Professional Documents
Culture Documents
JUSTIFICATION OF RESERVATION
UNDER THE TAMIL NADU ACT 45 OF 1994
ON QUANTIFIABLE DATA
Submitted to
the Government of Tamil Nadu
By
Justice Thiru.M.S.Janarthanam,
Judge, Madras High Court (Retd.),
Chairman, Tamil Nadu Backward Classes Commission
and Members of the Commission
INDEX
Chapter
Description
Page No.
30
35
56
63
71
77
99
120
11
127
12
140
180
Foreword
Abbreviations
9
10
13
APPENDICES
I
[A-1]
II
[A-26]
III
[A-63]
Page | 1
ABBREVIATION
Art.
Article
BC
Backward Classes
DNC
Denotified Communities
G.O.
Government Order
GT
General Turn
LPG
MBC
NCERT
NSSO
OBC
OC
O.M.
Office Memorandum
SC
Scheduled Castes
SEBC
ST
Scheduled Tribes
SWOT
TNGG
W.P.
Writ Petition
Page | 2
1.
PUNCTILIOUS INTRODUCTION
1.1
1.2
1.3
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.
Page | 3
1.5
1.6
1.7
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
Page | 4
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
1.12
1.13
Page | 5
1.14
1.15
1.16
1.17
1.18
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.
Page | 7
2.
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
Page | 8
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
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
Page | 9
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.
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).
Page | 10
..
..
..
15%
25%
60%
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
Page | 11
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%
Page | 12
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)
1971 (1) The major recommendation of the First Backward Classes Commission
was enhancement of quantum of reservation for Backward Classes
from 25% to 33%.
Page | 13
..
..
..
18%
31%
51%
Page | 14
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)
Page | 15
(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%
Page | 16
The criterion followed by the Commission for determining the social and
educational backwardness were:
A.
SOCIAL BACKWARDNESS
Page | 17
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
Page | 19
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%
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.
Page | 21
(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.
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.
Page | 22
Page | 23
2000 (1)
2001 (1)
2002 (1)
Page | 24
2003 (1)
2004 (1)
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.
Page | 25
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
Page | 26
(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.
Page | 27
Page | 28
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)
Page | 29
3.
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
3.4
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
3.9
3.10
3.11
Page | 30
3.13
3.14
3.15
3.16
3.17
Page | 31
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
3.19
3.20
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
3.23
3.24
3.25
3.26
The British India was allotted 292 members. All the Princely States put
together were allotted a maximum of 93 members.
Page | 32
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
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
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
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
Page | 33
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
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
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
Page | 34
4.
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
4.5.3
4.5.5
4.5.6
4.5.7
Page | 37
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
Page | 39
(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
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;
Page | 40
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;
Page | 42
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.
Page | 46
Page | 47
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
4.7
Page | 48
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
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
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
Page | 50
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.
Page | 51
4.14
4.15
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
Page | 52
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
4.19
Page | 53
4.20
4.21
Page | 54
4.22
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
4.25
4.26
Page | 55
5.
5.1
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
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
5.10
5.11
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
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.
Page | 59
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
5.15
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
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.
Page | 61
5.18
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.
Page | 62
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.
Page | 63
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
Page | 64
6.4
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
Page | 65
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
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
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
Page | 67
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
Page | 68
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.
Page | 69
6.15
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.
Page | 70
7.
7.1
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
7.5
7.6
7.7
7.8
Page | 71
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
7.12
7.13
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
Page | 72
Consequently the Bill moved by Ambedkar was voted out. Ambedkar felt
deeply hurt. He finally tendered his resignation on September 27, 1951.
7.16
7.17
Page | 73
7.18
Page | 74
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
Page | 75
7.20
Page | 76
8.
8.1
8.2
8.3
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.
Page | 77
8.5
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
Page | 78
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
8.8
8.9
8.10
8.11
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
8.13
8.14
8.15
8.16
8.17
8.18
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
Page | 81
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
Page | 82
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
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
8.26
8.27
8.28
Page | 84
8.29
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
Page | 85
and Civil rights such as right to life and liberty, speech and expression,
right to religion and other rights.
8.33
8.34
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.
Page | 86
8.37
8.38
8.39
8.40
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
8.42
8.43
8.44
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
Page | 89
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
Page | 90
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
Page | 91
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
Page | 92
Page | 93
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
8.49
8.50
8.51
Page | 95
8.52
8.53
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
Page | 96
8.56
Page | 97
8.57
Page | 98
9.
9.1
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
Page | 99
9.6
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.
Page | 100
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..
9.9
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
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.
Page | 102
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
9.14
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
Page | 103
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.
Page | 104
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
9.18
9.19
Page | 105
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.
9.21
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
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
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
9.26
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
Page | 109
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.
Page | 110
Page | 111
9.28
Page | 112
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;
Page | 113
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
Page | 114
(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.]
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 .
Page | 116
9.32
9.34
Page | 118
9.35
9.36
Page | 119
10.
10.1
10.2
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
Page | 120
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
Page | 121
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
Page | 122
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
Page | 123
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
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
Page | 124
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
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.
Page | 126
11.
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.
11.4
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
11.7.
11.8.
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.
11.12
11.13
11.14
11.15
11.16
11.18
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
11.21
11.22
11.23
Page | 131
(b)
11.24
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
11.27
11.29
Page | 134
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
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
11.35
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
Page | 137
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
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
Page | 138
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
11.42
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.
Page | 139
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
12.5
Page | 140
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
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
Page | 141
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
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
Page | 142
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
Page | 143
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
Page | 144
(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
12.17
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
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
Page | 146
12.20
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
Page | 147
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
12.24
..
..
..
..
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
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
Page | 149
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
12.30
12.31
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
12.34
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.
Page | 151
12.36
12.37
12.38
12.39
12.40
The materials as stated above have been collected from the separate
report of the said Chairmans recommendations.
Page | 152
12.41
12.42
12.43
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
Page | 153
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
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.
Page | 155
Page | 156
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 :-
Page | 157
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)
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.
Page | 158
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
Page | 159
Page | 160
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
Page | 161
Page | 162
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
Page | 163
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
12.50
Page | 164
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
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.
Page | 165
12.51
12.52
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
Page | 166
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
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.
Page | 167
12.56
12.57
Page | 168
Page | 169
12.58
Page | 170
12.59
12.60
12.61
12.62
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
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%
Page | 172
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%
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
Page | 173
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
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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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.
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%
12.67
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12.68
12.69
Category
Scheduled Castes
102
2.5%
640
15.6%
Scheduled Tribes
13
0.3%
969
23.5%
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
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12.71
12.72
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
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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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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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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13.
13.1.
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
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
Page | 180
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 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.
Page | 182
13.9
13.10
13.11
13.12
Page | 183
13.13
13.14
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
13.18
13.19
13.20
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13.21
13.22
13.23
13.25
13.26
13.27
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.
[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)
Page | 188
NOTE ON APPENDICES
Appendices contain two items of Statements.
Statements were prepared by the Chairman of the Tamil Nadu Second Backward
Classes Commission.
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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