep by denying admission in higher educational institutions, thereby
creating a facile situation or atmosphere, not making it possible for the
socially downtrodden sections of the society getting employed in the
services under the State and making the doors open for the hierarchy of
higher castes people to permeate and pervade in the entire atmosphere
of employment in the services of the State.
11.30

The Indian federation as compared to American Federation may now fall


in the arena of comparison and contrast in order to understand as to how
the provisions of the Indian Constitution reduce the States in the country
to the level of Municipalities or Village Panchayats.
The points of difference between the American Federation and the Indian
Federation are mainly two. In the U.S.A. this Dual Polity is followed by a
dual citizenship. In the U.S.A. there is a citizenship of the U.S.A. But there
is also a citizenship of the State. No doubt the rigours of this double
citizenship are much assuaged by the Fourteenth amendment to the
Constitution of United States, which prohibits the States from taking away
the rights, privileges and immunities of the citizens of the United States. At
the same time, as pointed out by Mr.William Anderson, in certain political
matters, including the right to vote and to hold public office, the States may
and do discriminate in favour of their own citizens. This favouritism goes
even farther in many cases. Thus, to obtain employment in the service of a
State or local Government one is in most places required to be a local
resident or citizen. Similarly, in the licensing of persons for the practice of
such public professions as law and medicine, residence in or citizenship of
the State is frequently required; and in business where public regulations
must necessarily be strict, as the sale of liquor and of stocks and bonds,
similar requirements have been upheld.
Each State has also certain rights in its own domain that it holds for the
special advantage of its own citizens. Thus, the wild game and fishing in a

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sense belong to the State. It is customary for the State to charge higher
hunting and fishing license fees from non-residents than from its own
citizens. The States also charge from non-residents higher tuition fees in
state colleges and universities, and permit only residents to be admitted to
their hospitals and asylums except in emergencies.
In short, there are a number of rights that a State can grant to its own
citizens or residents that it may and does legally deny to non-residents, or
grant to non-residents only on more difficult terms than those imposed on
residents. These advantages, given to the citizen in his own State,
constitute the special rights of State citizenship. Taken all together, they
amount to a considerable difference in rights between citizens and noncitizens of the States. . . . . .
[Ambedkar & The Making Of The Indian Constitution A Tribute to
Babasaheb B.R.Ambedkar :: H.V.Hande (Macmillan Publishers India Ltd
pp29-30]

11.31

The U.S. also is a democratic republic, besides being a secular State.


The form of government established therein is a Presidential form of
democratic set up wherein the President is directly elected and is very
powerful in matters relating to administration of the country. Even in a
democratic country like the U.S., the power of the States is not at all
snatched away by the Federal Government. The rights of the residents
or citizens of the State either in matters relating to education or relatable
to jobs in the services of the State are very well protected, in the sense of
granting better rights relating thereto within the State than that of the
rights given to citizens of the Federation.

11.32

The policy of the US is laissez faire policy. The standard of life of the
citizens of the U.S. is of a very high order. People without jobs are living
above the poverty line and their number is negligible or more or less NIL.
Therefore the Constitution framed therein is right-based one. There is a
few or NIL restrictions in respect of fundamental rights inhering in favour
of the citizens and as such the constitutional provisions create a
conducive atmosphere for the establishment of a capitalistic society.

11.33

But the Indian Constitution is a goal-oriented Constitution. It is not


leaning in either of the extremes establishment of a capitalistic society
or of a communist order. To enable it to establish a society in between
these two extremes, i.e., socialistic society with egalitarian aims, the
reasons are manifold. India is the one and only country at the global
level wherein pernicious caste system has been in vogue for time
immemorial, apart from the practice of Untouchability with regard to
certain sections of the society.
These things apart, wealth is
concentrated in a few hands of the hierarchy of higher castes and a
majority of people are below the poverty line. Most of the people living
below the poverty line are persons suffering from caste stigma of
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belonging to lower gradation of castes in the society. The varna system


practised here created a gradation of status between them and that
apart, ordains are prescribed on the professions to be engaged in. In
the pyramid of different caste system, the hierarchy of higher castes
occupying top positions in the pyramid where exclusive privilege of
education and consequently they were provided with the opportunity of
knocking away the white-collared jobs in the country. More than 50% of
the earnings of the State, it appears, has been spent in the disbursement
of the salaries to its servants, and such salary from the income of the
State is likely to go to the coffers and pockets of hierarchy of higher
castes to the entire exclusion of the downtrodden sections of the State in
the absence of reservation to BCs, SC and ST.
11.34

In framing the Constitution for any country, factors like historical,


sociological and economic and other relevant factors and situations
prevailing then in the country were to be taken into consideration to set
up the type of government needed to be established for a societal order
in the country. A cursory perusal of the Preamble and the Directive
Principles, Fundamental Rights Chapter, and other provisions in the
Constitution will reveal that the goal of the Constitution is to attain a
socialistic pattern of society, egalitarian in character, in the sense of
avoiding the concentration of assets in a few hands and lifting the
downtrodden sections of the society backward classes in this case to
a level playing field with all immordial and inalienable fundamental rights
normally made available to the citizens in a democracy. As such, the
concept of capitalism is anathema to the goal of our Constitution.

11.35

The introduction of Liberalization, Privatization and Globalization [LPG] in


this country is a sly move of the vested interests belonging to the
hierarchy of higher castes in rather a bid to abolish or take away the
reservation policy hitherto having been followed in the services under the
State. The act of the Union Government in establishing a National
Commission for Higher Education and Research by the introduction of
the National Commission for Higher Education and Research Bill, 2010
which is now put on hold utilizing the power inhering in its favour under
the various provisions of the Constitution as had already been referred
to the scheme of distribution of powers between
the Union
Government and the States in rather a bid to snatch away the powers
inhering in the States relatable to education under the faade of national
interest and to invest such powers in the hands of panchamurtis
Collegium members giving them full authority in the matter of
appointment of Chairperson and Members of the Commission and in the
matter of selection and appointment of Vice Chancellors of all
Universities in India and Head of Institutions of national importance, and
for determination, coordination, maintenance of standards in and
promotion of higher education and research including university
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education, technical and professional education which, in the very


nature of things cannot at all comprise of persons other than persons
belonging to hierarchy of higher castes will only deprive the
downtrodden masses of this country viz., the Backward Classes and the
Scheduled Castes and Scheduled Tribes of the benefits of reservation in
higher education and institutions.
11.36

If the National Commission for Higher Education and Research Bill, 2010
is allowed to be enacted by the Union Government, the rights of the
people of the State in getting higher education and getting admission in
Universities for science and technology courses or for professional
courses like engineering or medicine will be once and for all thrown to
winds. The further consequence to be ensured therefrom is that there
might not be any availability of people from the State for getting
employed in top-notch posts not only in the fields of technology and
science but also in the fields of medicine and engineering which, in the
eventuality of all probabilities, is likely to increase with the growth of the
State at an alarming level. Any in-surmounting obstacles in University
education are likely to rise. The first obstacle is the medium or language
of instruction to be adopted for teaching the various post-graduate
studies in the Universities to be established under the aforesaid Act. The
Constitution of India contains provisions relatable to official languages of
the States and the Centre. There is no national language at all as
having been provided for in the Constitution of India. Hindi, though
spoken by majority of the people of the country, is not the national
language. It is not as if Hindi is the only language spoken to in all the
States in India. Very many languages are being spoken to and such
languages became not only the official language of those States but also
occupy the position of the medium of instruction in their schools.
Besides, the official language is being introduced as the medium of
instruction in colleges in the Southern States like Tamil Nadu, not only in
science and arts but also for courses in medicine and engineering,
although English is generally used as the medium of instruction in
colleges and Universities throughout India for all courses of studies. If
one particular language, say Hindi, which is not the national language is
to be prescribed as the medium of instruction in higher education by the
Collegium contemplated under the Act, no one can prevent the
introduction of Hindi as the medium of instruction. The power that has
been granted under the Act in favour of the Collegium is so colossal and
enormous that even the Union Government cannot have any say in the
matter; Collegium is such an independent body, as already stated, with
untrammeled powers, by the enactment of an overriding provision in the
shape of Section 50. If such sort of a situation comes into existence,
pretty certain it is that, there is every likelihood of a rebellion that such
dictatorial powers having been granted to the Collegium, the Union
Government cannot take shelter by saying that it cannot interfere in the
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activities of the Collegium in view of the fact of the Collegium being an


independent authority under the Act.
11.37

Better it is, therefore, for the State Government to avoid such a pell-mell
catastrophic situation by the rebellion mood of the people of the State, to
avoid such strong protests against the enactment of the Bill. Or
otherwise, the State has to initiate measures for the amendment of the
provisions of the Constitution of India which, as already referred to, are
likely to snatch away the powers of the State in the matter of education
under the faade of national or public interest by the Centre.

11.38

The American Constitution works well by following dual polity in creating


citizenship of State as well as citizenship of U.S.A. By such dual polity,
the rights of the citizens of the State are demonstrably superior to that of
the citizenship of U.S.A. in the matter of getting admission in schools,
colleges and Universities in the State besides getting recruited to the
services under the State. The option open to the State is to prescribe
citizenship or residency in the State for getting admitted in educational
institutions or entering into State services.

11.39

In order to protect the rights of the people of the State, there is no need
to create a dual citizenship in India, but it would be suffice to amend the
provisions of the Indian Constitution in such a way in not encroaching
upon the rights of the State in all matters inclusive of education and the
right to employment under the State except in circumstances where a
situation has arisen in which the governance of the State cannot be
carried on in accordance with the provisions of the Constitution as has
been contemplated by Article 356 of the Constitution of India.

11.40

The rights of the people of the States are often tampered upon by the
Union Government and reduce the States to the level of Municipalities or
Village Panchayats under the faade of high-sounding phenomenon of
national interest. For example, reference may be made to Telengana
issue. The predominant Telugu speaking people in the Telengana region
want a separate State for them to be created. This is a long-felt demand
of those people. When the formation of a linguistic State is the order of
the day in India, and when especially all the States have been formed on
linguistic basis, there is no meaning in refusing to create Telengana as a
separate State on linguistic basis. The formation of such a State is
having its own advantages to the people of the State. It can be
explained with reference to certain recruitments sought to be made in the
Police as well as Judicial departments of the State of Andhra Pradesh.
The people belonging to Telengana region made agitations demanding
certain percentage of posts in Police as well as State Judiciary to be
separately allocated for Telengana region. Such a demand had been
negatived on the sole ground that regional allocation in the matter of
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recruitment to the posts is not in tune with the Constitution and therefore
that the demand was rejected on such a ground. If Telengana State was
formed, there could have been no hurdle or obstacle in the matter of
recruitment of people in the Police and Judiciary departments. The
entirety of posts in those departments could have been filled up by
Telengana region people without any sort of a legal or constitutional
hurdle. In order to quell the agitation being taken to the streets, better it
would be, to maintain peace and tranquility in the area, to concede with
the peoples demand of establishment of separate Telengana State.
11.41

Even if Telengana State is formed, the trampling of rights of the people of


Telengana region by the Union Government as relatable to matters of
gaining admission in educational institutions as well as in entering into
the services under the State by resorting to an enactment like the
National Commission for Higher Education and Research Bill, 2010
under the faade of national interest or public interest under the
relevant provisions of the Constitution, is plausible or possible.

11.42

As such, in order to avoid a pell-mell, calamitous situation very often


arising in this country in different States, the need of the hour is to
transform by way of amendment of the unity nature of the Constitution to
one of federal structure like the United States of America.

11.43

It can be concluded by saying that the very sanguine provisions just like
the ones that have been referred to in the earlier discussion shall be
considered to be ones which would maintain and preserve the unity and
integrity of the nation at the time of framing of the Constitution, are now
proving to be antithesis to the very aim and purpose for which those
provisions were originally framed.

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12.

RESERVATION UNDER TAMIL NADU ACT 45 OF 1994 EXISTENCE OF QUANTIFIABLE DATA - JUSTIFIABILITY
OR OTHERWISE THEREOF

12.1

On the 20th December, 1978, Shri Morarji Desai, the then Prime Minister
of India announced on the floor of the Parliament the decision to appoint
Backward Classes Commission under the Chairmanship of Shri
B.P.Mandal and four other members.

12.2.

The Commission started the work after the inaugural speech of Shri
Morarji Desai, Prime Minister of India on the 21st March, 1979 and ended
with the valedictory address by Smt.Indira Gandhi , the then Prime
Minister of India on the 12th December, 1980.

12.3

The terms of reference of the Commission were :(i)

to determine the criteria for defining the socially and educationally


backward classes;
(ii) to recommend steps to be taken for the advancement of the socially
and educationally backward classes of citizens so identified;
(iii) to examine the desirability or otherwise of making provision for the
reservation of appointments or posts in favour of such backward
classes of citizens which are not adequately represented in public
services and posts in connection with the affairs of the Union or of
any State; and
(iv) present to the President a report setting out the facts as found by
them and making such recommendations as they think proper.
In this connection, the Commission may also examine the
recommendations of the Backward Classes Commission appointed
earlier and the considerations which stood in the way of the acceptance
of its recommendations by Government.
12.4

The Mandal Commission evaluated the population of Other Backward


Classes [OBC] at 52%; the population of Scheduled Castes [SC] at 15%
and the population of Scheduled Tribes [ST] at 7.5% both totalling
22.5%.

12.5

The Supreme Court rendered a decision in M.R.Balaji v. State of Mysore


[AIR 1963 SC 649] saying that the totality of reservation should always
be less than fifty per cent and not even fifty per cent, i.e., the reservation
made in favour of OBC and SC/ ST put together should be less than 50%
and in any circumstances, the reservation should not go beyond 50%.

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12.6

The Mandal Commission took into consideration the dictum laid down by
the Supreme Court in the matter of reservation, recommended for
reservation of seats for the OBC in the Central services only to the extent
of 27% after deducting 22.5% [SC = 15% and ST = 7.5%] from 50%
which is the ceiling of reservation, and that perhaps was the reason that
the Mandal Commission did not even venture to recommend reservation
of 27.5% in favour of OBC though it evaluated the population of OBC at
52%. The Union Government issued an Official Memorandum in O.M.
No.36012/31/90-Estt.(SCT) Government of India, Ministry of Personnel,
Public Grievances & Pensions (Department of Personnel & Training),
dated the 13th August, 1990 reserving 27% of the vacancies in civil posts
and services under the Government of India for Socially and
Educationally Backward Classes [SEBCs] i.e., OBC, with a statement
that the candidates belonging to SEBCs recruited on the basis of merit in
an open competition on the same standards prescribed for the general
candidates shall not be adjusted against the reservation quota of 27 per
cent. It is further stated that the aforesaid reservation shall take effect
from 7/8/1990. However, this will not apply to vacancies where the
recruitment process has already been initiated prior to the issue of these
orders.

12.7

The Official Memorandum was issued by the Government of India


granting reservation of 27% to SEBCs to the extent of 27% vacancies in
civil posts was challenged before the Supreme Court in Indra Sawhney &
ors vs. Union of India and several other Writ Petitions. This case is
popularly known as the Mandal case or Indra Sawhneys case reported
in 1992 SCC (L&S) Supp 1.

12.8

The Supreme Court expressly and explicitly said and laid down the
proposition that the reservation to be made in favour of SEBCs in the
Central services can go far beyond 50% in certain extraordinary
circumstances and such reservation cannot be put in a straight-jacket
that it shall always be less than 50% as has been laid down in M.R.Balaji
supra. The Supreme Court formulated the concept of creamy layer in
the matter of providing reservation to SEBCs in the services though a
specific provision traceable to such aspect of the matter is not found
adumbrated in any of the provisions of the Constitution.

12.9

Article 16(4), though formed part and parcel of the fundamental rights
chapter, the Supreme Court laid down the dictum that it is not a
fundamental right but it is only an enabling right. The creamy layer
concept, therefore, must be considered as an enabling right falling under
Art.16(4). The manner and methodology of determination of a caste or
community or class falling within the groove of SEBC and the power of
the State and the Courts of superior jurisdiction thereto has been earlier
discussed in detail in this report. The power to prescribe creamy layer
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and the stage of its application has been vested in the State Government
and similarly the power to test the reasonableness or otherwise thereof is
vested in the courts of superior jurisdiction. The power of prescription of
creamy layer by such courts even at the initial stage does not appear to
be correct. Further, at the time of prescription of creamy layer, the
judiciary had not at all been provided with or taken into consideration any
data for the prescription of creamy layer. All these aspects have earlier
been discussed in a detailed fashion. However, the correctness or
otherwise of such prescription of creamy layer cannot at all be
canvassed and bypassed by this Commission till up to the review or
reversal of such prescription of creamy layer which is binding on all
authorities under Art.141 of the Constitution of India. It may however be
stated at this juncture that if the factual matrix of the case in a given
situation does not warrant the application of creamy layer concept, in the
sense, a situation arising for the top most layer of SEBCs not entirely
knocking away the benefit of reservation leaving enough to the bottommost layer of such class, there is no need at all for the application of
such a concept in preventing the entry of eligible SEBCs by making them
ineligible.
12.10

The decision in Indra Sawhney was rendered on 16.11.1992. In between


M.R.Balaji in the year 1951 and Indra Sawhney in the year 1992, many a
decision of the Supreme Court emerged regarding extent of reservation
to be provided for SEBCs in the services under the State under Art.16(4)
about which detailed discussion has been made earlier. However, the
hues of views expressed by different Honble Judges of the Supreme
Court may be referred to herein at the risk of repetition to explain the
probable reason why the nine-Judge Bench in Indra Sawhney went to
the extent of saying that reservation within 50% is not an inflexible rule
and it could go beyond 50%, quite contra to what the Honble Judges
said in M.R.Balaji.

12.11

This aspect of the matter has been dealt with vividly and elaborately by
Pandian,J. in Indra Sawhney which gets reflected as follows:184. The question of percentage of reservation was examined in Thomas
[State of Kerala v. N.M.Thomas - (1976) 2 SCC 310 @ 387-388, para 191]
wherein Fazal Ali J., not agreeing with Balaji has observed thus:.. clause (4) of Article 16 does not fix any limit on the power of the
Government to make reservation. Since clause (4) is a part of Article 16
of the Constitution it is manifest that the State cannot be allowed to
indulge in excessive reservation so as to defeat the policy contained in
Article 16(1). As to what would be a suitable reservation within
permissible limits will depend upon the facts and circumstances of each
case and no hard and fast rule can be laid down, nor can this matter be
reduced to a mathematical formula so as to be adhered to in all cases.
Decided cases of this Court have no doubt laid down that the percentage

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of reservation should not exceed 50%. As I read the authorities, this is,
however, a rule of caution and does not exhaust all categories. Suppose
for instance, a State has a large number of backward classes of citizens
which constitute 80% of the population and the Government, in order to
give them proper representation, reserves 80% of the jobs for them, can it
be said that the percentage of reservation is bad and violates the
permissible limits of clause (4) of Article 16? The answer must
necessarily be in the negative. The dominant object of this provision is to
take steps to make inadequate representation adequate.
185. Krishna Iyer,J., in the same decision has agreed with the above view of
Fazal Ali,J, stating that the arithmetical limit of 50% in any one year
set by some earlier rulings cannot perhaps be pressed too far.(SCC p.371,
para 143).
186. Though Mathew, J, did not specifically deal with this maximum limit of
reservation, nevertheless the tenor of his judgment indicates that he did not
favour 50% rule.
187. Chinnappa Reddy, J., in Karamchari [Akhil Bharatiya Soshit Karamchari
Sangh v. Union of India (1981) 1 SCC 246] has expressed his view on the
ceiling of reservation as follows:.There is no fixed ceiling to reservation or preferential treatment in
favour of the Scheduled Castes and Scheduled Tribes though generally
reservation may not be far in excess of fifty per cent. There is no rigidity
about the fifty per cent rule which is only a convenient guideline laid down
by Judges. Every case must be decided with reference to the present
practical results yielded by the application of the particular rule of
preferential treatment and not with reference to hypothetical results which
the application of the rule may yield in the future. Judged in the light of
this discussion I am unable to find anything illegal or unconstitutional in
any one of the impugned orders and circulars
188. Again in Vasanth Kumar [K.C.Vasanth Kumar v. State of Karnataka
1985 Supp SCC 714] Chinnappa Reddy,J reiterates his view taken in
Karamchari in the following words : (SCC p.752, para 58)
We must repeat here, what we have said earlier, that there is no
scientific statistical data or evidence of expert administrators who have
made any study of the problem to support the opinion that reservation in
excess of 50 per cent may impair efficiency.
189.

190. It should not be out of place to recall the observation of Hegde, J in Hira
Lal [State of Punjab v. Hira Lal (1970) 3 SCC 567] observing: (SCC p.572,
para 8)
The extent of reservation to be made is primarily a matter for the State
to decide. By this we do not mean to say that the decision of the State is

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not open to judicial review. .The length of the leap to be provided


depends upon the gap to be covered. (emphasis supplied)
191. Desai, J in Vasanth Kumar expressed his view that in dealing with the
question of reservation in favour of Scheduled Castes, Scheduled Tribes as
well as other SEBCs Judiciary retained its traditional blindfold on its eyes and
thereby ignored perceived realities. (SCC p.729, para 20)

12.12

In K.C.Vasanth Kumar supra each of the five Judges gave their own
separate but independent judgments.

12.13 What Justice E.S.Venkataramaiah said as to why this necessity arose for
reservation of backward classes is relevant and it runs as under:
perhaps, not all inequalities can ever be rectified and it is certain that
some can be rectified only by creating new inequalities and new
grievances. By strict application of general equality what would be the
result; it will result in permanent injustice or permanent inequality. This
sort of a proposition was first enunciated by the Permanent Court of
International Justice in the famous case of Minority Schools in Albenia
etc. In that case, the Permanent Court of International Justice held that
the application of perfect equality may result in inequality. Therefore
protection is given in the form of reservation. It has been termed as
protective discrimination or compensative discrimination and Justice
Venkataramaiah coined a new word result-oriented discrimination.
Then, such a competition must be fair. Not only it must be free but it
must also be fair. The competition to be fair, we must have to give
certain weightage or certain handicaps or certain reservations for those
persons who are hailing from such socially or educationally backward
classes of persons and that is why the classification or reservation is
provided under the Constitution. While discussing this issue, Justice
Venkataramaiah said, for generations, i.e., for thousands of years, some
communities have been kept in the dark and they were not permitted to
learn. Such a situation cannot be rectified in a short span of forty or fifty
years but it has to go on for a number of years till the State comes to a
conclusion that all of them have attained certain amount of advancement.
Then, he says, Inalienable rights cannot be earned posthumously.
Social injustice always balances its books with the red ink. What he
means by saying so is that if we do not take proper protection or
consideration, it will result in revolution. According to him, caste is a
relevant factor for consideration in determining the backwardness of a
class or caste.
12.14

Sawant, J. in the same case expressed his views in para 518 (page 256)
which reads as follows: 518. To summarise, the question may be answered thus. There is no legal
infirmity in keeping the reservations under clause (4) alone or under clause

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(4) and clause (1) of Article 16 together, exceeding 50%. However, validity
of the extent of excess of reservations over 50% would depend upon the
facts and circumstances of each case including the field in which and the
grade or level of administration for which the reservation is kept. Although,
further, legally and theoretically the excess of reservations over 50% may be
justified, it would ordinarily be wise and nothing much would be lost, if the
intentions of the Framers of the Constitution and the observations of
Dr.Ambedkar, on the subject in particular, are kept in mind. The reservations
should further be kept category and gradewise at appropriate percentages
and for practical purposes the extent of reservations should be calculated
category and gradewise.

12.15

At the time when the decision in Indra Sawhney was rendered by the
Supreme Court, the State of Tamil Nadu was having 69% reservation in
educational institutions as well as in the services under the State for
Backward Classes of citizens and for persons belonging to Scheduled
Castes and Scheduled Tribes.(i.e.,BC-30%; MBC-20%; SC-18%; and
ST-1% all totaling to 69%)

12.16

Various representatives of political parties and social Forums


representing backward classes had requested the State Government to
consider all the ramifications of the Supreme Court judgment in Indra
Sawhney regarding reservation under Art.16(4) and take steps to make
their interests bequeathed.

12.17

The State of Tamil Nadu, in order to protect the existing reservation of


69% as stated earlier, passed the Tamil Nadu Backward Classes,
Scheduled Castes and Scheduled Tribes [Reservation of Seats in
Educational Institutions and of Appointments to the Posts in the Services
under the State] Act, 1993 [Act 95/1994] which received the assent of the
President of India on the 19th July 1994. Section 5(1) of the said Act
prescribes,
5(1) Notwithstanding anything contained in any judgment, decree or order of
any court or other authority, having regard to the inadequate representation
in the services under the State, of the Backward Classes of citizens and the
persons belonging to the Scheduled Castes and the Scheduled Tribes, who
constitute the majority of the total population of the State of Tamil Nadu, the
reservation for appointments or posts in the services under the State, for the
Backward Classes of citizens and for the persons belonging to the
Scheduled Castes and Scheduled Tribes, shall be sixty-nine per cent.

Thus, 69% reservation which was in existence had been protected by the
said Act notwithstanding the decision of the Supreme Court in Indra
Sawhney restricting the reservation to 50%.
12.18

One Thiru S.P.Sampathkumar filed a Writ Petition in the Supreme Court


in W.P. No. 454/1994 challenging the validity of the Tamil Nadu Act 45 of
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1994. The petitioner also filed a prayer for stay of the implementation of
the said Act. Some other writ petitions were also filed before the
Supreme Court on the same grounds. The above said writ petition and
the other petitions connected therewith were taken up for consideration
by the Supreme Court on 1.8.1994 and the matter was referred to a
Constitution Bench. The Supreme Court did not stay the operation of the
aforesaid Act.
12.19

However, the Supreme Court passed an interim order dated 18.8.1994


directing the Government of Tamil Nadu to create additional seats in
professional colleges to accommodate students who would have been
selected if the 50% rule was there instead of 69% rule. Such similar
orders were passed every year in the subsequent years till up to 2010.
W.P. Nos.454/94, 473/94, 238/95 and 35/96 came up before the Full
Bench of the Supreme Court comprising of the Honble The Chief
Justice, and K.S.Radhakrishnan and Swatanter Kumar JJ., and the
Bench passed orders on 13.7.2010 which gets reflected as below:Writ Petition (C) Nos.454/1994, 473/1994, 238/1995 and 35/1996:
The short question which arises for determination in these writ petitions
is, whether the quantum of reservation provided for in Tamil Nadu Backward
Classes, Scheduled Castes and Scheduled Tribes [Reservation of Seats in
Educational Institutions and of Appointments to the Posts in the Services
under the State] Act, 1993, is valid?
The impugned Act received the Presidential assent on 19th July, 1994.
Subsequent to the filing of the above writ petitions, Articles 15 and 16 of
the Constitution have been amended vide Constitution [Ninety-third
Amendment] Act, 2005, and Constitution [Eighty-first Amendment] Act, 2000,
respectively, which Amendment Acts have been the subject matter of
subsequent decisions of this Court in the cases of M.Nagaraj & ors vs. Union
of India & ors, reported in 2006 (8) S.C.C. 212 and Ashoka Kumar Thakur
vs. Union of India & Ors reported in 2008 (6) S.C.C. 1, in which, inter alia, it
has been laid down that if a State wants to exceed fifty per cent reservation,
then it is required to base its decision on the quantifiable data. In the
present case, this exercise has not been done. Therefore, keeping in mind
the said parameter, we direct the State to place the quantifiable data before
the Tamil Nadu State Backward Classes Commission and, on the basis of
such quantifiable data amongst other things; the Commission will decide the
quantum of reservation. We are informed by learned Solicitor General that
such data in the form of Reports, which are subsequently prepared, is
already available.
Consequently, these writ petitions stand disposed of with a direction to
the State Government to re-visit and take appropriate decision in the light of
what is stated above. It needs to be mentioned that the interim orders
passed by this Court from time to time in relation to admissions to

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Educational Institutions shall continue to be in force and in operation for a


period of one year from today.
In the circumstances, we are not expressing any opinion on the validity of
1993 Act at this stage.
The Registry is directed to send the records and proceedings, if any,
connected to these writ petitions back to the State.

12.20

VOICE (Consumer Care Council) knocked at the doors of the Supreme


Court in W.P. (Civil) No.194/2006 impleading the State of Tamil Nadu as
respondent and sought a direction to the State of Tamil Nadu to
implement the directions of the Supreme Court contained in its judgment
dated 16.11.1992 in the case of Indras Sawhney in the context of
identification and exclusion of the creamy layer from among the
backward class communities in the State of Tamil Nadu. The Supreme
Court, on 3.1.2011 passed an order as below on the petition so filed.
The matter is squarely covered by our order dated 13th July, 2010 in Writ
Petition (C) No.259 of 1994 and others (including Writ Petition (C) Nos.454
of 1994, 473 of 1994, 238 of 1995 and 35 of 1996). By the said order we
have directed the State of Tamil Nadu to collect and place the quantifiable
data before the Tamil Nadu State Backward Classes Commission and on the
basis of such data the Commission should decide the quantum of
reservation.
In the light of our order dated 13th July, 2010 in the above writ petitions, we
are directing the Tamil Nadu State Backward Classes Commission also to
examine the grievance of the petitioner herein and, accordingly, decide the
matter within the time bound programme given in our order dated 13th July,
2010. In short, we hold that the facts of Writ Petition (C) No.194 of 2006 filed
by VOICE (Consumer Care Council) against the State of Tamil Nadu stands
covered by our order dated 13th July, 2010. Accordingly, the writ petition
stands disposed of.

12.21

From what has been extracted above, it is thus crystal clear that the writ
petitions filed before the Supreme Court challenging the constitutional
validity of the Tamil Nadu Act 45 of 1994 had been disposed of by the
Supreme Court without expressing any opinion on the constitutional
validity of the said Act and the records relevant to such writ petitions
which were available in the Supreme Court have been remitted back to
the State. While effecting such a disposal, the Supreme Court further
referred to its decisions in M.Nagaraj & ors vs. Union of India & ors,
reported in 2006 (8) S.C.C. 212 and Ashoka Kumar Thakur vs. Union of
India & Ors reported in 2008 (6) S.C.C. 1 and stated that in those
decisions it has been laid down that if a State wants to exceed fifty per
cent reservation, then it is required to base its decision on the
quantifiable data. The Supreme Court further directed that keeping in
mind the said parameter, we direct the State to place the quantifiable
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data before the Tamil Nadu State Backward Classes Commission and on
the basis of such quantifiable data amongst other things, the
Commission will decide the quantum of reservation.
12.22

Even prior to the passing of the enactment viz., Tamil Nadu Act 45 of
1994 admitted fact it is that the reservation in existence for Backward
Classes was to the tune of 50% and for the Scheduled Castes to the
tune of 18% all totalling to 68%. The Tamil Nadu Second Backward
Classes Commission, popularly known as the Ambasankar Commission,
was set up, pursuant to the orders of the Supreme Court, by the Tamil
Nadu Government in G.O. Ms. No.3078, Social Welfare Department,
dated 13th December 1982 under the Chairmanship of Thiru
J.A.Ambasankar, I.A.S.(Retd), former Chairman, Tamil Nadu Public
Service Commission with 12 other members. Further, an addition of
eight members was made thereto and making a total of 21 members in
all inclusive of the Chairman. The said Commission, within a time frame
of two years, conducted the stupendous task of surveying five crores of
people, collected details relatable to social, educational, economical and
other attendant factors inclusive of caste and submitted two reports to
the Government one by the Chairman and the other by the majority
members constituting the Commission. After elaborate discussion of the
reports prepared by the Chairman as well as the majority members
report prepared by them, in the Commissions meetings held on 18th and
19th February 1985, eventually, the Chairman called the members to
attend the meeting on 26th February 1985 at the office of the Commission
to sign the final report.

12.23

While the decisions of the Commission had been completely unanimous


in all the meetings of the Commission on four subjects there were
differing opinions. They were:
(1) Limits to Reservation.Whether the existing 50 per cent should
be continued or increased or whether it should be restricted to 32
per cent for the Backward Classes.
(2) Deviation from the State average. After a thorough examination
of the yardstick laid down by Balaji and Mandal Commission this
Commission had tentatively decided to have the divergence of 10
per cent from the State average. All the tables were worked out
on this basis and were available to the Members. It was then time
for them to take a final decision.
(3) Compartmental Reservation and (4) Preparation of one or
separate list for Article 15(4) and Article 16(4) These subjects
were thrown open for discussion.
Both the reports were submitted to the Government on 28.2.1985 for
consideration and action.
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12.24

Pertinent it is to refer to the passing of G.O.Ms. No.242, Backward


Classes Welfare, Nutritious Meal Programme and Social Welfare
Department, dated 28.3.1989, bifurcating the reservation made in favour
of Backward Classes to the extent of 50% only to two categories one
for Backward Classes providing 30% reservation and the other for Most
Backward Classes and Denotified Communities providing reservation
upto 20%. The reservation thus in existence then under various
categories was:Scheduled Castes and Scheduled Tribes
Most Backward Classes and Denotified Communities
Backward Classes
Open Competition

..
..
..
..

18%
20%
30%
32%

In the year 1990, based on the directions of the High Court, Madras, in
W.P. No.1692 of 1987, the Government issued orders in G.O. Ms.
No.1090, Adi-Dravidar and Tribal Welfare Department, dated 22.6.90
providing for 1% reservation for Scheduled Tribes taken from the 32%
reservation then available under Open Competition. Thus, the 69%
reservation had been in vogue in the State of Tamil Nadu since 1990.
12.25

The Tamil Nadu Act 45 of 1994 was framed, as already stated,


subsequent to the decision in Indra Sawhney on 16.11.1992 in order to
preserve and maintain 69% reservation then in existence.

12.26

It is to be pointed out here that at the time when the writ petitions
challenging the reservation of 69% filed before the Supreme Court came
to be disposed of, learned Solicitor General, it is said, informed the
Supreme Court that such quantifiable data is already available. The
reference made by learned Solicitor General with reference to
quantifiable data is traceable to the report of the Tamil Nadu Second
Backward Classes Commission headed by Thiru J.A.Ambasankar. The
list of Backward Classes as prepared by the said Commission was
continuously updated by the State on the recommendations made by this
Backward Classes Commission constituted on the mandate issued by
the Supreme Court in Indra Sawhney. Therefore, the list of Backward
Classes/communities as available in the State of Tamil Nadu is an up-todate list as of now. The quantifiable data relatable to the representation
in the services under the State were not available at the time of disposal
of the abovesaid cases by the Supreme Court. The State therefore
called for particulars from each and every Department under it regarding
the representation of all castes and communities irrespective of
backward classes or otherwise from among the employees of the State
totalling to about 12 lakhs. All such particulars collected by the State had
been sent to this Commission for consideration and evaluation of the
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effective representation of various communities and castes under


Art.16(4). For comparison purposes, this Commission also called for
particulars from the Union regarding the representation of Other
Backward Classes in the Central services, by resorting to filing of
petitions under the Right to Information Act. Pursuant thereto, particulars
in respect of certain departments of the Union had been received in this
Commission.
12.27

The State also called for particulars regarding the representation of


Backward Classes in educational institutions and professional colleges
directing that the particulars be sent directly to this Commission. Such
particulars called for by the State had also been received by this
Commission.

12.28

Apart from the collection of such quantifiable data materials from the
sources as indicated above, either furnished or obtained by the State or
received by this Commission directly from the educational institutions
and professional colleges as per the directions of the State, quantifiable
data materials were also sought to be supplied by the State by placing so
much reliance on the report of the Tamil Nadu Second Backward
Classes Commission. The Commission had taken up on itself almost a
stupendous task of collecting data from several massive surveys. One of
them was on a census basis covering one crore of households. The data
collected from this census gave a complete picture of the educational
attainments of the various communities together with their population.
The entire information was computerized and the output tables enabled
the Commission after several permutations and combinations and after a
good deal of trial and error, to arrive at a rational scientific and very
satisfactory set of criteria for determination of educational backwardness/
advancement.

12.29

For evaluating the social backwardness of all communities in the State of


Tamil Nadu, the Commission undertook a one per cent Random Sample
Survey. Even this meant covering more than a lakh of households. The
items surveyed included a wide range of subjects, for example, the
assets and the liabilities, the income and expenditure of the households,
the extent of indebtedness, the reasons for such indebtedness and the
source from which the loans were taken, the nature of employment, the
participation of women in hard manual labour and the employment of
children in fields and factories, the marital status and the age at
marriage, the maternal and infantile mortality were also covered by the
survey. There was also an exhaustive survey of the impact of the
welfare measures. The social customs, usages and prohibitions among
the various backward communities were also gathered. Such exhaustive
data formed the formidable base of the Commissions analysis of social
backwardness.
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12.30

For purposes of evaluating the adequacy or otherwise of representations


of the various communities in the services of the State, local bodies and
public sector undertakings, a cent per cent survey of the employees of
these three sectors was conducted.

12.31

Other adhoc surveys about school education, collegiate education,


admissions to institutions of higher learning and selection by the Tamil
Nadu Public Service Commission were also undertaken.

12.32

The analysis, with the help of experts in the field and the determination of
appropriate criteria, and indicators for backwardness was something
unique that the said Commission had completed.

12.33

The said Commission, on a rational and scientific basis had actually


decided the backwardness or otherwise of all communities answering
these criteria and indicators and had given an impressive and exhaustive
set of tables in support of every conclusion in the report. The said
Commission of course collected mountains of data. It had utilized only a
tiny fraction of it, that portion that is necessary and sufficient for arriving
at reasonable, rational and convincing set of criteria for the determination
of social and educational backwardness. The rest of the data will prove
a mine of information for any planner or administrator. A probing
researcher might find in it fruitful sources of material for drawing the
social and educational picture of the State of Tamil Nadu. All such
details and information voiced by the Chairman Thiru J.A.Ambasankar in
the Foreword minuted by him.

12.34

The Members of the said Commission, it appears, did an intensive


touring of all the district centres for more than thirty days, heard and
recorded the evidence of more than 2000 witnesses. Two seminars
were held, one at Madurai where Members and experts in various fields
met and exchanged ideas about the identification of backwardness and
how to improve the lot of the unfortunate backward classes. Very helpful
conclusions were arrived at as a result of these deliberations.

12.35

During the course of the stupendous and delicate work of the said
Commission, many legal questions, it appears, had arisen. To clear
them a seminar was arranged at Chennai under the Chairmanship of the
very able and erudite scholar and retired Chief Justice Honble Thiru
Ramaprasada Rao. Besides learned advocates presenting papers in
which they gave free expression and deep thought to the subject, the
seminar helped the Members of the said Commission to clear many of
their doubts.

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12.36

A census survey of 500 lakh of inhabitants of the entire State of Tamil


Nadu was conducted. More than 25000 employees of the State
Government and local bodies were hand-picked, specially trained and
put on the job. The items gathered by this census survey were larger in
number when compared to the survey conducted by the Government of
India, as the Chairman of the said Commission would say. The said
Commission also collected population figures and the entire education
picture of each and every member of all the inhabitants of nearly 5 crore.
The figures so collected were analysed in record time and output tables
were placed in the hands of the Members.

12.37

To determine the social backwardness, exhaustive information about a


lakh of families in the State were collected through a random sample
survey for approximately one per cent households in the State. The
computerized tables relating to the sample survey were also handed over
to the Members.

12.38

More than 8.5 lakh employees of Government/Local Bodies and Public


Sector Undertakings were enumerated with full details of the nature of
their job, their salary, their qualification and the community to which they
belonged. The Members were supplied with the relevant tables of the
survey.

12.39

Many adhoc surveys were also conducted. About 2000 schools


furnished particulars about their students. All the 232 colleges supplied
information about those undergoing studies. The particulars about
admission to professional colleges like medicine, engineering, law and
veterinary for the past three years were also collected. The details of
recruitment made by the Tamil Nadu Public Service Commission were
gathered and enumerated. The impact of the welfare measures of the
Government executed by the Backward Classes Department was also
studied in detail. From a cursory glance of the large number of tables
prepared by the Commission it could be pointed out how the Commission
had exhaustive information on all issues social and educational not to
speak of the economic conditions of the people. Based on the mountain
of statistics so gathered and the evidence of 2000 and odd persons
recorded during the sittings and the deliberations in the two seminars,
the draft recommendations were given to the Members for the purpose of
having a detailed discussion. The Members were also told that they
were free to express their views without any reservation. The Chairman,
it appears, had pointed out that differences would be reconciled and
rational decisions would be arrived at.

12.40

The materials as stated above have been collected from the separate
report of the said Chairmans recommendations.

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12.41

On an analysis of the materials so collected, the majority Members of the


Tamil Nadu Second Backward Classes Commission prepared and
presented a separate report containing their recommendations. The
majority Members of the Commission in their report expressed the view
that the reservation for Backward Classes should be 67% which is
proportionate to their population or at least the then existing level of
reservation for them at 50% contrary to what the Chairman of the
Commission said that the totality of reservation in accordance with the
dictum of the Supreme Court should be not exceeding 50% by
reservation to BCs has been kept at the level of 32%, keeping in view the
reservation to be made to SC at 18% which is proportionate to their
population making the totality of reservation to the extent of 50%.

12.42

The Chairman of the said Commission in his recommendations added a


special note on Mond Golla which gets reflected at page 23 thereof, as
noted below: The community Mond Golla finds a place both in the list of Backward
Classes throughout the State of Tamil Nadu (Item No.119) and in the list of
Most Backward Classes throughout the State of Tamil Nadu (Item No.20) in
the Annexure to G.O. Ms. No.72, Social Welfare Department, dated 1st
February 1980. In the printed list of communities where code numbers
were given for surveys, Mond Golla has been given Code No.120 among
the Most Backward Classes and Yadavar of whom Mond Golla forms part
has been given Code No.279. Census results have been separately
tabulated for these two items. It is only fitting and proper that the figures for
Mond Golla (Code No.120) should be merged with those of Yadavar
(Code No.279) which forms part of it. This has been done accordingly.

12.43

Besides, the Chairman had also made a specific Note in respect of


certain individual entries relatable to Eravallar and Koravars/Koachas.
Such specific Notes are traceable to page 26 of his report as getting
reflected below:(5) Specific notes in respect of certain individual entries:(a) Eravallar (Code No.108) is treated as a Scheduled Tribe through the
State of Tamil Nadu. Hence not included in this revised list.
(b) All Koravars/Korachas in the list of Denotified communities (including
Koracha in the list of Backward Classes besides Veppur Parayar and
Venganur Adi Dravidar have been dropped as per contents of item (1)
indicated above.
(6) New communities are added as per the final recommendations of the
Commission.

The Chairman also recommended for the deletion from the existing list of
Backward Classes as being ineligible for reservation which is getting
revealed by the Table appended to his report at page 36 under the
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caption Ineligible for reservation Nu (1) Table Existing Backward


Classes. The majority Members of the Commission prepared a
separate list of recommendations.
The reason why the majority
Members of the Commission prepared a separate report containing their
recommendations is traceable to the preamble portion of their report
which gets reflected as under: The Tamil Nadu Second Backward Classes Commission has been
constituted by the Government with twenty one Members including the
Chairman. No special status was ascribed to the Chairman different from
and above that of any other Member, as per the order constituting the
commission. Experts in the field have also given the opinion that the view of
the majority Members including the Chairman will be taken as the view of the
Commission, even though the Chairman is opposed to that view. In the
Second Backward Classes Commission almost all the Members are having
the same view on all vital issues in determining the backwardness of the
people, whereas the Chairman holds an independent view.
But
unfortunately the Chairman has been trying to maintain and to pass of his
individual view as the view of the Commission and the other Members can
only record a dissenting note to his report. The Chairman has divulged his
true colour only towards the fag end of the tenure of the Commission. He
has taken the Members for a ride and has not taken the Members into
confidence regarding the results of the survey, which came to his possession
several months ago. The Chairman misled the Members by giving the
impression that he would incorporate the view of the majority of Members as
the Commissions view. The application of the results of the survey was first
disclosed to the Members during the third week of February so as to cripple
the Members in the discharge of their function. Most of the Members are
distinguished politicians with a high caliber of understanding the problems of
the backward classes with sufficient expertise in the field besides vast
experience. Instead of discussing the policy in drafting the report before
hand and ascertaining the views of the majority, the Chairman has brought
out his report first and adopting the pressure tactics to obtain the signatures
of the Members on dotted lines in his report. Now every member has
realized that the Chairman is putting the cart before the horse.

This apart, there was a sharp division of opinion between the majority
Members and the Chairman with reference to four subjects about which
a reference has been made in the earlier part of this report.
12.44

The Plan of Action of the Commission as contained in Chapter 2 of


Volume I at pages 4 and 5 indicates in clear-cut terms the methodology
contemplated for the enumeration of backwardness of all castes in the
State of Tamil Nadu, the resultant product of deep thinking and
deliberation in a scientific manner. The Commission did not at all go into
the survey for identifying the socially and educationally backward classes
by evolving the criteria or indices for such identification. It is worthwhile
to note, as indicated earlier, the survey conducted for the purpose of
identifying all such castes that were in existence in the State to provide
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succour and welfare to such sections of the society. The entire Chapter
2, extracted here, is proof positive of the intention of the Commission for
conferring the benefits on all deserving sections of the society
irrespective of their caste in a scientific manner. Chapter 2 runs thus:CHAPTER 2
PLAN OF ACTION OF THE COMMISSION
2.01. On receipt of G.O.Ms.No.3078, Social Welfare Department, dated 13th
December, 1982, setting up the Commission, the Chairman assumed Office
on 17th December 1982.
2.02. In order to elicit public opinion, a questionnaire was designed, covering
a wide range of subjects touching the population of each community, its
social status, its educational achievements, its share in public services, its
economic progress, its housing conditions and its participation in Family
Welfare. It was issued to the General Public. After receipt of replies to this
questionnaire, the Commission programmed a tour of the entire State to hear
all the public representatives and record their evidence.
SEMINAR ON BACKWARDNESS
2.03. In order to give the members of the Tamil Nadu Backward Classes
Commission, an exposure to modern thought on social and educational
backwardness that form the main ingredients of Articles 15(4) and 16(4) of
the Constitution, a seminar was arranged in the Madurai Kamaraj University
Campus. The main objective of this seminar was to start a well-informed
debate on the terms of reference of the Commission and establish a rapport
between its members and academics. SpecialiST in Sociology, Social
Sciences, Social History and Social Anthropology besides experts in the field
of education as well as distinguished professors, research scholars,
economiST and econometricians participated in the seminar. There was a
free and frank exchange of views between the members of the Commission
and the experts in the various fields who participated in the seminar.
LEGAL SEMINAR
2.04. The main term of reference of the Commission was to review the
existing list of backward classes with reference to Articles 15(4) and 16(4)
and other relevant provisions of the Constitution keeping in mind the various
decisions of the Supreme Court. For such a review, a thorough grasp of the
relevant Articles of the Constitution and the important decisions of several
High Courts and Supreme Court bearing on them is necessary. For this
purpose a seminar was arranged at Madras inviting leading practitioners of
Law, JuriST and legal luminaries to discuss Legal points that have arisen for
the consideration of the Commission in reviewing the existing list of
backward classes.

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SOCIO-ECONOMIC SURVEY STAGEI POPULATION STATISTICS


2.05. The Commission was requested to make a scientific and factual
investigation of the conditions of the backward classes. According to the
Supreme Courts order the commissions work was to cover all such
questions and issues as have a bearing upon the enumeration and
classification of the backward classes in the State and reservation in
admission to educational institutions as well as appointments in Government
service. For any meaningful analysis of the conditions of the backward
classes or reservations of seats in educational institutions or for
appointments in Government service, precise population of the backward
communities caste-wise is essential. It is found that enumeration of
backward classes caste-wise was stopped as early as 1931. The latest
census report does not furnish the population of backward classes castewise. The absence of such figures was indeed keenly felt by the previous
commissions who had to resort to projections over a long period of time as
many as 50 or 60 years to arrive at the population of the backward
community adopting the uniform overall growth rate of the entire population.
This projection suffers from two serious lapses. Projection over a long period
of time or over a wide area may not yield any reliable or accurate figure.
Adopting the overall growth rate for the entire population for the projection of
the population of backward communities whose growth rates might be
different, cannot ensure accuracy. It was therefore decided to embark upon a
cent per cent door-to-door enumeration for carrying out the directive of the
Supreme Court for enumeration and classification of backward classes.
EDUCATIONAL STATISTICS
2.06. It is essential to know the strength of students now in schools and
colleges in the various classes. Since there are as many as 37,000 schools
(primary, middle, high schools and higher secondary schools) in the State, a
5 per cent Random Sample Survey of these schools was taken up for
survey. A comprehensive questionnaire designed for issue to all the 232
colleges and 7 Universities in the State to elicit information about the
strength of students in the various classes and also the considered opinion
of the heads of these institutions on many questions touching the
educational achievements of backward communities and possible ways of
improving them.
SOCIO-EDUCATIONAL-CUM-ECONOMIC SURVEY-STAGE II
2.07. For the identification of the backward classes with reference to the
criteria for educational and social backwardness, a purposive random
sample survey of 1 per cent of households was conducted.
EMPLOYEES SURVEY
2.08. For an analysis of the existing conditions obtaining in the employment
of backward classes under the State Government, a full scale survey was
found necessary to determine the exact number of Government servants in

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each grade as on 1st July 1983. This survey also covered Local Bodies and
State Government Public Sector undertakings. Detailed information and full
particulars about the employees were obtained by addressing nearly 12,500
Drawing Officers. Particulars of candidates selected for various services by
Tamil Nadu Public Service Commission during the years 1980, and 82 were
also called for.
REVIEW OF THE RESERVATIONS MADE TO BACKWARD CLASS
STUDENTS IN INSTITUTIONS OF HIGHER LEARING AND TECHNICAL
COURSES
2.09. Detailed information was called for from the Director of Technical
Education, Director of Medical Education, Vice-Chancellors of the Anna
University of Technology, Madras, the Agricultural University at Coimbatore
and the Director of Legal Studies about the candidates admitted in the
various courses for the three years 1980, 81 and 82.
2.10. To assist the Commission in its deliberations the following committees
were constituted;
EXPERT COMMITTEE
For identification of Backward Classes it is very essential to lay down criteria
for social and educational backwardness in conformity with court decisions
and Constitutional provisions. To help the Commission in determining such
criteria a Committee of Experts was set up (vide Appendix 2).
EVALUATION COMMITTEE
Huge mass of data collected from various sources has to be analysed
through sophisticated methods for arriving at acceptable conclusions. For
this purpose, an Evaluation Committee (vide Appendix 3) consisting of
Econometricians, Statisticians and Educationists with research experience
has been drawn up. This Committee had several sittings and drew up
detailed procedures for the analysis of the data.
HOSTEL COMMITTEE
Exhaustive particulars were called for from the District Backward Classes
Welfare Officers and Wardens of the Backward Class Hostels. These
particulars relate to the sanctioned strength of the hostels, the number
admitted and the location of the hostels. A Committee (vide Appendix 4)
consisting of administrators, medical officers and nutrition experts has gone
into this question in all its aspects.
41.The Chairman of the Commission, utilizing the materials gathered,
prepared a Statement showing the indices and scores for the backwardness
of the communities in the State under different Tables. The Tables prepared
by him were :-

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Alpha Table
Section A
Section B
Section C

Section D
Section E
Section F

Beta Table(1)
Beta Table(2)
Beta Table(3)

Beta Table(4)
Gamma Table(1)
Gamma Table(2)

Delta Table(1)

Delta Table(2)

Most Backward Classes


Backward Classes
Backward Class communities of Kanniyakumari
District and Shencottah Taluk in Tirunelveli
District.
Denotified Communities
Backward Classes communities of other
Religions
Backward Class communities with 1 or No
schedules canvassed in Stage II Survey
Communities not eligible because of noneligibility under education
Communities which are not eligible because of
lack of minimum score
Communities with 1 or No Schedules canvassed
under Stage II Survey but not eligible due to
want of minimum score under education
Communities under Others
Forward Communities eligible for inclusion in the
Backward Classes List
Forward Communities covered by Stage II
Survey only and found eligible for inclusion
Forward Communities enumerated in both
Surveys and found not eligible for inclusion
under Backward Classes List
Forward Communities covered by Stage II
Survey and found not eligible

NOTE :
(1)
ALPHA TABLE: Showing the indices and scores of the existing
Backward Classes which are eligible for retention in the Backward
Classes list.
(2)
BETA TABLE : Showing the indices and scores of the existing
Backward Classes which are not eligible for retention in the Backward
Classes list
(3)
DELTA TABLE: Showing the indices and scores of the existing
Forward Communities claiming inclusion in the Backward Classes list
NOT ELIGIBLE FOR INCLUSION.
(4)
GAMMA TABLE: Showing the indices and scores for the Forward
Communities claiming inclusion in the Backward Classes list ELIGIBLE
FOR INCLUSION.

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The Tables as aforesaid contain the following Columns:


(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)

Serial Number
Code number of the community
Caste
Mainly Manual Labour
Occupation
Women participation
Child Labour
Katcha House
Poverty
Loans for subsistence
Loans from Pawn Broker
H.S.S. and above
H.S. only
Dropout
Illiterates
Caste
Occupation
Poverty
Total
H.S.S. and above
H.S. only
Dropout or Illiterates
Total
Grand Total

Social
Backwardness
Indices for
Backwardness
Educational
Backwardness

Social
Score for
Backwardness
Educational

All the Tables as above are annexed in the APPENDIX to this Report.
12.45

The Chairman of said Commission also prepared separate Tables for the
purpose of reservation under Art.15(4) as well as under Art.16(4).

12.46

The Chairman of said Commission also prepared another set of Tables


taking into consideration the Stage average as the basis for determining
the social and educational backwardness as desired by the Members.
Separate Tables have been prepared for the purpose of reservation
under Art.15(4). The details of the aforesaid Tables as contained at page
44 of Chairmans recommendations were:
A
B
C
D

Backward Classes eligible for retention in the Backward Classes list


Backward Classes not eligible for retention in the Backward Classes list
Forward Classes that represented for inclusion in the backward classes
and found eligible for inclusion in the backward classes list
Forward Classes that represented for inclusion in the Backward Classes
but found not eligible for inclusion in the backward classes list

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According to the Members there is no need for preparing a separate list


for purposes of reservation of appointments under Article 16(4) and as
such no separate list has been prepared for reservation under Article
16(4). There will be a common list for purposes of reservation under
both Articles 15(4) and 16(4) as desired by the Members of the
Commission.
These Tables as contained at pages 50 to 86 of the said Report of the
Chairmans Recommendations are also annexed in the APPENDIX to
this Report.
12.47

The Chairmans recommendations on the review of existing list of


Backward Classes are contained in pages 3 to 5 of his report of
Recommendations. It is extracted as below:RECOMMENDATIONS
REVIEW OF THE EXISTING LIST OF BACKWARD CLASSES.
Principles and procedures:- It is useful to recapitulate the principles and
outline the procedures followed by the Commission in the review of the
existing list of backward classes and in disposing of the claims of forward
communities for inclusion in the list of backward classes prepared by the
Commission.
Basic material:- G.O.Ms.No.72, Social Welfare Department, dated 1st
February 1980 contains the approved list of backward classes as an
Annexure. This forms the basis of analysis by the Commission.
Enumeration and classification of communities Census survey The
Supreme Court in Writ Petitions No.4995, 4996, 4997/80 and Writ Petition
No.402/81 ordered that the reference to the Commission should cover all
such questions as had a bearing on the enumeration and classification of
Backward Classes. The Commission was also required to make a scientific
and factual investigation of the conditions of the backward classes. For this
purpose, a complete list of all the communities in the State including Forward
Communities was prepared by the Statistics Department. All cases of
forward communities that claimed inclusion in the list of Backward Classes
contained in the references from Government and Director of Backward
Classes received till then were also included. The communities so compiled
were given code numbers. The Stage-I (Census) survey began on 1st July
1983 with these materials.
Random sample Survey:- While this survey was on, petitions were received
by the Commission from several communities for declaring them as
Backward Classes. Similar requests were also made by some communities
during the sittings of the Commission. The Government sent a list of some

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more communities for evaluation. Since the Stage-I census had already
started and was fast progressing these communities could only be included
and given code numbers in the random sample survey conducted by the
Commission. They bear code Nos.951 to 986.
Addition of certain communities by Government:- In their D.O. letter
No.107210/BC 1.3/84-2, dated 14th December 1984, Government ordered
that in reviewing the existing list of Backward Classes the commissions
report would also deal with all such questions and issues as having a
bearing upon the enumeration and classification of Backward Classes in the
State with reference to Clause (viii) of the terms of reference. They also
pointed out that some additional entries were made to the Annexure of
G.O.Ms.No.72, Social Welfare Department, dated 1st February 1980.
In G.O.Ms.No.1409, Social Welfare Department, dated 12th May 1982,
Government ordered that the term Labbai included Rowthar and Marakayar.
Serial No.55 of the Backward Classes list was modified as 55. Labbais
including Rowther and Marakkayar (whether their spoken language is
Tamil or Urdu).
The Commission had already assigned to the communities Labbai,
Marakayar and Rowthar Code Nos.802, 803 and 804 respectively. Since the
surveys contained figures about these three communities separately in
pursuance of the Government orders they were clubbed together and
analysed.
Similarly, in G.O.Ms.No.2029, Social Welfare Department, dated 5th August
1983, Government ordered the inclusion of Christian Nadar, Shanar and
Gramani in the list of Backward Classes. This inclusion was after the
commencement of Stage-I survey in which the Christian Nadar, Shanar and
Gramani were enumerated under converts to Christianity from Backward
Classes who were then among forward communities. However, in pursuance
of the G.O. a separate code number 986 was given in Stage-II survey for
Christian Nadar, Shanar and Gramani and enumerated. The results thrown
up in this survey were analysed for evaluation of the Christian Nadar, Shanar
and Gramani under the backward class group.
Transferred Territories:- Kanniyakumari district and Shencottah taluk of
Tirunelveli district were the territories transferred from the erstwhile
Travancore State to Tamil Nadu during the States Reorganisation in 1956.
These territories had a distinct culture of their own, followed customs and
traditions peculiar to their area and were highly advanced in education.
Comparison of the 21 communities belonging and peculiar to the transferred
territories with reference to the average of the whole of Tamil Nadu will work
to the detriment of these communities. They were therefore, treated as a
separate unit and their backwardness evaluated.
Peculiar cases:- In the course of the State II survey it was found that there
were communities with small population scattered throughout the State
which would not produce even one schedule for evaluation. There were
certain other communities which produced just one schedule which would

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not help in the proper appreciation of their social backwardness. The


Commission, therefore, decided to maintain the status quo ante of these
communities as far as their social status was concerned. Such communities
if they score at least under one criterion/indicator under education they will
be eligible for inclusion/retention in the Backward Classes list.
Special Steps:- There was complete blackout about the social and
educational backwardness of eight forward communities which requested
inclusion in the backward classes list. Special steps were, therefore, taken to
enumerate them under the guidance and control of the Special Officer
(Statistics) of this commission of the rank of a Joint Director, Statistics. The
figures thrown up in this Survey were also used for evaluation of these
communities.
Dictum of the Supreme Court:- The Commission followed the dictum of the
Supreme Court that a community should be both socially and educationally
backward for eligibility for inclusion in the list of Backward Classes under
Articles 15(4) and 16(4) of the Constitution.
Criteria and indicators for backwardness:- The following are the criteria and
indicators for social and educational backwardness and assignment of
weightage:A. SOCIAL BACKWARDNESS
(1) Caste/Class accepted as socially backward.
(2) Occupational backwardness:- Caste/Class which mainly depends on
manual labour or unclean or regarding occupations for its livelihood.
(or)
Caste/Class whose percentage of women engaged in manual labour is more
than that of the State by at least 10 per cent of it.
(or)
Caste/Class whose percentage of children employed is more than that of the
State by at least 10 per cent of it.
(or)
(3)Poverty:- Caste/Class whose percentage of households living in Katcha
houses is more than that of the State by at least 10 per cent of it.
(or)
Caste/Class whose percentage of households taking subsistence loans is
more than that of the State by at least 10 per cent of it.
(or)
Caste/Class whose percentage of households getting loans from moneylenders/pawn brokers is more than that of the State by at least 10 per cent of
it.

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B. EDUCATIONAL BACKWARDNESS
Level of educational achievement:- (1) Caste/Class whose percentage of
population who have passed only the 10th standard or its equivalent is less
than that of the State by at least 10 per cent of it.
(2) Caste/Class whose percentage of population who have passed the
higher secondary or its equivalent and above is less than that of the State by
at least 10 per cent of it.
Extent of educational backwardness:-3 Caste/Class whole percentage of
illiteracy is more than that of the State by at least 10 per cent of it.
(or)
Caste/Class whose percentage of dropout is more than that of the State by
at least 10 percent of it.
Assignment of weightage:- Each of the indicators for social backwardness
will be assigned 5 points. Each of the indicators for educational
backwardness will be assigned 2 points
Eligibility of the existing backward classes for retention in the list of
Backward Classes.- If any of the existing communities in the Backward
Classes list scores a minimum of 8 points out of the total of 15 points with at
least one score under each of social and educational backwardness it will be
retained in the list. Otherwise it will get deleted.
Inclusion of Forward Communities in the Backward Classes list:- The
Forward Communities applying for inclusion in the list of backward classes
prepared by the Commission will not be given any marks for their caste as
being higher in the hierarchy. Excluding this the total score comes to 12.
Only such of those communities which score a minimum of 6 points with at
least one credit under each of the criteria for social and educational
backwardness will be eligible for inclusion in the Backward Classes list. The
claims of others will be rejected.

12.48

The Chairman of the said Commission also made his recommendations


regarding the review of list of Backward Classes eligible for reservation
of appointments under Art.16(4) of the Constitution which gets reflected
at page 5 of his recommendations as under:RECOMMENDATIONS
REVIEW OF THE LIST OF BACKWARD CLASSES
ELIGIBLE FOR RESERVATION OF APPOINTMENTS
UNDER ARTICLE 16(4) OF THE CONSTITUTION.
Among those castes/classes who are declared as socially and educationally
backward those whose total representation in services (Government, Local
Bodies and State, Public Sector Undertakings taken together) is less than

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the State average will be eligible for reservation of appointment under Article
16(4) on quantitative basis. This is furnished in Lamba Table. Lamba Table
(1) shows the castes/classes among the existing forward classes who qualify
to be considered as backward and who are eligible for reservation of
appointments under Article 16(4) on quantitative basis. These tables show
the Code number name of the community, population and ratio of
representation.
Those castes/classes whose representation though above the Stage
average is below it in at least two of the four groups to which the employees
have been classified taking into account their scales of pay will be eligible for
reservation of appointments on qualitative basis. The liST of such
castes/classes belonging to existing backward classes and those belonging
to the existing forward classes who have qualified to be considered as
backward are given in Mu (1) and Mu(2) Tables.
The Nu Table shows the castes/classes who are ineligible for reservation of
appointments under Article 16(4) as their existing level of representation both
quantitatively and qualitatively is adequate.
Certain communities who claimed to be included in the Backward Classes
list after the commencement of Stage I Survey could be included only in
Stage II random sample survey and were given code numbers 951 to 986.
The data obtained from this Stage II Survey were utilized to determine Social
and Educational backwardness and, therefore, their eligibility for reservation
in article 15(4) of the Constitution.
The sigma table shows the castes/classes among these forward classes who
are socially and educationally backward. Details about their employment in
services are not available as they were not separately included in the survey
of employees. The Government will have to collect the employment
particulars and decide the question whether they are inadequately
represented quantitatively or qualitatively and their eligibility for reservation
of appointments under Article 16(4).

12.49

Taking into consideration the report of the Recommendations of the


Chairman, the report of the Recommendations of the majority Members
of the said Commission, the State Government issued G.O. Ms.
No.1564, Social Welfare Department, dated 30th July 1985 accepting the
report of the majority Members of the Commission and revising the list of
Backward Classes accordingly. The said revised List contains 201
entries as Backward Classes.

12.50

The Tamil Nadu Second Backward Classes Commission enumerated the


population in the State of Tamil Nadu during 1983 District-wise. The
particulars of District-wise population of Scheduled Castes, Scheduled
Tribes, Backward Classes and Others as enumerated by the
Commission are as under:-

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District-wise Population of SC, ST, BC and Others enumerated


by the Tamil Nadu Second Backward Classes Commission (1983)
District

SC

ST

BC

Others

Total

Madras

477695

6555

1828234

1268552

3581036

7.2%

Chengalpattu

965993

50647

1975204

687897

3679741

7.4%

North Arcot

886260

96734

3094974

402538

4480506

9.0%

South Arcot

1133179

56525

2743818

443994

4377516

8.8%

Dharmapuri

283792

47985

1500981

221298

2054056

4.1%

Salem

570688

128626

2619180

207314

3525808

7.1%

Periyar

354428

16878

1643164

144936

2159406

4.3%

Coimbatore

503819

24090

2079756

489902

3097567

6.2%

The Nilgiris

168039

22259

365755

130614

686667

1.4%

Tiruchirapalli

700551

53916

2443680

491719

3689866

7.4%

Thanjavur

961735

6560

2751181

422708

4142184

8.3%

Pudukottai

194283

1818

884507

99835

1180443

2.4%

Madurai

709991

15679

3459618

473828

4659116

9.3%

Ramanathapuram

614966

6973

2667704

277320

3566963

7.1%

Tirunelveli

621450

12958

2433921

573351

3641680

7.3%

62048

6715

1079128

320297

1468188

2.9%

Total

9208917

554918

33570805

6656103

49990743

100.0%

% of population

18.42%

1.11%

67.15%

13.31%

100.0%

Kanyakumari

Population enumerated in the Census, 1981

48297456

From the Table above, it could be seen that the population enumerated
as found traceable to Census, 1981 is 4,82,97,456 while the population
enumerated by the Tamil Nadu Second Backward Classes Commission
in 1983 is 4,99,90,743. The difference between these two figures is
17,00,287 which is the difference in population due to the expiry of two
years from the Census enumerated in the year 1981 and the consequent
increase in population in the succeeding two years. That perhaps is the
reason for the marginal difference in population figures to the tune of
17,00,287.This shows the authenticity and dependability of the
enumeration of the population of the State of Tamil Nadu belonging to
Scheduled Castes, Scheduled Tribes, Backward Classes and Others,
conducted by the Tamil Nadu Second Backward Classes Commission.

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12.51

The Government issued orders in G.O. Ms.No.242, Backward Classes


Welfare, Nutritious Meal Programme and Social Welfare Department,
dated 28.3.1989, providing for 20% reservation for Most Backward
Classes and Denotified Communities from out of the 50% reservation
then available for all Backward Classes leaving the remaining 30% for
Backward Classes. However, separate lists of Most Backward Classes
and Denotified Communities were maintained consequent on the
issuance of G.O.Ms. Nos.1566 and 1567, Social Welfare Department,
both dated 30th July, 1985. The aforesaid two Government Orders were
issued by the Government consequent on the recommendations made
by the Tamil Nadu Second Backward Classes Commission.

12.52

The enumeration of population of Scheduled Castes, Scheduled Tribes


and Backward Classes by the Tamil Nadu Second Backward Classes
Commission, as already stated, is an authentic and dependable
enumeration in view of the fact that it more or less corresponds with the
enumeration made by the Census Department in 1981. Of the total
population of the various communities in the State of Tamil Nadu,
67.15% belonged to Backward Classes, 18.42% were Scheduled Castes
and 1.11% were Scheduled Tribes, besides 13.3% represented Others

12.53

Even before the enactment of Tamil Nadu Act 45 of 1994, the reservation
then prevailing was 50% for Backward Classes, 18% for Scheduled
Castes and 1% for Scheduled Tribes, the total of such reservation being
69% in all. It could be seen from the above that even though the
population of Backward Classes was 67.15% the reservation made for
BCs was only to the tune of 50% which is far lesser than their population
of 67.15%. The majority Members of the Tamil Nadu Second Backward
Classes Commission, at that time, pressed for 67% reservation to
Backward Classes in proportion to their population, in the services under
the State under Art.16(4) as well as in admission in educational
institutions under Art.15(4) of the Constitution. It is to be noted here that
the Scheduled Castes were given reservation of 18% in the services
under the State as well as in admission in educational institutions in the
State of Tamil Nadu proportionate to their population, besides granting
1% reservation to the Scheduled Tribes which is more or less
proportionate to their population, both in the services under the State and
in the matter of admission in educational institutions. Art.16(4) is the one
and the only provision in the Constitution providing for reservation for
Backward Classes which terminology, according to the Supreme Court,
includes Scheduled Castes, Scheduled Tribes, Backward Classes and
Most Backward Classes. Such being the case, it goes without saying
that the Backward Classes population amounting to 67.15% of the total
population deserves reservation proportionate to their population just like
the Scheduled Castes and Scheduled Tribes. But that sort of a
reservation of 67% was not at all given to the Backward Classes under
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the Tamil Nadu Act 45 of 1994 and instead, reservation to the extent of
50% alone was granted both for the purposes of Art.15(4) and Art.16(4)
of the Constitution notwithstanding the fact that quantifiable data as
available then was justifying the reservation far in excess of 50% to the
tune of 67%. Of course, the Preamble to the Tamil Nadu Act 45 of 1994
did not refer to the statistical data relatable to the enumeration of
Backward Classes in the State of Tamil Nadu in the year 1983 while
providing reservation for Backward Classes to the tune of 50%. If the
State had duly applied its mind, reservation to the tune of 67% could
have been given for the Backward Classes based on the quantifiable
data available then besides providing for 18% reservation for Scheduled
Castes and 1% reservation for Scheduled Tribes which are proportionate
to their population, all totalling to 86%. The prompting for making 69%
reservation by the Tamil Nadu Act 45 of 1994 was due to the fact that the
existing reservation was to the tune of 69% then available in the State.
Even at that time there was enough justification for making reservation of
67% for Backward Classes, 18% for Scheduled Castes and 1% for
Scheduled Tribes, totalling to 86%. But the reservation actually made for
Backward Classes under the said Act is only to the tune of 50% which is
perfectly justified on the basis of the quantifiable data available then.
12.54

VOICE (Consumer Care Council) approached the Supreme Court of


India by filing Writ Petition (Civil) No.194 of 2006 seeking exclusion of
creamy layer from the benefit of reservation in the matter of admission to
educational institutions and in the matter of employment in various
services under the State of Tamil Nadu. The Full Bench of the Supreme
Court disposed of the above Writ Petition by observing as follows: The matter is squarely covered by our order dated 13th July, 2010 in Writ
Petition (C) No.259 of 1994 and others (including Writ Petition (C) Nos.454
of 1994, 473 of 1994, 238 of 1995 and 35 of 1996). By the said order we
have directed the State of Tamil Nadu to collect and place the quantifiable
data before the Tamil Nadu State Backward Classes Commission and on the
basis of such data the Commission should decide the quantum of
reservation.
In the light of our order dated 13th July, 2010 in the above writ petitions,
we are directing the Tamil Nadu State Backward Classes Commission also
to examine the grievance of the petitioner herein and, accordingly, decide
the matter within the time bound programme given in our order dated 13th
July, 2010. In short, we hold that the facts of Writ Petition (C) No.194 of
2006 filed by VOICE (Consumer Care Council) against the State of Tamil
Nadu stands covered by our order dated 13th July, 2010. Accordingly, the
writ petition stands disposed of.

12.55. No doubt true it is that the Tamil Nadu Act 45 of 1994 does not at all
contain any creamy layer exclusion provision.

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12.56

The concept of introduction of creamy layer originates from the principle


that the benefit of reservation are often snatched away by the top layer of
the Backward Classes/ Castes leaving nothing to the bottom layer of
such classes or castes. This sort of a concept of creamy layer was
conceived to give succour and benefit to the backward classes in the
sense of full benefits accruing from out of the reservation to be given to
such backward classes and the intention underlying such a concept was
not at all to deprive such classes of the benefits accruing out of
reservation.

12.57

The concept of creamy layer had been introduced by the nine-Judges


Bench decision of the Supreme Court in Indra Sawhney and the relevant
portion in the judgment occurring in paragraphs 791 and 792 are
extracted as below:791. On the other hand, the learned counsel for the States of Bihar, Tamil
Nadu, Kerala and other counsel for respondents strongly oppose any such
distinction. It is submitted that once a class is identified as a backward class
after applying the relevant criteria including the economic one, it is not
permissible to apply the economic criteria once again and sub-divide a
backward class into two sub-categories. Counsel for the State of Tamil
Nadu submitted further that at one state (in July 1979) the State of Tamil
Nadu did indeed prescribe such an income limit but had to delete it in view of
the practical difficulties encountered and also in view of the representations
received. In this behalf, the learned counsel invited our attention to Chapter
7-H (pages 60 to 62) of the Ambasankar Commission (Tamil Nadu Second
Backward Classes Commission) Report. According to the respondents the
argument of creamy layer is but a mere ruse, a trick, to deprive the
backward classes of the benefit of reservations. It is submitted that no
member of backward class has come forward with this plea and that it will
becomes the members of forward classes to raise this point. Strong reliance
is placed upon the observations of Chinnappa Reddy, J in Vasanth Kumar to
the following effect: (SCC p.763, para 72)
.One must, however, enter a caveat to the criticism that the
benefits of reservation are often snatched away by the top
creamy layer of backward class or caste. That a few of the seats
and posts reserved for backward classes are snatched away by
the more fortunate among them is not to say that reservation is
not necessary. This is bound to happen in a competitive society
such as ours. Are not the unreserved seats and posts snatched
away, in the same way, by the top creamy layer of society itself?
Seats reserved for the backward classes are taken away by the
top layers amongst them on the same principle of merit on which
the unreserved seats are taken away by the top layers of society.
How can it be bad if reserved seats and posts are snatched away
by the creamy layer of backward classes, if such snatching away
of unreserved posts by the top creamy layer of society itself is not
bad?

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792. In our opinion, it is not a question of permissibility or desirability of such


test but one of proper and more appropriate identification of a class a
backward class. The very concept of a class denotes a number of persons
having certain common traits which distinguish them from the others. In a
backward class under clause (4) of Article 16, if the connecting link is the
social backwardness, it should broadly be the same in a given class. 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. They
would be misfits in the class. After excluding them alone, would the class be
a compact class. In fact, such exclusion benefits the truly backward.
Difficulty, however, really lies in drawing the line how and where to draw
the line? For, while drawing the line, it should be ensured that it does not
result in taking away with one hand what is given by the other. The basis of
exclusion should not merely be economic, unless, of course, the economic
advancement is so high that it necessarily means social advancement. Let
us illustrate the point. A member of backward class, say a member of
carpenter caste, goes to Middle East and works there as a carpenter. If you
take his annual income in rupees, it would be fairly high from the Indian
standard. Is he to be excluded from the Backward Class? Are his children
in India to be deprived of the benefit of Article 16(4)? Situation may,
however, be different, if he rises so high economically as to become say a
factory owner himself. In such a situation, his social status also rises. He
himself would be in a position to provide employment to others. In such a
case, his income is merely a measure of his social status. Even otherwise,
there are several practical difficulties too in imposing an income ceiling. For
example, annual income of Rs.36,000 may not could for much in a city like
Bombay, Delhi or Calcutta whereas it may be a handsome income in rural
India anywhere. The line to be drawn must be for the entire country or a
given State or should it differ from rural to urban areas and so on. Further,
income from agriculture may be difficult to assess and, therefore, in the case
of agriculturists, the line may have to be drawn with reference to the extent of
holding. While the income of a person can be taken as a measure of his
social advancement, the time to be prescribed should not be such as to
result in taking away with one hand what is given with the other. The income
limit must be such as to mean and signify social advancement. At the same
time, it must be recognised that there are certain positions, the occupants of
which can be treated as socially advanced without any further enquiry. For
example, if a member of a designated backward class becomes a member of
IAS or IPS or any other All India Service, his status is society (social status)
rises; he is no longer socially disadvantaged. His children get full opportunity
to realise their potential. They are in no way handicapped in the race of life.
His salary is also such that he is above want. It is but logical that in such a
situation, his children are not given the benefit of reservation. For by giving
them the benefit of reservation, other disadvantaged members of that
backward class may be deprived of that benefit. It is then argued for the
respondents that one swallow doesnt make the summer, and that merely
because a few members of a caste or class become socially advanced, the
class/caste as such does not cease to be backward. It is pointed out that
clause (4) of Article 16 aims at group backwardness and not individual

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backwardness. While we agree that clause (4) aims at group backwardness,


we feel that exclusion of such socially advanced members will make the
class a truly backward class and would more appropriately serve the
purpose and object of clause (4). (This discussion is confined to Other
Backward Classes only and has no relevance in the case of Scheduled
Tribes and Scheduled Castes).

12.58

A deeper scrutiny of the extracts as above will indicate in a crystal clear


fashion the agonizing situation created in the minds of the Honble
Judges comprising the nine-Judges Bench as to the imposition of the
role of creamy layer. They themselves admitted that the drawing of a
line for fixation of creamy layer is such a difficult and onerous task and to
explain this they have quoted certain examples with reference to the
earning capacity of a carpenter employed in a foreign stores and also the
annual income earned by a resident in posh cities like Bombay, Delhi
and Calcutta as comparable to the income of persons living in rural parts
of India. As such, it is crystal clear that the fixation of income criteria of
individuals for the purpose of creamy layer serving as an exclusion
clause from the backward classes cannot at all be one and the same for
all the regions and States in a vast country like India. But the income
criteria to be fixed for the purpose of creamy layer has to be devised on
State to State basis by analyzing the existence of several factors which
should be taken into consideration for the drawing of a line on a realistic
basis. If the line that is drawn is shorn of reality of the situation, pretty
certain it is, the form of reservation that had been conferred upon the
backward classes is to be taken in its entirety. It will result in taking away
with one hand what is given with the other. It will also tantamount to
duping, doping and making the people live on promises of conferment of
reservation to the backward classes. The nine-Judge Bench itself said in
express and explicit terms that the line so drawn must be a realistic one
that it should not take away the benefits that had been conferred upon
such classes. If this sort of an exercise is required to be done, the Bench
would say, to confer this sort of a benefit of reservation, confer such
benefits to the truly disadvantaged group of people in the backward
classes without allowing the top most group of people in such backward
classes deriving the entirety of benefits to themselves. The Bench does
not indicate the methodology or procedure to be evolved in the
application of the concept of creamy layer. However, in the subsequent
decisions of the Supreme Court, in M.Nagaraj and Ashoka Kumar Thakur
mentioned supra, the Supreme Court has stated that qualitative
exclusion has to be done by the application of economic criteria for
creamy layer for the determination of the backward classes. What has
been further advocated is that the Government of India evolved certain
criteria for exclusion and the criteria so evolved may be adopted. Saying
so, it appears, is not in consonance with what has been stated in Indra
Sawhney supra by the nine-Judge Bench.

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12.59

This Commission by its letter dated 9.5.2011 requested the Government


of India to furnish the statistical data, if any, either asked for or given by
the Government of India to the Supreme Court in M.Nagaraj & Ors vs.
Union of India & Ors [W.P.(C) 61/2000 decided on 19.10.2008] and in
Ashoka Kumar Thakur vs. Union of India & Ors [W.P.(C) 265/2006
decided on 10.4.2008].

12.60

The Government of India, Ministry of Personnel, Public Grievances &


Pensions, Department of Personnel & Training, in their letter
No.43011/191/2011-Estt.(Res), dated 21.6.2011 informed that no
information is available on such aspect of the matter. It appears that at
the time when Indra Sawhney was decided by the Supreme Court, no
such statistical data were furnished by the Government of India. A
criterion, it appears, had been evolved by the Government of India only
subsequent to Indra Sawhney.

12.61

The nine-Judge Bench decision in Indra Sawhney made an attempt to


draw a line for the fixation of income limit for the application of creamy
layer exclusion clause. While doing so, they said that the limit to be
prescribed should not be such as to result in taking away with one hand
what is given by the other, i.e., the extent of reservation conferred upon
any class should not at all be taken away by the application of creamy
layer exclusion.

12.62

This Commission requested the Government of India, Ministry of


Personnel, Public Grievances & Pensions, Department of Personnel &
Training to furnish the statistical data if any available with the
Government which showed that the population of persons falling within
the creamy layer from the Other Backward Classes [OBC] population
was equivalent to or more than 25% i.e., [52% being the population of
OBC as estimated by the Mandal Commission MINUS 27% being the
reservation granted for OBC] of the total population of the country. The
Ministry has replied that no information is available with the Government
on such aspect of the matter. The creamy layer concept has been
applied without any statistical data based on the report of the Expert
Committee constituted by the Government of India. This Commission
took into account the data/particulars collected and gathered from the
Union Government and the State Government of Tamil Nadu for a
comparative study to sift, analyse and scan as to how the reservation
benefits have reached the backward classes of citizens. Pertinent it is to
point out here that the Union has applied the creamy layer concept
based on the report of the Expert Committee constituted by the
Government of India as directed by the Supreme Court in the matter of
reservations. It is to be noted that as far as the State of Tamil Nadu is
concerned that subsequent to Indra Sawhney, the Tamil Nadu Act 45 of
1994 had been enacted without making any provision for application of
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creamy layer. Right from 1994 till up to today the concept of creamy
layer was not at all applied in the State of Tamil Nadu either for
admission in educational institutions or for appointment in the services
under the State. It has also to be mentioned here that though
reservation provisions under Art.16(4) were available right from 1950
since the inception of the Constitution of India, no reservation has been
made in the Central services till upto 1992 when the decision in Indra
Sawhney was rendered by the Supreme Court. It is only subsequent to
Indra Sawhney that reservation in the Central services was sought to be
enforced, of course, with creamy layer. This Commission requested the
Government of India to furnish particulars showing the trend in
representation of OBC in public services in the Union during the past 15
years in the available Format with the Government of India. A reply
came from the Union Government with particulars of representation only
from the year 2004 onwards. It therefore appears that the Government
of India applied creamy layer purely on the strength of the decision of the
Supreme Court in Indra Sawhney without even having the necessary and
requisite particulars even before 2004.
12.63

The particulars of representation of SC, ST and OBC in the Central


services as on 1.1.2004, 1.1.2005, 1.1.2006 and 1.1.2008 in a tabular
statement has been received from the Government of India. The Table
so received is reflected as under:Representation of SC, ST and OBC in the Central Government Services
Number of personnel
Group

As on
1.1.2004

Total
80011

SC
No.

ST
%

No.

OBC
%

No.

9744

12.2%

3311

4.1%

3090

3.9%

1.1.2005

81665

9652

11.8%

3489

4.3%

3838

4.7%

1.1.2006

114256

14719

12.9%

4408

3.9%

6028

5.3%

1.1.2008

97951

12281

12.5%

4754

4.9%

5331

5.4%

1.1.2004

135409

19602

14.5%

6274

4.6%

3123

2.3%

1.1.2005

140686

19276

13.7%

6268

4.5%

3266

2.3%

1.1.2006

174965

26256

15.0%

9939

5.7%

6241

3.6%

1.1.2008

140223

20884

14.9%

8004

5.7%

5562

4.0%

1.1.2004

2040970

344865

16.9%

136630

6.7%

106309

5.2%

1.1.2005

2041919

334374

16.4%

131915

6.5%

120249

5.9%

1.1.2006

2078929

340691

16.4%

142724

6.9%

132450

6.4%

1.1.2008

1822326

286573

15.7%

127871

7.0%

147327

8.1%

1.1.2004

802116

147212

18.4%

53776

6.7%

26158

3.3%

1.1.2005

768793

140939

18.3%

53133

6.9%

33039

4.3%

(excluding
Sweepers)

1.1.2006

825279

153286

18.6%

58377

7.1%

43249

5.2%

1.1.2008

706170

138466

19.6%

48728

6.9%

35468

5.0%

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Justification of Reservation under


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Number of personnel
Group

Sweepers

Total
(excluding
Sweepers)

Total
(including
Sweepers)

As on

Total

SC
No.

ST
%

No.

OBC
%

No.

1.1.2004

91601

59320

64.8%

5368

5.9%

3340

3.6%

1.1.2005

81356

48175

59.2%

4023

4.9%

1834

2.3%

1.1.2006

83061

49279

59.3%

4560

5.5%

1603

1.9%

1.1.2008

77295

39774

51.5%

4621

6.0%

2548

3.3%

1.1.2004

3058506

521423

17.0%

199991

6.5%

138680

4.5%

1.1.2005

3033063

504241

16.6%

194805

6.4%

160392

5.3%

1.1.2006

3193429

534952

16.8%

215448

6.7%

187968

5.9%

1.1.2008

2766670

458204

16.6%

189357

6.8%

193688

7.0%

1.1.2004

3150107

580743

18.4%

205359

6.5%

142020

4.5%

1.1.2005

3114419

552416

17.7%

198828

6.4%

162226

5.2%

1.1.2006

3276490

584231

17.8%

220008

6.7%

189571

5.8%

1.1.2008

2843965

497978

17.5%

193978

6.8%

196236

6.9%

Source: Ministry of Personnel, Public Grievances and Pension, Government of India.

The last column of the above Table shows the percentage of reservation
for OBC in the various cadres of service. In Group A, the representation
of OBC did not exceed 5.4%; in Group B the representation of OBC did
not exceed 4%; in Group C the representation of OBC did not exceed
6.4% ; in Group D the representation of OBC did not exceed 5.2% ; in
respect of Sweepers the representation of OBC did not exceed 3.6%.
The total representation of OBC excluding Sweepers did not exceed 7%
and including Sweepers OBC representation did not exceed 6.9%. This
indicates that the representation of OBC in the various cadres in the
Union did never exceed the maximum percentage as stated above and
their representation is far below 27% which is the maximum percentage
of reservation available to OBC. To put it otherwise, the representation
of OBC in various cadres in the Union services was so far only in single
digits. It is appalling to note that the representation of OBC in cadres like
Sweepers is not even more than 6.9% which itself is far below the
maximum of 27% available for OBC.
12.64

There was no reservation in the services under the Union right from 1950
till upto 1992 when the judgment in Indra Sawhney was delivered. The
Constitution, of course, conferred the benefit of reservation to the
Backward Classes right from its inception in 1950. Though the Union
conferred such benefits to the Scheduled Castes and Scheduled Tribes
even from 1950, yet, such benefits were not conferred by the Union on
the Other Backward Classes for the reasons best known to them. The
reservation for OBC was made by the Union only subsequent to Indra
Sawhney. Even during the period when there was no reservation in the
services under the Union, the OBC put together happened to get
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Justification of Reservation under


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recruited in the services under the Union to the extent of 14% in the said
services. This aspect of the matter is getting revealed from the report of
the Mandal Commission. After the introduction of reservation to OBC by
the Union subsequent to Indra Sawhney, it is rather a pity that the
reservation benefits granted to them to the extent of 27% had been
reduced or dwindled to single digits as seen above. The reason for such
dwindling rather appears to be the application of creamy layer exclusion
clause even at the initial stage of determination of Backward Classes
which had already been decided by the application of relevant criteria by
the competent authorities.
12.65

A cursory perusal of the data as made available to this Commission


shows that the representation of SC in the services under the Union
more or less reached 15% which is proportionate to their population. In
other cadres particularly in the cadre of Sweepers their
representation is far in excess of the proportion of their population. The
reason is obvious. No persons other than the SC will be competing to
become Sweepers, menials, etc. If these persons are not recruited, there
may not be Sweepers at all for doing such services. Nobody also
complains that they are enjoying the benefits of reservation more than
their percentage of population in such cadres. A review of the data
relatable to Scheduled Tribes more or less shows the same trend. The
reason why the SC and ST population had carved out enough of
representation in the services under the Union in these cadres is perhaps
due to the non-application of creamy layer to them. The minimal
representation of OBC in the various other cadres, it appears, is due to
the application of creamy layer.

12.66

This Commission called for data and particulars from the Union Public
Service Commission [UPSC] of the recruitments made by them for
various services under the Union. The UPSC also furnished the requisite
and necessary data and particulars called for by this Commission. From
the data furnished by them, this Commission is able to find out that the
selection to Defence services for employment in various cadres of
Officers is being done without following any reservation. The caste
break-up of candidates recommended for appointment through National
Defence Academy / Naval Academy / Combined Defence Services
(NDA/NA/CDS) Examinations conducted by UPSC during the period
from 2005-2006 to 2009-2010 has been culled out as below :-

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Justification of Reservation under


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Caste particulars of candidates recommended for appointment


through NDA/NA/CDS Examinations conducted by UPSC

Year

Total

ST
No.

Number of candidates
SC
OBC
No.
%
No.
%

No.

GT

2005-2006

1789

23

1.3%

35

2.0%

202

11.3%

1529

85.5%

2006-2007

1558

17

1.1%

40

2.6%

213

13.7%

1288

82.7%

2007-2008

1380

25

1.8%

42

3.0%

201

14.6%

1112

80.6%

2008-2009

1269

16

1.3%

48

3.8%

196

15.4%

1009

79.5%

2009-2010

1801

30

1.7%

44

2.4%

287

15.9%

1440

80.0%

NDA - National Defence Academy; NA - Naval Academy; CDS - Combined Defence Services
Source: Union Public Service Commission, New Delhi.

The particulars regarding recruitment made by UPSC by conducting


examinations for services other than NDA/NA/CDS as above by
following reservation with exclusion of creamy layer were also received
for the period 2005-2006 to 2009-2010 as has been culled out below :Caste particulars of candidates recommended for appointment
through other Examinations (other than NDA/NA/CDS) conducted by UPSC

Year

Total

ST
No.

Number of candidates
SC
OBC
No.
%
No.
%

No.

GT

2005-2006

1785

134

7.5%

266

14.9%

519

29.1%

866

48.5%

2006-2007

1602

111

6.9%

244

15.2%

503

31.4%

744

46.4%

2007-2008

2334

176

7.5%

360

15.4%

727

31.1%

1071

45.9%

2008-2009

2462

182

7.4%

373

15.2%

843

34.2%

1064

43.2%

2009-2010

2767

237

8.6%

453

16,4%

872

31.5%

1205

43.5%

Source: Union Public Service Commission, New Delhi.

12.67

From the Tables as above, it is perceivable that people from socially


advanced sections have benefited to an extent of about 80% or more on
all occasions in NDA/NA/CDS examinations, leaving lesser seats for the
backward classes, just because no reservation is followed. It is also to
be noted that about 45% of the posts have been taken away by the
general candidates in the examinations other than the defence service
examinations.

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12.68

It could be further seen that the estimates of National Commission for


Backward Classes project that more than 52% of the total population
belongs to socially and educationally backward classes. Census of India
enumerates the total of SC and ST population at 25%. The higher
castes population is around 20%. It is vulnerable to note that 20% of
higher castes have eaten away 80% of the seats in Defence Service
Examinations, leaving only 20% for the rest of the 80% population.
Similarly, the general candidates have benefited to the full extent of nonreserved seats. The participation of ST/SC/OBC in General seats is very
less, which also depicts how the 50% restriction is favouring the minority
population to acquire more proportion of seats. These are good
indicators to show how the backward classes will be worst hit if the
reservation is eliminated or its quantum is restricted to 50% in the State
with creamy layer.

12.69

The caste particulars of persons selected for various posts through


Railway Recruitment Board [RRB] during the period from 2005 to 2009
were also called for by this Commission. The Board, in turn, complied
with the request made by this Commission and furnished the particulars.
The particulars so collected had been tabulated by this Commission as
below :Particulars of SC/ST/OBC candidates selected by
Railway Recruitment Board, Chennai between 2005 and 2009
Sl.
No.

Category

Number of candidates selected


For General Seats
For Reserved Seats
Nos.
%
Nos.
%

Scheduled Castes

102

2.5%

640

15.6%

Scheduled Tribes

13

0.3%

969

23.5%

Other Backward Classes

575

14.0%

769

18.7%

Unreserved

1042

25.4%

**

**

Total

1732

42.2%

2378

Reserved seats include the posts filled through special recruitment for SC /ST.
Source: Railway Recruitment Board, Chennai.

From the tabulation so made, it could be seen that the total number of
candidates selected works out to 4100 and the representation of OBC
selected for various posts under reserved seats works out to 769
[18.7%].
12.70

As such, it is crystal clear that the representation of OBC in such


services also is far below 27% reservation made available to such
categories.

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12.71

This Commission called for particulars of personnel selected by the Tamil


Nadu Public Service Commission [TNPSC] for appointment in the
services under the Government of Tamil Nadu between the year 2005
and 2009. Such particulars have been furnished by TNPSC to this
Commission. From the particulars so furnished, it is seen that the total
recruitments were made to the services under the State to the tune of
6789. The number of BC candidates selected for State services works
out to 2027 [29.86%]; and the number of MBC/DNC candidates works
out to 1339 [19.72%]. Similarly, the total recruitments in Subordinate
Services were made to the tune of 19422 and out of this, BC candidates
works out to 5560 [28.63%] whereas the number of MBC/DNC
candidates works out to 3922 [20%].

12.72

The percentage of candidates selected from BC as well as MBC/DNC did


not at all exceed the percentage of reservation made available to such
categories.

12.73

Under the General Turn, with regard to State Services, the total number
of candidates selected comes to 2109 and out of this, 355
[5.2%] candidates were from MBC/DNC and 1377 [20.2%] were from
BC.

12.74

Similarly, under General Turn, with regard to Subordinate Services, the


total number of candidates selected comes to 5936 and out of this, 1287
[6.62%] candidates were from MBC/DNC and 4001 [20%] were from
BC.

12.75

The dictum laid down by the Supreme Court in Indra Sawhney is that the
candidates selected under General Turn Open quota on merit basis
cannot at all be adjusted in working out the quota prescribed for various
categories. As such, the candidates selected in General Turn from
MBC/DNC as well as BC cannot at all be adjusted against the reserved
quota of such categories. Admittedly, creamy layer was not adopted by
the State Government during the years under consideration for the
selection of candidates both for State services and the Subordinate
services. Because of the fact that creamy layer was not applied for
recruitment to State services and Subordinate services, adequate
representation of candidates belonging to MBC/DNC and BC were
recruited and the recruitment so made does not exceed the percentage
of quota respectively reserved for such categories. This is an illustration
to demonstrate that the cut-off point for application of creamy layer is yet
to arrive in the State of Tamil Nadu and that because of the nonapplication of creamy layer, the intended benefits of reservation at
particular percentage for various categories were to be achieved by them
in the matter of admission in educational institutions including
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Justification of Reservation under


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professional colleges like medicine and engineering and in appointments


in the services under the State in all cadres raising their living standards
in an appreciable manner. If this state of affairs is allowed to continue,
pretty certain it is that the Backward Classes would improve their social
status to the expected level so as to make them join the main stream of
life thereby achieving a level playing field more or less equivalent to the
position of the hierarchy of higher castes people.
12.76

Similar is the situation with regard to recruitments made by the Tamil


Nadu Uniformed Services Recruitment Board [TNUSRB] and the
Teachers Recruitment Board [TRB] during the period between 2005 and
2009.

12.77

The stage for application of creamy layer in the State of Tamil Nadu
providing reservation for MBC/DNC and BC in the matter of admission
into educational institutions including professional colleges and in the
matter of recruitment in the services under the State is not reached. This
aspect of the matter has been very well established by the analysis of the
data available as of now in the sense that the percentage of reservation
provided for MBC/DNC and BCs has not crossed the frontiers of
reserved percentage quota intended for each of those categories as
provided under the Tamil Nadu Act 45 of 1994. In the services under the
Union the principle of creamy layer is applied at the initial stage detriment
to backward classes in the sense of deleting certain backward classes as
not backward classes which have already been deprived of reservation
benefits. By the adoption of such a procedure, meritorious backward
class candidates who could have had the opportunity of getting selected
in the recruitment to the services under the State as well as in admission
to educational institutions including professional colleges are likely to
lose the benefit of reservation. From among the left out candidates in the
backward classes, after the application of creamy layer, it is very likely
that those candidates may not possess the necessary and requisite
qualification either for selection for the services under the State or for
admission in educational institutions including professional colleges
thereby making it possible that the reservation quota for the intended
backward classes may not get filled up. If such a situation arises, it goes
without saying that though reservation benefits had been conferred upon
the backward classes, such reservation benefits are unable to be availed
of in full measure by the backward classes. This sort of a situation had
been created in the Central services by the application of creamy layer
even at the initial stage and that perhaps is the reason for the low
percentage of representation, say, in single digits, of OBC in the Central
services which is far below the permissible extent of reservation of 27%
conferred on OBC. With the practice as of now adopted by the Central
Government in the recruitment of personnel in their services, it is likely

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Justification of Reservation under


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that the entirety of reservation benefits conferred upon the OBC is likely
to be reduced to or watered down to NIL.
12.78

The Tamil Nadu Act 45 of 1994 has been in existence for 17 years since
1994. The quota intended for Backward Classes and Most Backward
Classes / Denotified Communities at 30% and 20% respectively has not
at all been availed of by them to the fullest extent, i.e., to say, they have
availed of such reservation not exceeding the reserved quota intended
for each of them, in the sense of not crossing the lakshman rekha.
Therefore, the need for application of creamy layer exclusion did not at
all arise so far in the State of Tamil Nadu. As such, the non-inclusion of
creamy layer in the Tamil Nadu Act 45 of 1994 is of no consequence.

12.79

In such circumstances, it cannot at all be stated that the Tamil Nadu Act
45 of 1994 prescribing reservation of 30% to Backward Classes, 20% to
Most Backward Classes / Denotified Communities, 18% to Scheduled
Castes and 1% to Scheduled Tribes suffers from any infirmity or lacuna
inasmuch as the data furnished by the Government fully justifies the
extent of reservation provided to various categories mentioned above.

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Justification of Reservation under


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13.

STRATEGY AND SYNERGY FOR INCLUSIVE GROWTH

13.1.

The Indian society is characterized by its highly rigid caste based


hierarchical structure, with its ascending order of privileges and
descending order of disabilities, with an overwhelming majority of it still
being backward socially, economically, educationally and politically.

13.2

The Varna system divided the society into four classes/groups the
Brahmana, the Vysya, the Kshatriya and the Shudra in the early Vedic
age as distinctly defined occupations. With the passage of time, the
Varna system turned into castes and the Indian society got divided into
numerous castes / sub-castes. Gradually, caste grew into a rigid and
complex system and thus also became the cause of social discrimination
and economic inequalities.

13.3

Caste is decided based on birth and can never be changed. While a


person can change his religion and his economic status can fluctuate,
his/her caste is permanent. The division of Indian society based on the
four Varnas which were initially considered to be interchangeable had
however become permanent in due course of time with graded status
among them. The Brahmanas occupied the top-most position in the
pyramid of caste system and the other varnas were in existence to
subserve the cause of the Brahmanas.
The last division of varnas is
the Shudra. The pernicious caste system in India which has no parallel
at the global level in any of the countries created equals and unequals in
the society. The unequal Shudras were denied the opportunity of
education and participation in public employment. The educational
opportunities and public employment were snatched away by the
Brahmanas sitting at the top most layer of the pyramid to the exclusion of
others and happened to occupy a dominant position.

13.4

Pandit Jawaharlal Nehru, the first Prime Minister while addressing the
Congress Parliamentary Party on 2nd November 1954 stated,
The conception and practice of caste embodied the aristocratic ideal and
was obviously opposed to democratic conceptions. It had its strong sense of
noblesse oblige provided people kept their hereditary stations and did not
challenge the established order. Indias success and achievements were on
the whole confined to the upper classes, those lower down in the scale had
very few chances and their opportunities were strictly limited. These upper
classes were not small limited groups but large in numbers and there was
also diffusion of power, authority and influence. Hence, they carried on
successfully for a very long time. But the ultimate weakness and failing of
the caste system and the Indian social structure were such that they

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Justification of Reservation under


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degraded a mass of human beings and gave them no opportunities to get


out of that condition educationally, culturally or economically. That
degradation brought the deterioration all along the line including in its scope
even the upper classes. It led to the petrification which became a dominant
feature of Indias economy and life.

13.5

It cannot at all be stated that the Indian Constitution does not recognize
caste at all. As a matter of fact, it does recognize caste and reference to
caste has been made in so many provisions of the Constitution though
caste is not defined. There is no provision traceable to the Constitution
on abolition of caste. Of course, there is a provision in Article 17 with
regard to abolition of untouchability. Untouchability practised in any
form, it is said, is prohibited and is punishable. Just like that, there is no
provision in the Constitution regarding abolition of caste. Such being the
case, the implementing authorities of the Constitution sitting at the top of
the corridors of power proclaim that the Constitutional ethos is for the
abolition of caste. Reservation based on caste, if allowed to be followed,
is likely to perpetuate caste system in India. This sort of an observation
made by them is unable to be digested. Hinduism de hors caste will
once and for all get deleted from the classification of religions. So long
as Hinduism is there, one shudders to think of abolition of caste in India.

13.6

The Indian Constitution is neither leading towards capitalism nor


communism but occupies a middle position of establishing a social order
preventing the concentration of wealth in a few hands and creating a
level playing field by persistently following the egalitarianism. Many
social ideals are incorporated right from the Preamble, Directive
Principles of State Policy, Fundamental Rights and other provisions of
the Constitution. The policy of reservation to backward classes and
downtrodden sections of the society is intended to bring them up to the
level playing field by adoption of the policy of positive discrimination,
which is not at all considered to be discrimination by these provisions of
the Constitution. The implementing authorities of the Constitution in this
country buried social justice fathom deep by the interpretative analogy
adopted by them. The founding fathers of the Constitution classified
certain rights as justiciable as fundamental rights under Part III and
certain other rights as non-justiciable adumbrated under Part IV Directive
Principles of State Policy.
Notwithstanding such division, the
implementing authorities of the Constitution made a further division of
certain inalienable basic human rights included as fundamental rights
under Chapter III of the Constitution by the founding fathers by dissecting
and bisecting Articles 15 and 16 and excluded clause (4) of Art.15 as
well as clause (4) of Art.16 from the purview of justiciable fundamental
rights and declared them as enabling rights (non-justiciable) with an
ulterior design of putting a spoke in the inclusive growth of this country
skillfully and dexterously in an invisible-visible fashion utilizing the
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technique of Constitutional interpretation. A cursory perusal of Art.15(4)


and Art.16(4) will indicate the complete absence of any provision for the
application of creamy layer in the implementation of policy of reservation.
Nonetheless, the judiciary found the creamy layer concept as having
been adumbrated in those Articles. Things which were not there in the
provisions of the Constitution, the judiciary would say, as things having
been provided therein. In the same manner, what they would say is that
with respect to matters which have been expressly provided for in the
provisions of the Constitution, they would condescend to descend and
say that they were either not there or that they are having the power to
override the express and explicit provisions or to spell out something
which is not there by the invocation of the plenary power under Art.142.
A perusal of Art.142 indicates no such inherent power is traceable to
such an authority. It is only by way of interpretative analogy they say that
they get such a power to themselves. Similarly, the judiciary spelt out by
interpretation of Art.368, which contains the provisions relating to the
amendment of the Constitution by the Constituent Assembly, that the
Constituent Assembly of Parliament has no power at all to amend a
particular provision of the Constitution which, they say, as a basic feature
or structure of the Constitution.
13.7

The basic structure theory has been found out by the judiciary from the
German Constitution. A reference has already been made in a detailed
fashion elsewhere in this Report. Clause (1) of Article 1 of the German
Constitution provides that human dignity and self-respect is inviolable.
To respect and protect such a right is the duty of the Government and
one and all without any exclusion. Thus, it has been provided in the
German Constitution that human dignity and self-respect is a basic
human right recognized as a fundamental right which is inviolable. There
are other basic human rights recognized as fundamental rights under
Articles 2 to 19 in the German Constitution.

13.8

The Indian Constitution does not at all say that the incorporation of any
provision therein with respect to human dignity and self-respect which
are inviolable human rights. No doubt, there were very many basic
human rights adumbrated as fundamental rights in the Indian
Constitution. The judiciary construed certain basic fundamental rights,
incorporated as fundamental rights in the Constitution as inviolable,
inalienable and unchangeable by way of amendment of the Constitution.
The interpretative analogies as adopted by the judiciary with regard to
various provisions of the Constitution, it appears, has buried social
justice fathom deep to curtail the rights of the disadvantaged society
which forms part and parcel of the three-fourth of the total population of
this country. This sort of interpretation as projected by the judiciary
stands in the way by creating obstacles in the process of inclusive growth
of India.
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13.9

Inclusive growth is a broad concept covering economic, social and


cultural aspects of development. It is often used interchangeably with a
suite of other terms, including broad-based growth, shared growth and
pro-poor growth. A growth, which is, broad-based across sectors, and
inclusive of the large part of the countrys poor, disadvantaged, deprived
and excluded sections of citizens. Inclusive growth strategy suggests
that people of all sections and regions get an opportunity to participate in
the growth process which implies engendering the policy design that
includes the people who get excluded in normal course as also to make
a variety of provisions and services accessible to all sections including
those who got excluded so far. These are sections and regions which
have remained relatively backward.

13.10

Constitution is a mother document depicting the nature of the polity to be


established, policies and programmes to be followed and all such
matters related to the governance of the country. Once a policy matter is
decided and incorporated as such in the Constitution by way of an
amendment, the question that arises for consideration in such an
eventuality is as to whether the power of judicial review can be invoked
by the judiciary in such circumstances? The answer is an emphatic No.
For inclusive growth to be nurtured and developed, the power of judicial
review, relatable to the amendment of the Constitution must not be
vested with the judiciary. The judicial review may be allowed to continue
so far as relatable to enactments made by the Parliament and the
Legislatures of the States to test their Constitutional validity, in the sense
that whether such enactments have been enacted in consonance with
the provisions of the Constitution.

13.11

So long as Hinduism is there, castes will ever persist, inasmuch as both


are intertwined with each other in such a way that the one cannot survive
without the other. Such being the case, the policy of reservation has to
continue for quite a long period until a level playing field is achieved
among all the castes and communities in India. Such being the case, the
State must have to announce a long term plan of continuing the
reservation policy. In such circumstances, it would be better to use the
Information Technology and gather the latest data on caste-wise
population, their educational attainment, occupational achievements,
wealth etc. and present this information to the nation for a well-informed
and well-debated policy decision.

13.12

The Indian Constitution, in a nutshell, has been a social document and


the matter of reservation has to be considered as a key to social
reconciliation and power sharing.

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13.13

The original Constitution contained very many provisions to foster and


develop social justice and the provisions so adumbrated therein had
become inoperative by the Constitutional interpretative analogy adopted
by the courts of superior jurisdiction of this country. Therefore, a relook
and review of those decisions that emerged from the courts of superior
jurisdiction is called for in the interest of the Nation in order to foster
inclusive growth of India.

13.14

The Constitutional provisions as now in existence and the judicial


pronouncements by the courts of superior jurisdiction relatable to
reservation require a drastic change for a better and faster inclusive
growth of the Indian society. The present Constitutional provisions
recognize reservation for BC, SC and ST only in the matter of admission
to educational institutions and professional colleges as well as in the
matter of appointments in the services under the State and the rest of the
citizens of the country are left in the lurch for whatever be the reason. It
does not appear to be a sound phenomenon or policy to be pursued in a
democracy. The goods and services available to a society must be
shared equally proportionate to the population of all the categories such
as Scheduled Castes, Scheduled Tribes, Backward Classes and the rest
of the citizens. This sort of a proportionate sharing is necessary in a
society like India considering the fact that the population of the country
includes the Hindus who form a majority therein with divisions of graded
status because of the practising of pernicious caste system for
thousands of years and there is no plausibility or possibility of eradication
of such caste system and other sections of the society comprising of
Muslims and Christian minorities and others whose comparative strength
of population is far less to Hindus who should also be considered to
share the goods and services in equal proportion to their population
without any discrimination whatever as citizens of this country.

13.15

India is divided with graded status. Further, the amenities and facilities
available are not at all made available in equal measure to one and all of
the citizens to compete in the race of life. In such state of affairs, the
equals and the unequals cannot be allowed to compete with each other
on equal footing. Until the people with graded status are brought to a
level playing field, the application of the principle of formal equality
cannot at all be followed. If proportional equality principle is followed,
space will be provided for the unequals and the equals to compete
equally in the race of life.

13.16

Formal equality is known as the Jeffersonian Concept of Equality; it


stipulates that each individual is to be protected in the exercise of his civil
liberties so that each is afforded equal opportunity to fulfill his
capabilities. This concept leans in favour of liberty and tends to
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guarantee equality of opportunity, not the equality of achievement. This


form of equality concedes that human beings are diverse and unequal in
most respects and that all such differences are irrelevant for purposes of
distributing benefits and burdens among members of society. This
model seeks to treat men identically in public sector regardless of
inequalities in private situation.
13.17

Proportional equality is known as the Jacksonian Concept of Equality, it


postulates that it is not sufficient that law treats each person alike but the
law should afford to each individual all those opportunities of basic nature
which are important preconditions to the realization of the full value of
available liberties. People are equally entitled to all that facilitates their
development as rational persons. This concept of equality ensures, for
each individual, the existence of a broad class of external circumstances
that facilitate full development and expression of the capacities involved
in rational life, and which afford unrestricted access to available goods.

13.18

Thus, while formal equality guarantees equality of opportunity and leans


in favour of liberty, proportional equality tries to gain equality of
achievement which results in some infringement of liberty in order to
secure a maximum of equality of condition, without which it is argued that
opportunities cannot be equal. While formal equality has a negative or
no role for the state, proportional equality necessitates a positive role for
the government so that equality of conditions or results is produced.

13.19

Although the concept of proportional equality tilts in favour of equality, it


does not favour to eliminate liberty. The concept of proportional equality
is advocated by liberal democratic governments and writers who favour a
welfare state, contending that statutory equality is meaningless unless a
level playing field is provided.

13.20

There is also a need to distinguish between economic and social


inequality. Social inequality is the result of discrimination perpetuated by
institutional structures that over centuries have denied the possibility of a
reasonably human existence. This then leads to a deficit of cultural
capital which is the ability to use knowledge, gained from praxis and
contemplation, to both understand the world around us as well as
articulate a world view that defines our identity. All communities,
therefore, accumulate cultural capital.
But in hierarchical and
discriminatory societies such as ours, certain kinds of cultural capital are
privileged over others because certain groups had access to societys
accumulated knowledge through education that was earlier denied to the
untouchables and the other backward classes, the deprived, and use that
to both comprehend reality better and also learn how to leverage
knowledge as a mechanism of power.

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13.21

Proportional equality is nothing but equality of results. The application of


preferred or formal equality may result in inequality. Honble Mr.Justice
E.S.Venkataramaiah coined a new word result-oriented discrimination
in K.C.Vasanth Kumar vs. State of Karnataka [1985 Supp SCC 714].

13.22

Proportional equality principle has been adopted in many countries. The


adoption of proportional equality system in a country like India where the
pernicious caste system is practised, the goods and services will be
shared by all categories of people in equal measure in a fair and
reasonable manner creating no division among them. The application of
proportional equality principle may now be resorted to be explained by
taking into account the population basis of various categories of people
such as SC, ST, BC and the rest of the citizens. The population of
backward classes in the State of Tamil Nadu is now to the tune of 68%;
the SC comprise of 19% and the ST are 1%, all totalling to 88%. The
rest of the citizens who do not fall under the above categories works out
to 12%. The reservation may be arrived and provided for to all such
categories of people proportionate to their respective population both in
the matter of admission to educational institutions including professional
colleges and in the matter of appointment in the services under the State.
The result is, reservation may be provided to the tune of 68% for BC;
19% for ST, 1% for ST and the balance of 12% allocated to the rest of
the citizens. In providing such reservation, the quota for Open
Competition as now in existence in the reservation policy followed
deserves to be dispensed with. It is not as if the Constitution contains a
provision for Open Competition. It is only a judge-made law by the
Supreme Court. In providing for reservation to all such categories of
people proportionate to their respective population as stated earlier,
within each category, preference may be resorted to be given to such of
those people who are placed in an impecunious and indigent
circumstances i.e., in the lower strata in each category. After giving such
preference in each category, the remaining percentage of reservation
available in each category may be allowed to be enjoyed by the
remaining people within the same category.

13.23

To bring about a clear-cut idea of proportionate reservation, it may be


illustrated further by way of an example. For instance, for the category of
BC, 68% reservation is provided. From among the BC, such of those
persons who are placed in an impecunious and indigent situation may be
given preferential treatment over the others in the same category in the
matter of allocation of seats for admission in educational institutions
including professional colleges and for appointment to services under the
State. If the impecunious and indigent people from among the BC
getting preferential treatment to the tune of, say, 18%, the balance of
50% [i.e., 68% MINUS 18%] may be allocated for the rest of the BC only.
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Similarly, the allocation to each of the other categories such as SC, ST


and the rest of the citizens may be resorted to.
13.24

The greatest advantage in following this sort of a method of reservation


i.e., proportional reservation, is, each of the categories will enjoy the
benefits of reservation to the extent provided to each category without
that being encroached upon by the other categories. To put it otherwise,
there will not be any grievance from any of the categories for whom
reservation is provided, that their quota or reservation has been usurped
or availed of by the other category and this will ensure equal distribution
of reservation benefits to all the citizens of the country.

13.25

As to the dilution of excellence because of the policy of reservation being


followed, what the Government of Indias Oversight Committee on the
implementation of the new reservation policy in Higher Education said is
relevant and it is extracted as below:That expansion necessarily means dilution of excellence is clearly a myth
and is not substantiated by the actual ground experience of four decades of
implementation of OBC reservation. Four case studies, from Andhra
Pradesh, Karnataka, Kerala and Tamil Nadu show how they have
empowered the OBC in this manner. Their experience would put paid to the
argument that such a reservation would seriously impact quality. Our
experience in each state has shown that the members of the OBC can
bridge the gap between them and the general candidates, provided that they
are given the opportunity to compete on equal terms. The Committee feels
that the present opportunity would enable the country to make major strides
in building a just and inclusive society.

13.26

In a democracy, the State owes a duty to each and every citizen to


protect the interest of the individual citizens without any sort of
discrimination. In the adoption of proportional equality system of
reservation, such duty cast upon the State to protect each and every
individual without discrimination is carried out, out and out giving a
solidified satisfaction to each and every individual citizen, making each of
them feel as a proud citizen of the country. Every citizen will feel that he
is participating in each and every activity of governance of the country.
Patriotic fervor will be created, induced and got embedded in the minds
of the citizens of the country. That will lead to creation of a situation of
bringing the laws inaction, that is to say, law-in-books, into laws-inaction, i.e., law in practice.

13.27

No wonder it is, proportional equality system of reservation, if followed, it


is likely to create a level playing field among all sections of the society in
a break-neck speed bringing mirth, blithe and happiness to one and all in
the country, enabling them to live in peace, tranquility and free from
tension besides inclusive growth at break-neck speed.
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13.28

The State of Tamil Nadu which has been a pioneer in every field of
activity bringing succour and welfare to the people, may endeavour to put
into operation the proportional equality system of reservation suggested
above, by launching measures of initiation of discussion and deliberation
with the Union Government and the rest of the States, to effectuate the
necessary and requisite amendment to the Constitution besides
resorting to necessary and requisite legal remedies to review the
decisions of Supreme Court as has been pointed out elsewhere in the
report which created a stumbling block for the inclusive growth of India
to achieve the desired end.

[Justice Thiru M.S.JANARTHANAM]


CHAIRMAN

[V.ELUMALAI]
MEMBER

[Dr.V.M.MUTHUKUMAR]
MEMBER

[Dr.R.THANDAVAN]
MEMBER

[Prof.D.SUNDARAM]
MEMBER

[DR.S.P.THYAGARAJAN]
MEMBER

[KR.MURUGANANDAM]
MEMBER

[J.CHANDRAKUMAR]
Director of Backward Classes
Welfare
EX.OFFICIO MEMBER

[A.MOHAMMED ASLAM]
Commissioner of Most Backward
Classes and Denotified Communities
MEMBER-SECRETARY
(EX.OFFICIO)
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NOTE ON APPENDICES
Appendices contain two items of Statements.

Both the two items of

Statements were prepared by the Chairman of the Tamil Nadu Second Backward
Classes Commission.

The Statements relate to particulars of certain details

collected by the said Chairman regarding the populace of 5 Crores of people of


Tamil Nadu being put in various columns of the Statements for easy
understanding and analysis so as to identify the socially and educationally
backward classes of people from among all the citizens of the State. The entirety
of the criteria had been devised by the Chairman of the said Commission and the
Statements prepared on the basis of such criteria were circulated to the
Members.

The Members of the said Commission, after going through such materials
as furnished to them by the said Chairman, suggested certain minor deviations in
the criteria to be applied for identification of socially and educationally backward
classes of people. Besides, they also suggested for the existing list of Backward
Classes to be maintained without any omission.

The said Chairman, after taking into consideration the views of the
Members, prepared the Statements in the format suggested by the Members of
the said Commission. The figuring of two items of Statements in Appendices is
because of the deviations suggested by the Members.

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