A Project on Law

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INTRODUCTION

It is a settled fact that India, after the attainment of independence

established itself as a welfare state. The Indian Constitution envisaged an

egalitarian society wherein all Indian citizens have equality of status. But the

decade long practice of castism in India has caused a big road block in

establishing an egalitarian society. Many of the Indians were treated as outcasts

and were denied of every kind of opportunity in the society. Hence the Indian

society was divided into Upper Cast and Lower Cast. The lower starta of the

Indian society were socially, economically and educationally backward.

After the attainment of the independence, the makers of the Indian

Constitution inculcated many provisions into the Indian Constitution to erase

these inequalities and to establish an egalitarian society. Article 15(4) and 16(4)

were made part of the Indian Constitution justifying the efforts to establish an

egalitarian society. Here we discuss the relevance of these Articles, the views

taken by the Indian Judiciary in interpreting these provisions and its effect on

Indian society.


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HISTORIC BACKGROUND AND DEVELOPMENT OF RESERVATION

POLICY

Hindu society was divided into four varnas or classes. At the top of the

hierarchy were the Brahmins or the priests, followed by the Kshatriyas or

warriors. The Vaisya or the framers and artisans, constitute the third class. At the

bottom are the shudras, the class responsible for serving the three higher groups.

Finally the Untouchables who fall completely outside of this system. It is for this

reason that the untouchables have also been termed avarnas or no class.

Jati, or caste, is the second factor specifying rank in the Hindu social

hierarchy. A caste is a social group having membership confined to those who

are born of members and the members are forbidden by social law to marry

outside the group. Each one of such group has a special name by which it is

called. Jatis are more precise than the Varna system and can be divided further

into sub castes. Untouchables formed the lowest strata of this caste system.

Andre beteille defines caste as a small and named group of persons

characterized by endogamy, hereditary membership and a specific style of life

which sometimes includes the pursuit by tradition of a particular occupation and

is usually associated with a more or less distinct ritual status in a hierarchical

system.

Jatis in the three highest varnas in the hierarchy name Brahmins,Kshtariyas, and Vaisyas are considered twice born according to Hindu

scripture, meaning they are allowed to participate in Hindu ceremonies and are

considered to be pure. The untouchables were termed as polluting and their

presence in and around the other varnas were prevented. This concept of


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pollution versus purity governs the interaction between members of different

castes. The touch of an untouchable is considered defiling to an upper caster

Hindu. In southern India, where caste prejudice has been historically most

severe, even the sight of an untouchable was considered polluting. Untouchables

usually handled impure tasks such as work involving human waster and dead

animals. As a result, untouchables were barred from entering temples, drawing

water from upper castes wells, and all social interaction with upper caste

Hindus. These social rules were strictly imposed and violators were severely

punished and some times even killed.

Since the early 20thcentury, several terms have been used to describe the

untouchables. From the 1930s, they have also been known collectively as

Scheduled Castes, after the schedules appended to laws affecting their status.

In the 1970s, overwhelming majority in the nation that was still backward -

socially, economically, educationally, and politically. These victims of

entrenched backwardness comprise the present scheduled castes (SC),

scheduled tribes (ST) and other backward classes (OBC). Even though,

these classes are generically the "Backward Classes," the nature and

magnitude of their backwardness are not the same.

In the Indian context, reservations were introduced during the last

decades of the 19th century at a time when the subcontinent could be

broadly divided according to two main forms of governance - British India

and the 600 princely states. Some of these states were progressive andeager to modernize through the promotion of education and industry

and by maintaining unity among their own people. Mysore in south

India and Baroda and Kolhapur in western India took considerable

interest inawakening and advancement of the minorities and deprived sections


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of the society. The untouchables were asking for concessions and facilities

for their upliftment and had not organized themselves as a political force. It

was with the arrival prominent Dalit politician and lawyer, BhimraoRamji

Ambedkar that they acquired a leader of stature and education who

could make a political difference.

The British government released the Cabinet Mission Statement on May

16, 1946 and a set of proposals to guide the framing of a new

Indian constitution. The make-up of the Constituent Assembly reflected the

reality of what groups wield power in India then. Scheduled Caste delegates

did have some influence during the Assembly proceedings, with several

holding significant positions like Dr. B.R Ambedkar who was the chairman

of the drafting committee. From theoutset, the Constituent Assembly laid out

clearly itsobjectives andphilosophy forthenew constitution. Theframers main

goals were guarantees of equality, basic freedoms of expression, as

wellasadequate safeguards forminorities, backward classes andtribe's, and

depressed andclasses. TheConstitution ofIndiaseemstoassumethatatthe

timeofindependence allgroups ofIndian society werenotplaced onequal footing.

Asmall sectionofthesocietyhadadvanced under theBritish rule. Butalargenumber

ofpeople were suffering fromilliteracy, ignorance and poverty. Many

sectionsofthe society were cutofffromthemainstream of sociallife.Therefore,

theConstitution ofIndiawasasframed asnotonlytoremain aformal legaldocument-

b1f(alsotobecome asocial document withsocialandeconomic transformation

ofthecountryasitsgoal.

After achievingindependence fromtheBritish, India became ademocraticand

egalitarian nation. The framersofthe constitution hence made certain


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arrangements for the backward classes to allow them to enjoy ahumane

lifestyle and fortheir upliftment. Backward classeswere given reservation on

the Political, Educational and Employment spheres. The Constitution

directs that the state shall promote with special care the educational and

economic interests oftheweaker sections ofthepeople, inparticular, ofthe

Schedule Casts and Schedule Tribes, and shall protect them from social

injusticeand all forms of exploitation. The policyof reservation was to

extendto all public institutions, such as government-run educational

facilities. Laterintunewiththechanging needsnumerous amendments were

made intothe constitution like article 15(4),Article 16(4),Article 16(4A),

Article 16(4B), Article 335, and Article 320(4). These articles provide


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explicitly forreservation ineducational institutions andemployment for the

backward classes andtheauthority ofthestatetomakeanyrequired changes

withtimeasrequired.

CONCEPT OFRESERVATION ARTICLE 15(4)AND16(4)

Reservations as aconcept is very vide. Itcan begeneralized as an anti

povertymeasure. Itisanaffirmative actiontoundotheinjustice doneinthe past to

aparticular group or community, Article 15(4) and 16(4) of the

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,

Indian Constitutionprovides fop-reservation forsocially and educationally

backward classforeducation andpublic employment. Theverybasisofthis

provisions lies onthe attainment ofmuch cherished concept ofegalitarian

society. The protective discrimination offered by Article 15(4) and 16(4)

was intended touplift socially and educationally backward citizens tothe

level attained by others. As stated by Justice ChinappaReddy in K.C.

VasanthKumar V.State ofKarnataka (A.I.R 1985 SC 1495) that "Several

bridges have to be erected, sothat they may cross the Rubicon. Professional

educationandemployment underthestatearethought tobetwo such bridges.

Hence the special provision for advancement and for reservation

underArticle 15(4)and16(4)."


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Article 15prohibits discretion onthe ground ofreligion, race, casts, and

placeofbirth. Article 15(4)statesthat, "Nothing inthisarticle orinclause

(2)ofArticle 29shallprevent thestatefrom making anyspecialprovision for the

advancement of any socially or educationally backward class of citizens

orfor theschedule castortribe."


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Article 16 providesfor equality of opportunity in public employment.

Article 16(4)statesthat, "Nothing inthisarticleshallprevent thestate from

making anyprovision for thereservation ofappointments orposts infavor

ofany backward class ofcitizens which, intheopinion oftheState, isnot

adequately represented intheservice underthestate."

Article 15asoriginally enacted contained onlythreesubclauses. Subclause

(4)wasinserted bytheConstitution (1stAmendment) Act, 1951toundothe harm

done by the decision of the Supreme Court inState ofM adras V.

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,

Champak amDorairajan(A.I.R-"'i951 SC 226).This case was against the

communal G.O followed by the state of Madras in giving admission to

Medical and Engineering Colleges under the State of Madras. This G.O

which prevailed before the commencement of the constitution, the seats

were allotted on communal basis to Brahmins, Non-Brahmins, Backward

Hindus,Harijans,AngloIndians&IndianChristiansand Muslims.Since

commencement of theconstitution thepetitioner challenged thesaidG.Oas

violativeofhisfundamental rightguaranteed underArticle 15(1)and29(2). The

Supreme Court found the communal G.O as violativeof the

fundamental right guaranteedunder Article 29(2) of the constitution and

heldtobevoidunderArticle 13oftheconstitution.


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Thiswasablowtothepolicy ofprotective discrimination andupliftmentof

thesocially andeducationally backward. TheGovernment swiftlyreactedto this

situation andthe Constitution wasamended bythe (First Amendment) Act

1951byinserting Clause (4)underArticle 15which cameintoforceon

is"June 1951.Theintention ofthe 1stAmendment wastobringArticle 15


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andArticle 29inlinewitharticle 16(4)which hadprovided forreservation

toBackward Classofcitizens.

CRITERIA FORDETERMINING THEBACKWARD

CLASS

One ofthe major questions before the government and the court was

regarding thebasisonwhichthebackward istobedetermined. Thequestion

waswhether castlabel should besufficient toidentify social andeconomic

backwardness orelsewhatisthetest?Anumber ofcommissions appointed for

this purpose accepted cast as the identifying criteria for determining

sociallyandeducationally backward, thecourtstookadifferent view. Some

ofthejudicial viewinthisregardisdiscussed below.

Language in Article 15(4)and16(4)clearlyindicatesthattheprotective

discrimination which cannot be struck down as discriminatory was to be

accorded to a class shown to be socially and educationally backward.

Nothing isstated inthese provisions thatsuchpreferential treatment canbegiven to the member of acast who may be presumed to be socially and

educationally backward. BalajiV.State ofMysore (A.I.R 1963SC649)in

whichthisissuewasdiscussed. Thiscasewasconcerned withthevalidity of

reservation made under Article 15(4) to medical colleges in Mysore and

Karnataka University upontherecommendations madebyDr.NaganGowda

committee appointed bythestategovernment. According tothescheme,the


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backward class were divided into two namely Backward and More

Backward and were allotted with 50% ofthe total seats. Apart fromthat

15%seats were reserved forschedule castand3%seats were reserved for

schedule tribe which amounted to atotal reservation of 68% ofthe seats.


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P.B.Gajendragadkar, J.speaking fortheConstitution Benchpointed outthat

indetermining the social backwardness ofgroups orclass ofcitizens caste

cannot bemade the sole ordominant test inthat behalf. Gajendragadkar, J

observed: "Social backwardness is onthe ultimate analysis the result of

poverty, toalarge extent. The classesofcitizens who aredeplorably poor

automatically become socially backward." The general attitude of the

Supreme Court was that the Constitution uses the word "class" and not

"caste". Therefore, although caste mightbe one ofthe relevant factors it

cannot bemade the soledetermining factor. While reservationonly onthe

basisofcastewouldbeviolativeofArticle 15(4)butinIndian circumstances

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~"

..

casteasawhole canbebackward andcangetthebenefit ofreservation on

that basis because caste is also a class of citizen. On theother hand, a

classification isnotvitiated onthegroundthatitdoesnotusecasteasoneof

thefactors.

In R. Chitralekhav. State of Mysore (A.I.R 1964 SC 1823) the

Government classified the socially and educationally backward classes on

thebasis ofeconomic condition andoccupation forthepurposes ofArticle

15(4).The court unanimously agreed that the constitution used the word

"class" and not "caste". Therefore under no circumstance a'class' canbe


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1equated to a 'caste' though the caste of an individual or a group of

individuals may beconsidered along with other relevant factors inputting

himinaparticular class.Aclassification isnotvitiated onthegroundthatit

doesnotusecasteasoneofthefactors.


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InTrilokiNathv.State ofJ&K, (A.I.R 1967SC 1283) byanorderof

theGovernment 50% vacancies inthe Stateservices were reserved forthe

Muslims, out of the remaining 50%, 40% were reserved for the Jammu

Hindus and 10%forthe Kashmiri Hindus. The petitioners contended that they

had been discriminated against solely onthe ground ofreligion and place

ofresidence. Junior officers were promoted over officers senior to

themontheground solelythatthejunior members belonged totheMuslim

community orthat they were Hindus belonging tothe Jammu Province of the

State ofJammu and Kashmir. The Statecontended that Muslims asa

community in the whole of the State of Jammu and Kashmir formed a

!

.

backward classofcitizens and..thiYwerenotadequately represented inthe

services of the State. SubbaRao, J. speakingfor the court held that

"backward class" is not used as synonymous with "backward caste" or

"backward community". Themembers ofanentire,casteorcommunity may

inthe social, economic and educational scale ofvalues atagiven timebe

backward andmayonthataccountbetreated asabackward class,butthatis not

because they are members ofacaste orcommunity, but because they form

aclass. Again he observed that for the purpose of Article 16(4) in

determining whether asection forms aclass, atest solely based oncaste,

community, race,religion, sex,descent,placeofbirthorresidence cannotbe

adopted,because itwould directly offendtheConstitution.

InstateofAndhra Pradesh v.U.S.V.Balram, (A.I.R 1972SC 1375)a


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1listofbackward classwhichprima facieappeared tohavebeenprepared on

thebasisofcastwasunder challenge. Itwasobserved byC.A.Vaidyalingam

J,"one thingisclearthat ifanentire castisasafact, found tobesocially


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andeducationally backward, their inclusion inthelistofbackward classby their

castname isnotviolativeofArticle 15(4).Itwasfurther heldthat"if after

collecting the necessary data, itisfound that the cast asawhole is socially and

educationally backward, inouropinion, the reservation made forsuchpersons

willhavetobeupheld notwithstanding thefactthatafew individuals inthat

group maybeboth socially andeducationally above the generalaverage.

InKcS.Jayasreev. State ofKerala(A.I.R 1976 SC 2381) the State

Government ordered thatmembers.,/o'ffamilies consisting ofEzhavaswhose

aggregate annual income wasrbelowRs. 6000/- would be entitledto

admission totheseatsreserved forsociallyandeducationally backward class

intheMBBS course was challenged. Thepetitioners contended thatthere

wasnoreasontoexclude aninsignificant partofthecommunity onthebasis

ofincome alone. The Statecontended thatthegovernment orderwasnotin

violation ofArticle 15(4)because theexpression 'backward class' inArticle

15(4) is notused as synonymous with backward caste or backward

community. The Courtaccepted the contention of the State. Therefore

neither castenorpoverty alone canbethecriteria though both arerelevant

factorsindeciding thebackwardness ofaclass.

In K.C.VasanthKumar v.StateofKarnataka (Ad.R1985 SC 1495)

thecourtwhilegiving guidelines totheproposed commission appointed for

examining the question of affording better employment and education to

Schedule Cast, Schedule Tribe and Backward Class, opined in favour of

secular criteriafordetermination ofsocial backwardness inplace ofcaste

"


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criteria contendingthat castecriteria didnotinclude thatsection ofpersons


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who didnot follow caste criteria. They further contended that caste based

reservations helped only the well-off sections of that caste getting the

advantage of reservation. On theother hand, some of the judges like

ChinnappaReddy,J.werenotinfavoroftotalexclusion ofcastecriteria.

INIndraSawhneyv. Union of India (AIR 1993 SC 477) commonly known

as MandalCase, the petitioners challenged the validity of 27% reservation

extended to socially and Educationally Backward Class of citizens. The

majority relying on the Constituent Assembly debates held that,intheIndian

context classisusedasasocialclassandnotasaclassin

the Marxistsense of the term. In Indiaespecially in rural areas caste-

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,;?

/'

occupation-povertyisanever-present reality.Hence acastecanbeandquite

often isa social class in India. If it is socially backward it would be a

backward class forthe purposes ofArticle 16(4). Sawant, J.held that the

backward class of citizens referred to in Article 16(4) is the socially

backward classofcitizens whoseeducational andeconomic backwardness is

onacco~ntoftheir social backwardness. Acastebyitselfmayconstitute a class.

However, this view wasnot supported byThommen, KuldeepSingh

andSahai,JJandinsisted oneducational socialandeconomic backwardness.

Thediscussion inthe foregoing paragraph give abrief idea ofthejudicial

viewuponthequestion astowhether theword "class" inArticle 15(4)and

16(4) and"cast" means the same. Since the Schedule Cast and Schedule


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Tribeareinthelowest rung oftheladderanypreferential treatment intheir favor

met with less judicial resistance. In case of the Socially and

Educationally Backward Classofcitizens thecast, itstraditional functions,

itsposition inrelation touppercastsbythestandards ofpurityandpollution,


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theiroccupation aretobelookedintoandifthoseaspects aresatisfactory the

castmustbelabeled associally andeducationally backward.

InE.V.Chinnaiahv.state of Andhra Pradesh, [(2005)1 SCC 394] the

validity ofAndhra Pradesh Schedule Cast (RationalisationofReservation)

Act2000 was challenged which classified the casts inthe presidential list into

four groups in accordance with the degree of backwardness. The. Supreme

Court held that the members of schedule cast form a class by themselves and

are of a homogeneous group and hence any further sub classification would

be impermissible while applying the principles of reservation.

Hence itcanbe seen that there isonly athin line between the concept of

classandcast.Itcanbequiet oftenseenasoverlapping. Hence this debate

willbeanongoingone.

Nature andDegree ofbackwardness underArticle 15(4)and16(4)

Article 15(4) providesfor reservation for socially or educationally

backward classofcitizens orfortheschedule castortribewhere asArticle

16(4) providesreservation for Backward Class. So there is an obvious


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question whether theexpression backward classofcitizens inArticle 16(4) is

same as the expression socially and educationally backward class of

citizens inArticle 15(4).Nowlet's examinesomeofthejudicial viewinthis area.


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InJankiPrasad Parimoov.State ofJ& K, (A.I.R 1973 SC 930) the Supreme

Courtwhile dealing withtheissueofpromotion ofteachers tothe post ofHead

Master or Tehsil Education officer who were reverted asa . result of the

decision in TrilokNath'scase, held that the expression backward

classofcitizens inArticle 16(4)issameastheexpression socially and educationally

backward class of citizens inArticle 15(4). In orderto qualifyforbeingcalled

a'backward classcitizen' hemustbeamemberofa socially and educationally

backward class. Itis social and educational backwardness ofaclass which

ismaterial forthe purpose ofboth Article

15(4)and16(4).

InVasanthKumar v.State ofKarnataka, (A.I.R 1985SC1495)thecourt

while giving guidelines to the proposed commission appointed for

examining the question of affording better employment and education to

Schedule Cast,Schedule TribeandBackward Class,tookasimilarviewthat

...

thebackward class ofcitizen referred toinArticle 16(4),despite the short

description, arethesameas thesociallyandeducationally backward classof

citizens referred to in article 15(4).Article 16(4) furtherrequires that the

backward classisnotadequately represented inserviceunderthestate.

However, thisviewwasrejected inthecaseofI ndraSawhneyv.Union

ofIndia (AIR1993SC477)anditwasheldthatidentification ofbackward class

can be done with reference to cast along with other occupational groups,

communities andclasses. Thecourt further went ontoobserve that the


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backwardness under Article 16(4) is wider than under Article 15(4).

Certain classes which maynotqualify asbackward underArticle 15(4)may

qualify assuchunder Article 16(4).According toSawant, J."aclasswhich


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is notsociallyandeducationally backwardthougheconomically oreven

educationally backward isnot abackward classforthepurposes ofArticle

16(4), becausethe purpose of reservations under Article 16(4) is not

alleviation ofpoverty buttogivesuchclassesanadequate shareinpower."

The degree of backwardness was also an important aspect to identify

whether aparticular classwaseligibletobetermed asabackward class.

Itwasheld inJankiPrasadParimoov.State ofJ& K, (A.I.R 1973SC

930)thatthedegree ofbackward....

essofthebackward classandsociallyand

educationally backward class of citizens shall be comparable to that of

Scheduled Castes and Scheduled Tribes who are standing examples of

backwardness, socially andeducationally. Similar viewswere expressed in

K.S.Jayasreev.State ofKerala(A.I.R1976SC2381).

Ins.c.VasanthKumarv.State of Karnataka, (A.I.R 1985 SC 1495)

Chadrachud, C.J. observed that, "In so far as the backward class are

concerned, twotestsaretobeconjunctively applied foridentifying themfor the

purpose of reservation in employment and education: One that they


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shouldbecomparable totheSchedule CastandSchedule Tribeinthematter

oftheirbackwardness; andtwo,theyshould satisfythemeanstestsuchasa state

government may lay down in the context of prevailing economic

conditions."


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.InIndraSawhneyv.Union ofIndia, (AIR 1993SC477)majorityheld

thatthebackwardness oftheotherbackward classesneednotbecomparable

tothebackwardness oftheScheduled CastesandScheduled Tribes.

Extent ofreservation

Thequestion ofextend ofreservation firstaroseinM.R. Balajiv.State of Mysore

(A.I.R 1963SC649).Inthiscasethebackward classweredivided intotwonamely

Backward andMo .Backward andwereallotted with50% ofthetotalseats.Apart

fromthat 15%seatswerereserved forschedule cast and 3%seats were reserved

for schedule tribe which amounted to atotal reservation

of68%oftheseatstomedicalcolleges inMysore andKamataka University. This

was struck down as excessive and unconstitutional. Gajendragadkar,

J.observed thatspecialprovision shouldbelessthan50per cent,howmuch

lesswould depend ontherelevant prevailing circumstances ofeachcase.

However thecaution against excess reservation was firstpointed outin

G.M.,Southern Rly. v.Rangachari(A.I.R 1962 SC36) where initwas appealed

against theorderofthemadrasHighCourtrestraining theRailway

Boardfromgiving effecttothecircularreserving selection posttoSchedule Cast


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and Schedule Tribe inwhich appointment can be done onlythrough

promotion. Even thoughquestion ofextent ofreservation wasnot directly

involved inRangacharicase.Gajendragadkar, J.saidthatreservation under

Article 16(4)isintended merelytogiveadequate representation tobackward

communities. Itcannot beused for creating monopolies or for unduly or


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illegitimatelydisturbing the legitimate interests of other employees.

Wanchoo, J.opined thatreserving afixpercentage ofseats everyyearmay

takealongtimebefore inadequacy ofrepresentation isovercome, therefore the

Government can decide toreserve afixed number ofposts the andtill

thoseposts arefilledupbythebackward classes allappointments willgoto

themiftheyfulfilltheminimum qualification. Oncethisnumber isreached

theGovernment isdeprived ofitspowertomakefurtherreservations.

The idea given by Wanchoo, J.did not work out inpractice because most

of the time even for limited number of reservations, every year

qualified backwardclass candidates-were notavailable. This compelledthe

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.//

government toadopt carry-forward rulewhich came inconflict withruling in

Balaji'scase. In cases where the availability of reserved category

candidates islessthanthevacancies setasideforthem,theGovernment has to

adopt either ofthe two alternatives i.e.to provide for carrying onthe

unfulfilled vacancies forthenextyearornexttothenextyear,ortoprovide for

filling of the vacancies from the general quota candidates and carry

forwardthe.unfillcdpostsbybackward classestothenextyearquota.

Buttheproblem ariseswheninaparticular yearduetocarryforwardrule more

than 50% of vacancies are reserved. In T.Devadasanv. Unionof India (AIR

1964 SC 179) this was the issue. Union Public Service Commission

hadprovided for17-1/2%reservation forScheduled Castesand Scheduled

Tribes.Incaseofnon-availability ofreserved category candidates inaparticular


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17yearthepostshadtobefilledbygeneral category candidates andthenumber

ofsuchvacancies weretobecarried forward tobefilledby thereserved category

candidate nextyear.Duetothisruleofcarryforward


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reservation inaparticular yearamounted to65%ofthetotalvacancies. The

petitioner contended that reservationwas excessive which destroyed his

rightunderArticle 16(1)andArticle 14.Thecourtonthebasisofdecision

inBalajicaseheldthereservation excessive and,therefore, unconstitutional. It

further statedthat the guarantee ofequality under Article 16(1)istoeach

individual citizenandtoappointments toanyofficeundertheState.Itmeans that

onevery occasion forrecruitment theStateshould seethat allcitizens are treated

equally. In orderto effectuate the guarantee each year of recruitment

willhavetobeconsidered byitself.Thus,majority differedfrom

Wanchoo's, J. decisioninRangacharicase holding that a cent per cent

/"

reservation inaparticular year.-ouldbeunconstitutional inview ofBalaji

decision

.

SubbaRao, J. gave dissentingjudgment. He relied on Wanchoo's, J.

judgment inRangacharicase and held that Article 16(4) provides for

adequate representation taking into consideration entire cadre strength.

According tohim,ifitiswithin thepower oftheStatetomakereservations

thenreservation madeinoneselection orspreadovermanyselection isonly

aconvenient method ofimplementing theprovision ofreservation. Unless it is

established that an unreasonably disproportionate part of the cadre

strength is filled up with the said castes and tribes, it is not possible to

contend that the provision is not one of reservation but amounts to an

extinction ofthefundamental right.


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InState ofKerala v.N.M. Thomas (A.I.R 176SC490) under theKerala

StateandSubordinate Services Rules, 1950certain relaxation wasgivento

Scheduled CasteandScheduled Tribecandidates passing departmental tests


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forpromotions. Forpromotion toupper division clerks fromlowerdivision

clerksthecriteria ofseniority-cum-merit wasadopted. Duetorelaxation in

meritqualification in 1972,34outof51vacancies inupper division clerks went

to Scheduled Caste candidates. Itappeared thatthe 34 members of

SC/SThadbecome seniormostinthelowergrade.TheHighCourtquashed the

promotionson the ground that itwas excessive. The SupremeCourt upheld

thepromotions. Ray,C.J.heldthatthepromotions madeinservices asawhole

isnowhere near50%ofthetotalnumber oftheposts. Thus,the majoritydiffered

fromtherulingofthecourtin Devadasancasebasically on the ground that the

strength ofthe cadre asawhole should betaken into account.

InIndraSawhneyv.Union ofIndia (AIR 1993se477) themajority heldthat

50%ruleshould beapplied toeachyearotherwise itmayhappen

that(ifentirecadrestrength istakenasaunit)theopencompetition channel

getschoked forsomeyears andmeanwhile thegeneral category candidates

maybecome age barred and ineligible. The equality ofopportunity under

Article 16(1)is to each individual citizen while special provision under

Article 16(4)isforsocially disadvantaged classes. Both shouldbebalanced

andneither shouldbeallowedtoeclipsetheother.

However, againinR.K. Sabharwalv.State ofPunjab [(1995) 2see

745]whichwasacaseofpromotion andtheissueinthiscasewasoperation of

roaster system, the petitioners challenged the Punjab Service Of

Engineers Class IPWD (IB)Rules 1964wherein 16%outofthetotalpost which

is to be filled by promotion was reserved for Schedule cast and Backward

Class onthe basis ofa100point roster system which wastobe


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implemented inthe form of arunning account from year toyear toyear. Court

stated that entire cadre strength should be taken into account to determine

whether reservation uptotherequired limithasbeenreached. The

courtobserved thattheroster systemitselfwillensurethatthereisnoexcess

reservation. Withregard toruling inI ndraSawhneycasethatreservation in ayear

should not go beyond 50% the Court held that itapplied to initial

appointments..Insubstance the court saidthatpresuming that 100%ofthe

vacancies havebeen filledeachpostgetsmarked fortheparticular category

ofcandidate tobeappointed againstitandanysubsequent vacancy hastobe

filledby that category candidate." The Court was concerned with the

f

possibility thatreservation inentfrecadre may exceed 50% limit ifevery

yearhalfoftheseatsarereserved. Further thecourtpermitted carryforward

ofvacancies those are not filled bythe reserved group in ajust and fair

manner.

The Constitution(Eighty-first Amendment) Act, 2000 added Article

16(4B) whichin substance gives legislative assent to the judgment in

Sabharwalcase. Article 16(4B)reads asfollows "nothing inthis Article

shallprevent the state fromconsidering anyunfulfilled vacancies ofayear

which arereserved forbeing filled upinthat year inaccordance with any

provision forreservation madeunderclause (4)orclause (4A)asaseparate class

ofvacancies tobefilledupinanysucceeding year oryears andsuch


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19

classofvacancies shallnotbeconsidered together withthevacancies ofthe

yearinwhichtheyarebeing filledupfordetermining theceiling offiftyper

centreservation ontotalnumber ofvacancies ofthatyear."


35/81


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21

Concept ofcreamy layer

Although the Supreme Court has finally accepted that caste canbethe

determinant ofbackwardness yetittriedtostrikeabalance withthesecular

notion bybringing inthe concept ofCreamy layer. Views haveoften been

voiced inthecourt andoutside forskimming thecreamy layeramongst the


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21

protectedcommunities while giving them benefit under Article 15(4) or

16(4).In K.S. Jayasreev.State of Kerala (A.I.R 1976 SC 2381) the

Supreme Court validated the government order for providing reservation

benefits onlytothose members oftheEzhavacommunity whose aggregate

incomewasbelowRs6000perannum.

InIndraSawhneyv.Union ofIndia (AIR 1993SC477)alltheJudges except

Pandian, J.held that means test should be adopted to exclude the better off

individuals from the protected group for the purpose of reservation.

Kania, C.J.andVenkatachaliah, AhmadiandJeevanReddy, JJ.

held that the very concept ofaclass denotes anumber ofpersons having

,;

-

certaincommontraitswhich dist-ifi'guishthemfromtheothers.Inabackward

class under clause (4) of Article 16,if the connecting link is the social

backwardness itshould bethesameinagivenclass.Ifsomeofthemembers

arefartoo advanced socially the connecting thread between them andthe

remaining class snaps. Such exclusionbenefits the truly backward. They,

however, added that the basis of exclusion should not be only economic

unless economic advancement is sohigh that itnecessarily means social

advancement.

Thedifference ofopinion hasbeenonthequestion ofwhatshouldbethe

criteriafordetermining thecreamylayerwhether itshould bedecided onthe

basis ofeconomic well-being or social advancement should also betaken

into account. Sawant, J.held that ithas to bejudged on the basis ofthe social


38/81

21

capacities gained bythem to compete with the forward classes. So long

asthe individuals belonging tothe backward classes donot develop sufficient

capacities oftheir owntocompete withothers theycanhardlybe


39/81

classifiedas forward. Thommen, J. however, stressed on the economic

criteria. According to him it is not sufficient that the person termed as

backward issobyreason ofilliteracy, ignorance, social backwardness. If

despite these handicaps they have necessary financial strength to raise

themselves the Constitution does not extend the benefit of reservation to

them.

InE.V.Chinnaiahv.stateofAndhra Pradesh, [(2005) 1SCC394]the

validity ofAndhra Pradesh Schedule Cast (RationalisationofReservation)Act

2000 was challenged which classified the casts inthe presidential list

into fourgroups in accordance.

w-

j1h"thedegree ofbackwardness. Santosh

Hegde, 1.,observed that "We donot think that the principle laid down in

Indira SwahneyCase for sub classification of OBC can be applied as

precedent law for sub classifying or sub grouping schedule cast III

Presidential list because the very samejudgment has held that it is not

applicable toschedule cast."

InM.Nagarajv.Union ofIndia [(2006)8SCC212] theCourtwenton to

observe that the concept ofcreamy layer istobe observed even inthe

casesofschedule CastandSchedule Tribe.

Thus, we findthat although the Supreme Court has accepted that caste

canbethecriteria forgivingreservations; itstillmaintains thattheprovision is for

backward sections of the population who for the time being need

support.Although backwardnesscanbeidentified onthebasisofcastebutit

isnotthecasteassuchwhich isgivenproportionate representation. Itisthe

individuals comprising aclasswhoaresuffering because theyaremembers of a

socially, economically and educationally depressed class who need


40/81

support. Hence the concept ofcreamy layer, tries toexclude the advanced

sectionsofthepopulation fromgettingthebenefits ofprotective measures.

MERITORIOUS RESERVED CATEGORY CANDIDATES

AND GENERAL MERIT

InIndraSawhneyv.Union ofIndia (AIR 1993SC477) thechallenge was onthe

validity of27% reservationextended to socially and EducationallyBackward

Class ofcitizens. this was one ofthe question before theninejudge bench

Reddy, J. noted thatreservation under Article 16(4) do not

operateoncommunal ground. Therefore ifa member fromreserved category

gets selected ingeneral category, his selection willnot becounted

againstthequotalimitprovided tohisclass.

Similarly, inR.K. Sabharwalv.State ofPunjab, [(1995) 2SCC 745] the

Supreme Court held that while general category candidates are not

entitledtofillthereserved posts;reserved category candidates areentitledto

competeforthegeneral categoryposts.Thefactthatconsiderable numberof

members of backward class has been appointed/promoted against general

seatsintheStateservices maybearelevant factorfortheStateGovernment

toreviewthequestion ofcontinuing reservation forthesaidclass.

InRitesh.R.Sah V.Dr.Y.L.Yamul,[(1996) 3SCC 253]thepetitioners

challenged theadmission ofrespondents 5to36forMBBS andBDScourse on

the reservation seat even though they were eligible for admission on merit.

Because ofthis, the petitioners who belonged to the same category


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failedtogetanadmission. Herethecourtheldthat,astudent whoisentitled

tobeadmitted onthebasis ofmeritthough belonging toreserved category

cannot be considered against seat reserved for reserved category. Court

further held that, while areserved category candidate is entitled to take

admission onbasis ofhismerit,hewillhavetheoption totakeadmission in the

college where a specific number of seats are reserved for reserved

category butwhile computing thepercentage ofreservation hewilldeemed

tohave been admitted asan open category candidate and not asreserved

candidate.

RESERVATION

INPROMOTION

The question regarding the reservation promotion came up before the

court on a number of occasions. Article 16(4) statesthat reservation in

servicesmaybemade forbackward classofcitizens whoarenotadequatelyrepresented inservices. The issuewas related to legality ofreservation in

promotions and if at all such reservation was permissible, to what

extend.TheApexCourt expressednumerous opinion inthisregard ofwhich

afewaredelthereunder.

In G.M.Southern Rly.v.Rangachari(A.I.R 1962 SC36)where init was

appealed against the order ofthe madras High Court restraining the Railway


42/81

Board fromgiving effecttothecircular reserving selection postto Schedule

Cast and Schedule Tribe inwhich appointment canbedone only through

promotion itwas contended bythe respondent that Article 16(4) applied

only to initial appointments and not to promotions. Therefore, as

suchprovision forreservation inpromotion iscontravening Article 16(1).


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27

Gajendragadkar, J.held thatcondition precedent forapplication ofArticle

16(4)isinadequate representation whichmayrefertosizeaswellasvalues,

numbers aswellasthenature ofappointments soitinvolves notmerelythe

numerical test but alsothe qualitative oneand,therefore, reservations will

apply not only to initial appointments but to selection posts as well.

Wanchooand Ayyangar, n.however, dissented and held that adequate

representation connotes onlyquantitative representation andnotqualitative.However the order of the madras High Court was set aside as

Gajendragadkar, SankarDasGupta n.,were in favour of reservation in

promotion

.

InState ofPunjab v.HiraLalthePunjab Government passed anorder

providing for reservation. The order provided that the first block of 10

vacancies would be reserved for Scheduled Castes/Tribes and Backward

Classes.Backward classofficials weretobeconsidered onlyifnoofficialof

Scheduled Caste and Scheduled Tribewasavailable. TheHigh Court ruled that

reservation in promotion was valid in view of the Supreme Court judgment

inG.M.Southern Rly. v.Rangachari(A.I.R 1962SC36)butthe Government

hasviolated Article 16(1)byreserving thefirstcutofagroup of 10posts for the

Scheduled Castes, Scheduled Tribes and Backward Classes. However, the

Supreme Court rejected the argument ofcounsel of therespondents that

reservation inpromotion would result ininjustice asa person getting the

benefit ofthe reservation mayjump over the heads of several ofhis seniors not


44/81

27onlyinhisowngrade but even inhigher grades. The Court observed itis an

inevitable consequence of any reservation of poststhatjunior officers

areallowed totakeamarch overtheir seniors but theConstitution-makers

thought fitintheinterests ofthesociety asawhole


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27

.-

thatthebackward classofcitizens ofthiscountry should beafforded certain

benefits overothers.

InState ofKerala v.N.M. Thomas (A.I.R 176 SC 490) also special

provision forreservation inpromotion was held tobevalid. However the

Supreme Court observed that care has been taken that efficiency is not

impaired.

The questionwas again rai~$d InI ndraSawhneyv. Union of India

(AIR1993SC477)theSupremeCourtunanimously heldthatreservation ofappointments orposts underArticle 16(4)isconfined toinitial appointment

onlyandcannot extend toproviding reservation inthematter ofpromotion.

Itwascontended thatproviding reservation inpromotion multiplies therisk to

efficiency in administration. Itwould alsoresult in the creation of a

permanent separate category apart from the mainstream - a vertical

division of the administrative apparatus. Efficiency would be affectedadversely inatwofold way.First,therewouldnotbeanywilltocompeteby

thebackward classmembers andsecondly, itwould causeheart-burning and

frustration inthenon-favored groupresulting inlossofefficiency.

However, Parliament amended the Constitution and added Article

16(4A)whichgivesvalidity toreservation inpromotions doneforScheduled


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27Castes andScheduled Tribes. According toArticle 16(4A)"Nothing inthis

article shallprevent the Statefrommaking anyprovision forreservation in

matters ofpromotion toanyclassorclassesofposts intheserviceunderthe

Stateinfavor ofSchedule Castorschedule Tribe which, inthe opinion of

thestate,arenotadequately represented intheserviceundertheState."


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27

InR.K.Sabharwalv.State ofPunjab [(1995)2SCC 745] itheldthat

thereservation inpromotion wasvalid asitwasdoneonthebasis ofa100 point

roster system which ensured that the reservation with in the 50% ceiling

limit. Moreover each post gets marked for the category of the candidate to

be appointed against itand any subsequent vacancy isto be filledbythat

category candidate alone.Thecourtheldthat theentire cadre strength should

betaken intoaccount todetermine whether thereservation uptotherequired

limithasbeenreached.

/

'

InUnion ofIndia v.VirpaSingh Chouhan[(1995) 6SCC 684]the

mainquestionwasregardingthe consequential senioritygivenalongwith

promotion tothereserved candidates andtheconcept of"catch up"rulefirst

appeared. In the category of railway Guards there were four categories

namely Grade C,Grade B, Grade Aand Aspecial. 150/0 ofthe vacancies

werereserved forSchedule Castand7.5%werereserved forSchedule Tribe

ininitial appointment aswell asinpromotion. Promotion toAspecial was

madefromthecandidates ingradeAinwhichtherewasgeneral andSC/ST

candidates. The ChiefController promoted certain general candidates toA

Specialonadhocbasis. Latertheywerereverted andSC/STcandidates were

promoted. Thepetitioners contented that"catch up"rulewastobeadopted and

the seniority from the initial appointment was to be considered. The

courtheldthatitopentothestate,ifsoadvised, tosaythatwhiletheruleof


48/81

27reservation shallapplied, thecandidate promoted earlier byvirtue ofruleof

reservation/roster shall notbeentitle toseniority over seniors inthe feeder

category.


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29

InAjithsinghJanujuaV.State ofPunjab [(1996) 2SCC 715] alsothe

contaversywas over the consequential seniority given to the candidates

promoted through reservation against general category post inthe highergrade. Here the court observed that without "catch up" rule, giving

weightage to earlier promotion secured by roster point promoteewould

resultinreverse discrimination andwouldviolate equality underArticle 14,

15and16.

However inJagdishlalV.State ofHaryana [(1997)6see538] thethree-

~

judgebench took the view that under the general rule of service

e

-

jurisprudence relating toseniority, thedateofcontinuous officiationhasto

betakenintoaccount andifsotherosterpointpromoteesareentitled tothe

benefitofcontinuous officiation.

InAjithSing (II) V. State ofPunjab[(1999) 7see209, the limited question

was regarding the conflicting decision inVirpalsinghChouhan,

AjithSingh(I) and Jagithlal'scase. The courtoverruled thejudgment in

Jagithlal'scase.


50/81


51/81

29

class or classes of posts in the service under the state in favor of the

Schedule CastandSchedule Tribewhich intheopinion oftheStatearenot

adequately represented intheservicesundertheState."

InM.Nagarajv.union of India [(2006) 8SCC212] the constitutional

validity of the Constitution (Seventy seventh Amendment) Act 1995,

Constitution (Eighty FirstAmendment) Act2000,Constitution (EightyFifthAmendment) Act2001 waschallenged ontheground that itviolated ofthe

concept ofequality underArticle 14~oneofthebasicstructure oftheIndian

Constitution.Though the consrittit'"ionalbench upheld the validity of the

amendment stating that these wereonlyenabling provisions, thecourtheld that

the ceiling limit of 50%, concept of creamy layer, the compelling reasonsnamely backwardness andinadequacy ofrepresentation andoverall

administrative efficiency areallconstitutional requirements without which

thestructure ofequality ofopportunity inArticle 14 willcollapse andthese

concepts aretobeobserved whilemaking individual laws.

Hence theconflict regarding the reservation in promotion is still in

progress. The Supreme Court while disposing Nagaraj'sCaseheldthattheStatewhile making lawsforreservation shallobserve theguide linesgiven inthis

case. Soitisyet tobe seenthat how the individual state laws are

goingtobedeltbythecourt.


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31

RESERVATION, EFFICIENCY

ANDRELAXATION

Itcanbeseenthatthecompensatory discriminationgiveninfavourofthe

Schedule CastIScheduleTribe, Socially andEducationally Classofcitizens

wasoftenattacked ontheground ofmeritocracy. Itisalways contented that,

giving opportunity to the less meritorious candidates on the ground of

reservation will dilute the efficiency inthe public service. Moreover the

meritorious studentsandcandidates willbedenied admission asaresult of

reservation intheeducational institutions andpublic employment. Thishas

~

leadtoawidedissatisfaction am.

o-

ngtheupper class. Ontheotherhand,the

opposition ofmeritarianideacontends that,itisalwaysthedominant group

which imposesitsnotions ofmerit,therefore themerittests maynotbethe real

indicators ofaperson's merit. They contendthat there cannot beany objective

criteria ofmerit. Theviews andthinking process ofaperson can beinfluenced

bythe cultural group towhich hebelongs. Itcannot besaid

thatoneviewissuperior totheotherbecause there isnoscientific objective

criteria of knowledge. Therefore, different views should be given

representation ininstitutions topromote diversity which ishealthy forsocial

andpolitical lifeofthecountry.


53/81

31Indian constitution provides for merit inpublic service atthe same time

provides forrelaxation ofqualifying marksandstandards forSchedule Cast

andSchedule Tribe.ByConstitution (Eighty secondAmendment) Act,2000 a

proviso was inserted into Article 335 which reads as "Provided that

nothing inthis article shallprevent inmaking ofanyprovision infavor of the

members of the Schedule Cast and Schedule tribe for relaxation in


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32

qualifying marks inanyexamination orlowering ofstandards ofevaluation,

forreservation inmatter ofpromotion toanyclass orclasses ofservice or

postinconnection withtheaffairsofUnionorofaState."

Here wediscuss thejudicial view onquestion ofrelaxation given tothe

Schedule CastIScheduleTribe, SociallyandEducationally Classofcitizens.

InState ofKerala v.N.M. Thomas (A.I.R 176SC 490) under theKerala

StateandSubordinate Services Rules, 1950certain relaxation wasgivento

Scheduled CasteandScheduled Tribecandidates passing departmental tests

forpromotions. Forpromotion toupper division clerks fromlowerdivision

/

'

clerks thecriteria ofseniority-curfi-merit wasadopted. Duetorelaxation in

meritqualification in 1972,34outof51vacancies inupper division clerks went

to Scheduled Caste candidates. Itappeared that the 34 members of SC/ST

had become senior most inthe lower grade. Themajority heldthat the

relaxation of Rules which required a lower division clerk to pass a

departmental test with in a period of two years in the interest of the

employeesbelonging toScheduleCastandSchedule Tribewasnot

unconstitutional orillegal.

In Stateof Madhya Pradesh v. KumariNiveditaJain and Others,[


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(1981)4SCC296]theGovernment by anorder,removedtheminimum

qualification forSchedule CastandScheduleTribecandidates foradmission

tohemedical collages inMadhya Pradesh. Asaresult,thepetitioner losther

chance ofadmission, sincetheseatsnotfilledupbythe Schedule Castand

Schedule Tribe candidates would havegonetothegeneral merit candidates

asper Rule 9ofthe Rules forAdmission intothe Medical, Dentistry and

Ayurvedic Colleges in Madhya Pradesh. The petitionerchallenged the


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33

government orderasviolativeofArticle 14and 15oftheconstitution. High

Court allowedthepetition. Onappeal, the Supreme Court held that, inthe

absenceofanylawtothecontrary, it mustalsobeopentothegovernment to impose

suchconditions aswould makethereservation effective andwould benefit the

candidates belonging tothese categories forwhose benefit and welfare

thereservation havebeenmade. Suchrelaxation neithercanbesaid

tobeunreasonable, norconstitutes violation ofArticle 14or15.

InArtiGuptav.StateofPunjab, thePetitioners challenged theadmission to

Medical !DentalCollages. Asperthenotification acandidate hastoobtain

50%marks inentrance examinatieti' tosecure admission with anexception to

Schedule Cast and Schedule Tribe candidates who need to obtain only

35%marks. Sincethe seatsreserved forSchedule Castand Schedule Tribe

candidates werenotfilled,theGovernment madetheimpugned notification

reducing the qualifying marks from35%to25%.The SupremeCourt held

thatthe'Government iscompetent todosoandtheactionoftheGovernment

isnotarbitrary andfurther itisnothitbyRuleofEstoppel.

WHETHER RIGHTUNDER ARTICLE 15(4)&16(4)

FUNDAMENTAL RIGHT


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34

Everyprovision ofPartIII oftheIndianConstitution dosenotconfersa

fundamental right. Some ofthe provisions ofpart III arejust definitional,

others provide forthe effect ofthe fundamental rights onthe existing and

future laws, still others provide fortheenforcement andimplementation of the

fundamental rights, while some others provide exceptions to the


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34

fundamentalrights. Hence anair of doubt persists as to whether Article

15(4) and16(4) confer any fundamental right. The question of extent of

reservation is closely linked to the issue whether Article 16(4) is an

exception toArticle 16(1) orisArticle 16(4)anapplication ofArticle 16(1).

IfArticle 16(4)isanexception toArticle 16(1)then itneeds tobegiven a limited

application soasnottoeclipsethegeneral ruleinArticle 16(1).But ifitistaken

asanapplication toArticle 16(1),any amount ofreservation

couldbepermissible sinceitwould befurthering thegeneral ruleinArticle

16(1).

Article 15prohibits discretion onthe groundofreligion, race, casts, and

placeofbirth. Article 15(4)statesthat, "Nothing inthisarticle orinclause

(2)ofArticle 29shallprevent thestatefrom making anyspecialprovision for the

advancement of any socially or educationally backward class of citizens

orfor theschedule castortribe."

Article 16 providesfor equality of opportunity in public employment.

Article 16(4)statesthat, "Nothing inthisarticleshallprevent thestate from

making anyprovision for thereservation ofappointments orposts infavor


59/81

ofany backward class ofcitizens which, intheopinion oftheState, isnot

adequately represented intheservice underthestate."

Onaplain reading one islikely to formthe impression that clause (4)of Article

15isan exception to the rest ofthe provisions ofthat article and clause

(2)ofArticle 29and clause (4)ofArticle 16isanexception tothe

restoftheprovisions ofthatarticle.


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35

Initially theSupreme Court was alsounder the same impression. InM.R.

Balajiv.State ofMysore A.I.R 1963SC649),theApex court wasofthe

viewthatArticle 15(4)and 16(4)wereonlyenabling provisions andtheydo

notconfer anyfundamental rights norimpose anyconstitutional duty.This

impression continueduntil four out of sevenjudges, Ray, CJ. ,Matthew,

Krishna Iyer, FazalAli, Jl., opined in N.M.Thomasv. state of

Kerala(A.I.R 176SC490) thatArticle 16(4)wasnotanexception to16(1)

andthat itwasmerely anemphatic wayofstating thatreservation wasone

ofthemodesofachieving equality for-thebackward classofcitizens..

_

/

Thisviewwasmore emphatically reiterated inA.B.S.K Sanghv.Union of

India.(AIR 1981SC298) ChinnapaReddy, J.observed that "Article 16(4)

isnotinthenature ofanexception toArticle 16(1).Itisafacettoofarticle

16(1)which fosters and furthers the idea of equality of opportunity with

special reference to an under privileged and deprived class of citizens to

whom egalitede droit (formal or legal equality) is not egalitede fait(practical orfactual equality).

This view has been finally accepted by the court in Indira Swahiniv. Union

ofIndia.


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36

Allthe abovementioned judicial views speak about theposition ofArticle

16(4)asafundamental rightbutnothing saidabout Article 15(4).Itcanbe

seenthat,theexception thesiswasindeed propounded inacaseconcerning clause

(4)ofArticle 15.Moreover Article15dosenothave anyprovision corresponding

to clause (1) of Article 16 which guarantees equality of


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36

opportunity inpositive terms. Sothere isareasonable doubt astowhether

thisratioisapplicable toArticle 15(4)also.

Logically, thesameinterpretation mustapplytoclause(4)ofArticle 15also.

RightunderArticle 15,asinterpreted inthecontext ofArticle 14,isnotthe

righttouniform orequaltreatment. Itistherightthatequals aretobetreated

equallyandnotunequals. Soeverydifference oftreatment cannot besaidas

inconsistent withrighttoequality. Onlythatdifference oftreatment whichis

basedonlackofequal concern willbeinconsistent withrighttoequality. It

isobvious fromthe expression '..di's~riminateagainst' inArticle 15thatthe

....

State is not prohibited from treating people differently on the basis of

religion, race, cast, sex or place of birth, instead it is prohibited from

discriminating thecitizens onthesegrounds. Allthese factorsequally apply

toArticle 16(4).Whenitisobserved bythecourtthatArticle 16(4)isnotan

exception toArticle 16(1)but afacettoit,we cannot look foradifferent

treatment forArticle 15(4).Hence Article15(4)isasmuch afundamental

rightasArticle 16(4).

STATUS OFVARIOUS CLASSES


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Indian constitution has afforded reservation to socially and educationally

backward class ofcitizens to ensure their upliftment. This effortfromthe

sideoftheGovernment haspaidtoagreatextend. Thenumber ofsocially and

educationally backward class of citizens in public employment has

increased asaresult andalsotheir educational qualifications aswellasthe

standards haveincreased. Thishasleadtosomeunhealthy practicesinorder

toavailthebenefits ofreservation. Itisinteresting toseethat somepeople


64/81

37

have beentrying togetthebenefit accorded bylawtothemembers ofthe

Schedule Cast and Schedule Tribe bywayofchanging their casts through

conversation, reconversation, adoption, marriage, etc.

Conversatio

n

Thequestion astowhether aperson couldresorttochange ofcastbywayof

conversion andifsowhatistheimpactonhisstatushasbeendiscussed by thecourts

onseveral occasions. InKailas Sankarv.Maya Dei(AIR1984

SC600),theappellant's casewasthattherespondent whowasaChristian

-

".?/

/

bybirthcouldnotbetreated asSchedule castandtherefore herelection asa

member ofVidhanSabha fromaseatreserved forSchedule Castwastobe

declared as void. Here the respondent even though born as Christian to

Christian parents; her ancestors belonged to Kaliawhich was aschedule cast.

Here the question was, whether being born to Christian parents will restrict

the respondents from inheriting the cast to which her ancestors belonged

to.Thecourt opined that,"Where aperson belonging toschedule

castisconverted toChristianity orIslamthesame involves lossofthecast unless

thereligion towhich heisconverted isliberal enough topermit the


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37

converteestoretain the castorthefamily lawsbywhich hewasoriginally

governed. Where thereligion however dosesnot atallaccept orbelieve in

castsystemthelossofcastwouldbefinalandcomplete."

InSoosaiv.Union ofIndia (AIR1986SC733)thepetitioner converted to

Christianity from Adi-Dravidacommunity. In 1982the Tamil Nadu khadi

Village Industries Board allotted freebunkstothecobblers inthatarea.The

petitioner was sidelinedon the ground of his conversion. The petitioner


66/81

.'"

38

challengedtheGovernment Orderwhichwasmadeinconsonance to the

Constitution (SC)Order 1950which excluded persons whoprofess religionotherthanHinduism andSikhismfromavailingthebenefits of reservation as

violativeofarticle 14,15and25.Herethecourtdismissed thecontentions of

thepetitioner statingthattheprovisions intheConstitution (SC)Order 1950

isnotarbitrary sincethecastoppression isapartoftheHindu systemandit is not

sufficiently shown that the same disabilities and handicaps is not

sufferedwithinthenewly converted religion.

TheSupreme CourtinState ofKerala v.Chandramohan(2004 (1)KLT

.

1101(SC), whileconsidering tliequestion whether aperson onconversion

toanotherreligion could continue toremain amember ofthattribeheldthat

itwasaquestion offact andthemember ofthetribe despite hischange in

thereligion mayremain ofthattribeifhecontinues tofollowthetribaltraits

andcustoms.

Reconversatio

n

Asregardtothestatus ofreconverts, theSupreme Court inKailas Sankar


67/81

v.Maya Dei (AIR 1984 SC 600), was ofthe view that "The reconverts

mustexhibit aclearandgenuine intention togobacktohisoldfoldandopt

thecustom andpractice ofthesaidfoldwithout anyprotest frommembers ofhis

erstwhile cast, inorder tojudge this factor, itisnot necessary that

thereshouldbeadirectorconclusive period oftheexpression oftheviewofthecommunity oftheerstwhile castanditwontbesufficient compliance of this

condition if the exception or protest is lodged by the community


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39

member in which case the cast would revive on the reconversion ofthe

persontohisoldreligion."

InSoosaiv.Union ofIndia (AIR 1986SC733), the Supreme Court held

thecircular issuedbyGovernment ofTamilNaduto

Tamil Nadu Public Service Commission canceling the appointments of

converts who reconverted to Hinduism for getting into service and later

converted tootherreligion asvalid.

Marriag

e

The practiceof inter cast and inter religion marnagesraised another

question before thejudiciary. Thequestion whetheramember oftheupper

castcouldbecome amember ofschedule castorschedule tribebymarrying

amemberofthelattergroups.


69/81

InValsammaPaul v.CUSAT, (1996 (1)KLT169(SC)aforward caste

ladyhad married abackward caste man. Shewas not given the benefit of

reservation because shecould notbeconsidered backward aftertaking into

account her upbringing. The Supreme Court examined the issue in the

constitutional perspective and ruled that aperson getting into afamily of

Schedule cast or other backward communities by marriage may not be

entitled toreservation. Court heldthat"when amember istransplanted into the

Dalits, tribes and OBCs, he/she must of necessity undergo some


70/81

40

handicaps, be subject to same disabilities, disadvantages, indignities or

sufferings so as the candidate to avail the facilities of reservation. A

candidate whohadtheadvantageous startinlifebeing born inforward cast

andhadmarch ofadvantageous lifebutistransplanted inbackward castby

adoption ormarriage orconversion, dosenotbecome eligible tothebenefit of

reservation either under Article 15(4) or 16(4) as the case may be.

Acquisition of thestatus of schedule cast etc. by voluntary mobility into

these categories would play fraud on the Constitution and frustrate the

benign constitutional policyunderArticle 15(4)and 16(4).

InShobaHymavathiDeviv.SettiGangadharaSwami [(2005)2 see

244] theSupreme Court was dealing with the question of election to

Legislative Assembly. Theappellant claimedeligibility toelection fromseat

reserved for Schedule Tribe. The court held that the benefit would be

available onlytothosewhobelong toschedule cast/schedule tribeandnotto

otherswhoclaimtoacquirethestatusbymarriage.

Another importantquestion isregarding theposition ofoffspring's ofinter

castmarriage. Weretheyentitled toavailthebenefits ofreservation when

oneoftheir parents belonged tothe schedule cast/schedule tribe? Herewe

shallexaminethestatusofoffspring's ofintercastmarriage.


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Thepower tospecify anycast,raceortribes orparts oforgroupswithin

cast,raceortribeswhich shallforthepurpose oftheconstitution bedeemed to be

schedule cast/ schedule tribe, isvested inthe President interms of Article

341(1) and 342ofIndian Constitution. Even bythis process, either the

President orthe Parliament dose not determine the cast ofagroup of


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41

persons, butonly specifies acast,race,tribe orgroup orpartthere thereof.

Initially thisdidnotposemuchproblems forthecourtsprobably because of the

firm stand of the executive have taken in extending the benefits of

reservation to the children of inter-cast marriage if one of the parents

belonged to aschedule cast or schedule tribe. But thisexecutive fiatwas

something done beyond itspowers. There isno legislative competence for

theStategovernment todosointhelightofArticle 341and342.

Earlier, withaview to encourage inter cast marriage, children born in

"

inter castmarriage were give..- all benefitsof schedule cast and schedule

tribe ifone oftheir parents belonged toschedule cast orschedule tribe. It was

JusticeK.G.Balakrishnanin Bijumonv. Comissionerfor Entrance

Examination (1993 (2)KLT 1074)whodiffered onthisviewandobserved

thatthemembers ofthecastspecified inthePresidential notification alone

areentitled tobetreated asschedule castandthat the parliament alone is

giventhepowertoexclude anycastfromthePresidential notification.

Later athree Judge bench ofSupreme Court inPunithRaiv.Dinesh

Choudary[(2003) 8 SCC204]considered the scope of Article 341(1) of

Constitution ofIndia and the circular issued bythe Bihar Government in

connection with the acceptance ofnomination tothereserved constituency of


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the legislative Assembly. In this case, Dinesh Chudary, the returned

candidate wasanoffspring ofanintercastmarriage whose fatherbelonged to

Kurmicast(OBC)andmotherbelonged toPaisi(SC).ThePatnaHighCourt found

himtobe amember of schedule cast. Supreme Courtset aside the decision

oftheHigh Court andheldthatthecastofanoffspring ofaninter


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cast married couple shall be determined based on the cast of its father.

S.B.SinhaJ., inhis concurring judgment observed that "Determination of

cast of a person is governed by the customary laws. A person under

customary Hindu lawwould beinheriting thecastfromhisfather. Thecast

ofthefatherwillbethedeterminative factor.Ifcustomary lawistobegiven a go-by

for any purpose whatsoever and particularly for the purpose of enlarging

the scope ofanotification issued bythePresident ofIndiaunder Clause(1)

ofArticle 341oftheConstitution ofIndia,thesamemustbedone intermsofastatute

andnototherwise."

Therefore, if fatherbelongs to schedule cast/schedule tribe the child

wouldinheritthecastofhisfatherbyoperation ofthepersonal law.Ithasto

befurther establishedthatthechild stillusesthecastofthefather withthe same

disabilities, disadvantages and, sufferings. If the mother belongs to

schedule cast/schedule tribe and father not being schedule cast/schedule

tribe, the claimant has to prove that he has been brought up as schedule

cast/schedule tribe either by father or by mother and has suffered all

handicaps anddisadvantages ashaving beenborn asamember ofschedule

cast/schedule tribe.Heretheburden ofproving thesefactsisontheclaimant

himself.


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CONCLUSION

TheIndianConstitution isasocialdocument. Ithasbeenframedwithcertain

objectives. Social transformationandformation ofanegalitarian society is one

among them. The Indian Constitution recognisesthe presence of

continuous traditionaldiscrimination against certain classes and envisages

measures toendthem. Hence theIndian Constitution adopts the theory of

affirmative actions andreservations. TheConstitution clearlyrecognisesthat

thereare castes and classes which are in need of special support and

"

protection and the dream of apegalitarian society will remain unfulfilled

unless these classes are brought inthe mainstream ofthe society through

various measures. Reservation under Article15(4)and 16(4) are afewof

suchmeasures adopted bytheIndianConstitution.

It~as theLegislature whotooktheleading roletowards theattainment

ofthisobject.TheroleoftheJudiciary wasnotverypositive initially. Inthe

earlydaysoftheIndian Constitution, theJudiciary wasmorekeentowards

implementing thefundamental rightsthereby theconstitutional objectofthe

social reformation had some major set back. The swift action by the


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Legislature to mitigate the damage done by thejudiciary in

ChampakamDoorairajan'sCaseisaninstance ofthis.

However the Judiciaryhas played an important role in shaping the

concept ofreservation. The mostimportant was the reservation inservice and

promotion. When majorityofthe population of India was backward


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such aprovision was necessary in order to ensure that services are not

monopolisedbyasmallsection ofthepopulation. Itwasadopted asameans

topush upthebackward sections ofthepopulation andtobring them into the

mainstream of Indian life. Here the courts made an important

observation thatthe community availing reservation inpromotion shallnot

have adequate representation ingovernment service. Another majorissuewasregarding theidentification ofBackward Class.TheIndian Constitution

recognisescertain group identities. The backwardness in India was

,.

attributable tothese groups wh.i-eh''areotherwise the cast. Here thejudicial

vieweventhough notconsistent wasthatthebackward classwillconsist of those

castsifmajority oftheindividuals ofacommunity hasundergone the disability.

Hence the dispute as to the question of class or cast as the determinant

factorisanongoingdebate.

Theconcept ofcreamy layerhasensuredthatitisactually thebackwardsection of the reserved category population which gets the benefit of

reservation. The intention behind this concept was to protect those

individuals inthebackward community whomaybeleftbackward oncethe

individuals ofthatgroup areadvanced. Those advancedindividuals become

apartofthecreamy layerofthatgroup andhence theyareputintogeneral category

andceasetobepartofthegroupforthepurpose ofreservation. To thequestion


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whether thereserved category candidates wereeligible foropen merit seats, the

Judiciary had apositive view that the reserved category candidates

cancompete forgeneral category posts. Andiftheygetselected


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inopencompetition their selection willnotbecounted against thereserved

categoryposts.

When we go through the issue of reservation, it can be seen that the

Legislature wasmore active compared tojudiciary inadvancing the social

welfare measures. But attimes the legislative enthusiasm has affected the

equilibrium between the backward communities and the rest due to

excessive reservation. Thus thequestion ofextend ofreservation hasbeen

/"

frequentlyraised before the-v'courts. The judiciary has made timely

interventions tosettletheequilibrium. Theprinciple of50%reservation has

beenevolved asaresult ofthis.

Another importantdispute wasoverthestatusofArticle 15(4)and 16(4)

...

asfundamental right. The courtshave time and again observed that these

rights form part of fundamental rights and they cannot be termed as an


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exception clause. In this context, itisinteresting tonotethat, sofarArticle

15(4)and 16(4)havebeeninvoked beforethecourtsonlytochallenge State

actions onlyandnot anyinaction. Noinstance isavailable where someone

approached thecourttoenforcetheserights.Oneofthereasons forthismay be the

fact that the State has not failed in discharging its obligation in

implementing the social welfare measures. However itisahard truth that,

whenever a State action has happened in implementing the rights under

Article 15(4)and 16(4), ithas been challenged onthe ground ofequality,

efficiency andmerit.


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Hence it can be concluded that Article 15(4) and 16(4) are the cardinal

provisions in the Indian Constitution for the formation of an egalitarian

societyandtowards theattainment ofthemuchcherished socialreformation.

Soitisimportant thatthese policies arecarried onwithLegislative actions

andJudicial interpretations tilltheseobjectives areattained.

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