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TAMIL NADU BACKWARD CLASSES COMMISSION

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

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

Submitted to the Government of Tamil Nadu

On 8 th July 2011

By

Justice Thiru.M.S.Janarthanam,

Judge, Madras High Court (Retd.), Chairman, Tamil Nadu Backward Classes Commission and Members of the Commission

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

INDEX

Chapter

Description

Page No.

Foreword

Abbreviations

1 PUNCTILIOUS INTRODUCTION

……………………………………

3

2 RESERVATION IN TAMIL NADU – HISTORY OF EVENTS .……………

8

3 EVOLUTION OF THE CONSTITUTION AND DECLARATION OF INDEPENDENCE……………………………………………………………… 30

4 MARCH OF LAW IN THE MATTER OF RESERVATION .………………

35

5 QUALITATIVE EXCLUSION OF CREAMY LAYER – BASELESS ………

56

6 QUANTITATIVE RESTRICTION, WHETHER QUINTESSENTIAL? …….

63

7 BACKWARD CLASSES WITHOUT UNTOUCHABILITY WERE KEPT IN DARKNESS BY FOUNDING FATHERS OF INDEPENDENT INDIA ……

71

8 JUDICIAL INTERVENTION – STUMBLING BLOCK IN CAPACITY BUILDING OF BACKWARD CLASSES AND WEAKER SECTIONS OF THE SOCIETY …………………………………………………………

77

9 BASIC STRUCTURE THEORY – A DANGLING SWORD ABOVE THE HEADS OF BACKWARD CLASSES …………

99

10 NEGLECT OF BACKWARD CLASSES IN APPOINTMENTS TO HIGHER JUDICIARY……………………………………………………

120

11 POLITICAL POWER DYNAMICS OF INDIA – A CASE STUDY …………

127

12 RESERVATION UNDER THE TAMIL NADU ACT 45 OF 1994 – EXISTENCE OF QUANTIFIABLE DATA – JUSTIFIABILITY OR OTHERWISE THEREOF………………………………………………………

140

13 STRATEGY AND SYNERGY FOR INCLUSIVE GROWTH ………………

180

APPENDICES

I Statements for identifying Backward Classes based on the criteria evolved by Thiru.J.A.Ambasankar, IAS (Retd.), Chairman of the Tamil Nadu Second Backward Classes Commission ……

[A-1]

II Statements for identifying Backward Classes based on certain minor deviations made in the criteria evolved by the Chairman by the majority Members of the Tamil Nadu Second Backward Classes Commission .………………………………

[A-26]

III List of Backward Classes, Backward Classes of Muslims, Most Backward Classes, Denotified Communities, Scheduled Castes and Scheduled Tribes in the State of Tamil Nadu ………………………………………………………………

[A-63]

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

ABBREVIATION

Art.

Article

BC

Backward Classes

DNC

Denotified Communities

G.O.

Government Order

GT

General Turn

LPG

Liberalisation, Privatisation and Globalisation

MBC

Most Backward Classes

NCERT

National Council of Educational Research and Training

NSSO

National Sample Survey Organisation

OBC

Other Backward Classes

OC

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

O.M.

Office Memorandum

SC

Scheduled Castes

SEBC

Socially and Educationally Backward Classes

ST

Scheduled Tribes

SWOT

Strength, Weakness, Opportunity and Threat

Tamil Nadu Act 45 of 1994 Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments or posts in the services under the State) Act,1994

TNGG

Tamil Nadu Government Gazette

W.P.

Writ Petition

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1. PUNCTILIOUS INTRODUCTION

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

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

1.3 The said Commission conducted an elaborate survey employing 25000 personnel and collected all relevant, requisite and necessary particulars of 5 crores of people in the process of identifying Socially and Educationally Backward Classes. The survey lasted for 2 years. The Members of the said Commission did an intensive touring to all the districts for more than 30 days and recorded the evidence of more than 2000 witnesses.

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

1.6 Survey also conducted in the field of school education. About 2000 schools furnished information about their students. All the 230 colleges supplied information about those undergoing studies. The particulars about the admission to professional colleges like Medicine / Engineering/ Law and Veterinary for the past three years prior to survey were also collected. The details of recruitment made by Tamil Nadu Public Service Commission were gathered and enumerated. The Commission thus collected exhaustive information on all issues, Social, Educational – not to speak of economic conditions of people.

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

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

1.9 The reservation made to SC and ST as 19% is also proportionate to their population. In such circumstances, the reservation made by the Tamil Nadu Act 45 of 1994 in favour of BC, MBC, SC and ST all put together 69% is fully justified taking into consideration the percentage of population of those respective classes.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

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

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

1.13 The prolonged-endless legal battle prevented in a large measure inclusive growth i.e. “broad-based growth” or otherwise “pro-poor growth” a growth, which is broad based across sectors, and inclusive of the large part of the countries poor, disadvantaged, deprived and excluded sections of citizens.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1.14 Tamil Nadu is a pioneering State in any field of activity. It provided reservation benefits as indicated earlier even prior to the commencement of the Constitution.

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

1.16 Pertinent it is to refer to at this juncture, the observations made in the Final Report dated 30.9.2006 of the Government of India Oversight Committee on the implementation of the new policy of reservation in higher educational institutions.

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

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

1.18 The present exercise by this Commission is to find out as to whether it is feasible to save and protect the constitutional validity of the said enactment by justifying the 69% reservation made therein by the analysis of the quantifiable data furnished by the Government and in such process the Commission feels satisfied that such an exercise is likely to yield dividends to maintain the 69% reservation to BC, MBC, SC

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

and ST in admission to educational institutions including professional colleges and appointment or posts in the services under the State.

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

1.20 This Commission appended to the report at its fag end, the Chapter under the caption “Strategy and Synergy for Inclusive Growth”. In that Chapter among various things the introduction of reservation benefits in admission into educational institutions as well as in the services of the State to all the citizens of this State without any omission on proportional equality basis going by the saying“the 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 Hon’ble 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.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

2. RESERVATION IN TAMIL NADU – HISTORY OF EVENTS

1921 (1) The success of the Justice party in the 1920 Elections brought the subject
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 non-
Brahmin 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. Brahmins
2. Non-Brahmin Hindus
3. Indian Christian
4. Muhammadans
5. Europeans and Anglo Indians and
6. Others
This came to be known as the first communal Government order.
1922
(1)

The Government agreed to apply the principle of communal distribution both at the time of initial recruitment and at every point at which men were promoted wholly by selection and not by seniority. In order to secure satisfactory information as to the representation of the various communities in the different branches of the public service, an annual return showing the extent to which each of the six main sub divisions was represented in each department was ordered to be submitted to Government in G.O. Ms. No.658, Public Department, dated 15.8.1922. This was popularly known as the second communal Government order.

1925
1925

(1) The Government appointed a committee in G.O. No.733, Public Services, dated 3.8.1925 to enquire into and report on the working of the system of communal representation under the Chairmanship of Diwan Bahadur M. Krishnan Nayar with Rao Bahadur O. Tanikachala Chettiar, Rao Bahadur A.S. Krishna Rao Pantulugaru, Thiru B. Munusamy Naidu, Thiru Rao Bahadur T.M. Narasimha Charlu, Rao Bahadur N.C. Raja, Thiru Abdullah Ghatala Sahib Bahadur and Thiru Arputhaswamy Udaiyar as its members. Although the committee functioned for about three years, it did not submit its report.

Udaiyar as its members. Although the committee functioned for about three years, it did not submit

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1927 (1) There was pressure all round for proportionate distribution of Government appointments. In G.O.Ms.No.1071,
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.
Reservation (%)
Population (%)
1. Non Brahmins
5 out of 12
41.67
72
2. Brahmins
2 out of 12
16.67
3
3. Anglo-Indian and
2
Out of 12
16.67
4
Christians
4. Muhammadans
2 out of 12
16.67
7
5. Depressed
1
Out of 12
8.33
14
Classes
A cyclic order was also prescribed as follows:
Non – Brahmin (Hindu)
Muhammadan
Non – Brahmin (Hindu)
Anglo – Indian or Christian
Brahmin
Non – Brahmin (Hindu)
Others (Depressed Classes)
Non – Brahmin (Hindu)
Muhammadan
Non – Brahmin (Hindu)
Anglo – Indian or Christian
Brahmin
1934 (1) The Madras Provincial Backward Classes League, an Association representing the various Backward Hindu
1934 (1) The Madras Provincial Backward Classes League, an Association
representing the various Backward Hindu communities was founded in
the various Backward Hindu communities was founded in 1934. It pressed for a separate quota for

1934. It pressed for a separate quota for the Backward members.

1947
1947

(1) The Government passed an order in G.O. No.3437, Public Services, dated 21.11.1947 giving separate representation to the Backward Hindus, and also increased the then existing representation of 1 out of 12 allowed for Depressed classes. In the place of the earlier allocation of the unit of 12 appointments a revised allocation of a unit of 14 appointments as shown below was ordered:-

Reservation (%) Population (%) 1. Non-Brahmin Hindus 6 out of 14 42.86 22 2. Backward
Reservation (%)
Population (%)
1. Non-Brahmin Hindus
6 out of 14
42.86
22
2. Backward Hindus
2 out of 14
14.29
50
3. Brahmins
2 out of 14
14.29
3
4. Harijans
2 out of 14
14.29
14
5. Anglo Indians /
Indian Christians
1 out of 14
7.14
4
6. Muslims
1 out of 14
7.14
7

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

For the first time in the history of appointments to Public services the group of
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. Non – Brahmin Hindus
2. Harijans
3. Backward Hindus
4. Non– Brahmin Hindus
5. Brahmins
6. Non– Brahmin Hindus
7. Muslims
8. Non– Brahmin Hindus
9. Anglo Indians / Indian Christians
10. Non– Brahmin Hindus
11. Harijans
12. Non– Brahmin Hindus
13. Brahmins
14. Backward Hindus
1950

(1) The Constitution as originally passed contained Article 16(4). Soon after the Constitution came into force the Government of India suggested to the State Government that the existing system of recruitment for Public services on communal basis should be abrogated at an early date as it was inconsistent with the letter and spirit of Article 16 of the Constitution and that suitable provisions within the meaning of Article 16(4) and Article 335 of the Constitution should be made for protecting the interests of the weaker sections of the Society. There were also objections from the public to the communal system followed in the matter of admission of students to the Professional Colleges.

1951
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

the matter with the Centre. This resulted in the first amendment to the constitution introducing Article
15(4).
15(4).

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

under the Tamil Nadu Act 45 of 1994 on Quantifiable Data The Supreme Court judgement in
The Supreme Court judgement in Venkatramana Vs State of Madras made the Government to revise
The Supreme Court judgement in Venkatramana Vs State of Madras
made the Government to revise the then existing rule relating to
representation of communities in public services. Social and
Educational backwardness alone became the criteria for reservation in
public services. Under the revised system introduced in G.O. No.2432,
Public (Services), dated 27.9.1951, in a cycle of 20 appointments 3
were reserved for Scheduled Castes and Scheduled Tribes, 5 for
Backward Classes and rest were filled in by open competition. A
certain sections of Mohammedans and Anglo Indians and Christians
were included among the Backward Classes. This amounts to a
reservation of,-
Scheduled Castes and Scheduled Tribes
Backward Classes
Open Competition
15%
25%
60%
The cycle of 20 vacancies for regulating the order of recruitment was
laid down as follows:
1. Open competition
2. Scheduled Castes and Scheduled Tribes
3. Open competition
4. Backward Classes
5. Open competition
6. Open competition
7. Backward Classes
8. Open competition
9. Scheduled Castes and Schedule Tribes
10. Open competition
11. Open competition
12. Backward Classes
13. Open competition
14. Backward Classes
15. Open competition
16. Scheduled Castes and Schedule Tribes
17. Open competition
18. Open competition
19. Backward Classes
20. Open competition
If qualified and suitable candidates were not available among the
Scheduled Castes and Scheduled Tribes and Backward Classes in
their respective turns they simply lapsed. Candidates belonging to
Scheduled Castes and Scheduled Tribes and Backward Classes were
also eligible for selection against the open competition turns on the
basis of merit without prejudice to the turns reserved for them.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1954 (1) At the time of State Re-organisations, Kanniyakumari District and Shencottah Taluk of Tirunelveli
1954 (1) At the time of State Re-organisations, Kanniyakumari District and
Shencottah Taluk of Tirunelveli District were added into Tamil Nadu
from Travancore Cochin State. The concessions enjoyed by the
following communities in Travancore Cochin State were preserved and
continued to those communities in Kanniyakumari District and
Shencottah Taluk. Hence a separate list was maintained for these
transferred territories and their special identity was maintained.
(1) Alwar
(2) Arayar (Nulayar)
(3) Aryavathi
(4) Chavalakkaran
(5) Chettu or Chetty
(6) Ezhuthachan
(7) Ezhavathy
(8) Ezhava
(9) Kalari krup (kalari Panicker)
(10)Kudumbi
(11)Naikkan
(12)Odarn
(13)Perumkollar
(14)Sakkaravar (Kavathi)
(15)Tholkollan
(16)Veerasaiva
(17)Veluthodathu Nair
(18)Krishnanvaka
(19)Latin Catholics
(20)C.S.I. formerly S.I.U.C.
The following communities were treated as Backward Classes only for
the purpose of reservation of seats in educational institutions and for
the posts in public services:-
(1) Paravan Christian in Kanniyakumari District and
Shencottah Taluk of Tirunelveli District.
(2) Latin Catholics
(3) Krishnavaka
(4) C.S.I.formerly S.I.U.C.
After the reorganisation of the State and taking into account the
population of Scheduled Castes and Scheduled Tribes the reservation
of appointments was modified in G.O. Ms. No.2643, Public (Services),
dated 30.12.1954 as follows:-
Scheduled Castes and Scheduled Tribes
Backward Classes
Open Competition
16%
25%
59%

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

under the Tamil Nadu Act 45 of 1994 on Quantifiable Data This led to inclusion of
This led to inclusion of five more turns as follows: 21. Open Competition 22. Scheduled
This led to inclusion of five more turns as follows:
21. Open Competition
22. Scheduled Castes and Scheduled Tribes
23. Open Competition
24. Backward Classes
25. 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
(Khalelkar’s Commission), which identified certain castes as more
Backward and suggested that preference may be given to them over
other castes in the list of Backward Classes for the grant of educational
concessions, etc. The Government accordingly issued directions in
G.O. Ms. No.353, Industries, Labour and Co-operation, dated
31.1.1957 recognising a list of Most Backward Classes for whom
educational concessions alone need be granted for the present as
admissible to Scheduled Castes from the academic year 1957-58. The
number of communities in the list of Most Backward Classes at that
time was 58.
1969 (1) The Government of Tamil Nadu constituted the First Backward Classes Commission in the
1969 (1) The Government of Tamil Nadu constituted the First Backward Classes
Commission in the year 1969 under the Chairmanship of
Thiru.A.N.Sattanathan to recommend for the betterment of Backward
Classes in Education, in Employment under Government and in several
fields of economic activities.
1971 (1) The major recommendation of the First Backward Classes Commission was enhancement of quantum
1971 (1) The major recommendation of the First Backward Classes Commission
was enhancement of quantum of reservation for Backward Classes
from 25% to 33%.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(2) The High Level Committee constituted by Government of Tamil Nadu to review the quantum
(2)
The High Level Committee constituted by Government of Tamil Nadu to
review the quantum of reservation for Scheduled Castes and
Scheduled Tribes recommended that the reservation to Scheduled
Castes and Scheduled Tribes should be raised from 16% to 24%.
(3)
The Government, after examining the recommendation of the
Commission as well as the recommendation of the High Level
Committee revised the percentage of reservation in the year 1971 as
follows:
Scheduled Castes and Scheduled Tribes
Backward Classes
Open Competition
18%
31%
51%
Revised order of rotation of hundred turns was also prescribed, of
which eighteen turns were earmarked for Scheduled Castes and
Scheduled Tribes and thirty one turns for Backward Classes.
1972 (1)

The existing list of Backward Classes in the State of Tamil Nadu owes its origin to the list of Backward Classes as approved by the Government in 1972, which was an outcome of the recommendations of the First Backward Classes Commission. At the time of formation of the above Commission, there were three lists relating to Backward Classes with a number of inconsistencies separately maintained by three departments viz., the Backward Classes Department (for the purpose of award of Scholarship etc.), the Education Department (for the purpose of grant of fee concessions under 92 Madras Educational Rules) and the Tamil Nadu Public Service Commission (for the Recruitment to Public Services).

The Sattanathan Commission decided to do away with the practice of maintaining separate list by
The Sattanathan Commission decided to do away with the practice of
maintaining separate list by different authorities and made the
Backward Classes Department, as the only single authority for the
maintenance of the list of Backward Classes in future and made
recommendation in this regard. The list of Backward Classes finally
drawn by the Commission had undergone the following stages of
elimination:
1. Deletion of Communities which were figuring in the list of Scheduled
Castes / Scheduled Tribes.
2. Deletion of Communities which were not found in the State of Tamil
Nadu.
3. Elimination of redundancies and repetitions and giving alternative
descriptions of certain communities.
4. Amplifying the description of certain communities; and
5. Clubbing together certain allied communities.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

Based on the recommendation of the above Commission, the Government included certain communities in the
Based on the recommendation of the above Commission, the
Government included certain communities in the list of Backward
Classes from time to time. A consolidated list incorporating these
communities was issued in G.O. Ms. No.437, Social Welfare
Department, dated 15.5.1972. Annexure III of the said G.O. contained
39 communities in the list of Most Backward Classes. (Annexure I listed
the Backward Classes throughout the State; Annexure II listed
Backward Classes in Kanyakumar district and Shencottah taluk of
Tirunelveli district). The revised list was given effect from the academic
year 1971 -1972 for the purpose of Educational and other concessions
and reservation of seats in educational institutions. For the purpose of
reservation in recruitment to Public Services, the list was given effect
from the date of the order.
The separate list of Backward Classes maintained from 1954 for the
communities in Kanyakumari district and Shencottah taluk of Tirunelveli
district was merged with the Backward Classes throughout State with
specific mention about the area/territorial restriction.
1972 to (1) After this, the Government declared more and more communities as Backward, either
1972
to
(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
Collectors or studies made by other Government Agencies between the
1979 period from 1972 to 1979. The details of Communities so added to the
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)

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(2) Subsequently the Government included the following communities in the list of Backward Classes. (1)
(2)
Subsequently the Government included the following communities in
the list of Backward Classes.
(1) Gavara (entry relating to Gavarai and Vadugar)
(2) Mutharaiyar (entry relating to Muthuraja)
(3) Nangudi Vellalar
(3)
The Sattanathan Commission, among other things, observed that the
more affluent and advanced sections of Backward Classes themselves
monopolized all concessions. It suggested superimposition of an annual
income limit of Rs.9,000/- for eligibility to get the concession. The
Government superimposed the income limit of Rs.9,000/- per annum to
become eligible for the Backward Classes concessions including
reservation in G.O. Ms. No.1156, Social Welfare, dated 2.7.1979.
1980 (1)
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
(2)
While removing the income ceiling, an upward reservation for Backward
Classes from 31% to 50% was ordered in G.O. Ms. No.73, Social
Welfare, dated 1.2.1980 taking into account the addition of certain
communities in the list of Backward Classes and the total population of
Backward Classes. The total reservation comes to 68% as follows:
Scheduled Castes and Scheduled Tribes
Backward Classes
Open Competition
18%
50%
32%
(3)
The Government ordered the inclusion of Rawther and Marakkayar in
the entry ‘Labbais’ in the list of Backward Classes.
1983

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

for reviewing the existing list of Backward Classes and for recommending measures for their upliftment. Page

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

under the Tamil Nadu Act 45 of 1994 on Quantifiable Data The criterion followed by the

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

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1983 (1) The Government declared the Christian Nadar, Christian Shanar and Christian Gramini as Backward
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
1985 (1) The Ambasankar Commission submitted its report to Government on
28.2.1985. The Commission recommended for deletion of 24
communities from the list of Backward Classes existed at that time and
inclusion of 29 communities as socially and educationally Backward
Classes. The Government after considering the recommendation of the
above Commission, in the light of the guidelines given by the Supreme
Court in Vasantha Kumar and Others Versus State of Karnataka
(1985 I SCALE 832) and decided to accept the recommendation of the
Commission in regard to the inclusion of new communities in the list of
Backward Classes. Accordingly the Government included the following
communities in the list of Backward Classes in the orders issued in
G.O. Ms. No.1564, Social Welfare Department, dated 30.7.1985:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)
Lingayat (Jangama)
Kasukkara Chettiat
Pulavar (Coimbatore District)
Mooppan
Velar (kulalar)
Urikkara Nayakkar
Syed
Sheik
Ansar
Kaniyala Vellalar
Moondru Mandai Enbathu Nalu (84) Ur-Sozhia Vellalar
Muga Vellalar
Sundaram Chetty
Kongu Vaishnava
Agaram Vellan Chettiar
Ayira Vaisyar
Karpoora Chettiar
Oottru Valanattu Vellalar
Paiyur Kotta Vellalar
Kudikara Vellalar
Chowdry
Thoraiyar
Kannadiya Naidu
Pooluva Gounder
Gounder
O.P.S. Vellalar
Kallarkula Thondaman
Ukkirakula Kshatriya Naicker
Podikkara Vellalar
As regards the deletion of 24 communities from the list of Backward
Classes, the Government took into account the Class poverty of each
community, their way of life, their standard of living, their habits
and customs and their place in the social hierarchy in the State and

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

under the Tamil Nadu Act 45 of 1994 on Quantifiable Data observed no justification for deletion

observed no justification for deletion of these 24 communities and that they should continue be treated as Backward Classes, giving due weightage to all these factors.

(2) The total population of Backward Classes as determined by the Tamil Nadu Second Backward
(2)
The total population of Backward Classes as determined by the Tamil
Nadu Second Backward Classes Commission was approximately 67%
of the total population of the State. The Majority Report of the
Commission recommended that in view of the above percentage, the
existing reservation of 50% for Backward Classes may be continued
and needs no modification. The Government accepted the above
recommendation and issued orders for the continuance of 68%
reservation in the State in G.O. Ms. No.1565, Social Welfare, dated
30.7.1985.
(3)
The Government also approved the list of Most Backward Classes in
G.O. Ms. No.1566, Social Welfare Department, dated 30.7.1985 and list
of Denotified Communities in G.O. Ms. No.1567, Social Welfare
Department, dated 30.7.1985.

1986 (1) The Christian converts from the Hindu Backward Class Communities represented to the Government to extend all the concessions granted to the Hindu Community treating them as Backward, not withstanding their conversion as Christians, on the ground that these Christian communities also suffer from all social disabilities as Hindu Communities in spite of their conversion and that it is not the religion but the social and educational backwardness that should be the basis for inclusion of any communities in the list of Backward Classes. The majority members of the Tamil Nadu Second Backward Classes Commission recommended that when once the various Hindu Backward Class Communities are listed, their respective converts to other religions also be included in the list of Backward Classes as in the case of Christian Nadar, Christian Shanars, Christian Gramini, Christian Paravar etc. The Government, after carefully examining the representations with reference to the social status and educational backwardness, issued orders in G.O. Ms. No.558, Social Welfare Department, dated 24.2.1986 declaring the Christian converts from any Hindu community included in the list of Backward Classes as Backward Classes. The above orders were given effect from the academic year 1986 -1987 for the purpose of Educational and other concessions and reservation of seats in educational institutions and from the date of issue of this order in regard to reservation in recruitment to Public Services.

and from the date of issue of this order in regard to reservation in recruitment to

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1989 (1) The issues relating to reservations have been the subject of enquiry by the
1989
(1)
The issues relating to reservations have been the subject of enquiry by
the Backward Classes Commissions appointed in this State. The First
Backward Classes Commission (Sattanathan Commission) as well as
the Second Backward Classes Commission (Ambasankar Commission)
clearly brought out in its report that several communities among those
included in the list of Backward Classes did not receive their due share
in educational and employment opportunities while a small number of
communities in the list of Backward Classes benefited to a relatively
large extent. The Most Backward Classes and the Denotified
Communities who constitute a large proportion in the population of
Backward Classes made representations for special reservation to Most
Backward Classes and Denotified Communities amongst Backward
Classes. Government issued orders in G.O. Ms. No.242, Backward
Classes Welfare, Nutritious Meal Programme and Social Welfare, dated
28.3.1989 providing 20% reservation for Most Backward Classes and
Denotified Communities from out of the 50% reservation then available
for all Backward Classes leaving the remaining 30% for Backward
Classes. The reservation was distributed among the various categories
as given below:
Scheduled Castes and Scheduled Tribes
Most Backward Classes and Denotified Communities
Backward Classes
Open Competition
18%
20%
30%
32%
(2)
The Christian converts from Parvatha Rajakulam, Meenavar,
Pattanavar and Sembadavar were included in the list of Most Backward
Classes (G.O. Ms. No.242, Backward Classes Welfare, Nutritious Meal
Programme and Social Welfare, dated 28.3.1989).
(3)
Representations have been received from Paravar Christians that they
also belong to Fishermen Community and hence they may be treated
as Most Backward Classes as in the case of Christian converts from
Parvatha Rajakulam, Meenavar, Pattanavar and Sembadavar. The
Government accepted the above demand and declared the Paravar
Christians (except in Kanniyakumari District and Shencottah Taluk of
Tiurnelveli District) as Most Backward Classes in Government Letter
No.42124/BCC/89-6, dated14.9.1989.
(4)
The Government, after examining the request received from Mukkuvar
or Mukayar community (Fishermen Community) issued orders in G.O.
Ms. No.929, Backward Classes Welfare, Nutritious Meal Programme
and Social Welfare, dated 7.11.1989 for the inclusion of the above
community and their converts to Christianity in the list of Most
Backward Classes.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

1990 (1) Based on the directions of High Court in W.A.No.1692 of 1987 the Government
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
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
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)
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
(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.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(ii) Periodic revision of lists of Backward Classes / Most Backward Classes in the State
(ii)
Periodic revision of lists of Backward Classes / Most Backward Classes in the
State as and when decided.
(iii)
The Commission shall base its recommendations in the light of the provision
contained in Art.16(4) read with relevant provisions of the Constitution of India
and the various decisions of Supreme Court bearing on the subject.
(3)
When the issue of admission to educational institutions for the
academic year 1993-94 came up before the High Court of Madras, the
High Court permitted the Government to continue its reservation policy
as hitherto followed i.e. 69% during the academic year 1993-94. At the
same time the Court also directed that the quantum of reservation
should be brought down to 50% during the next academic year 1994-
95. The Voice (Consumer Care) Council filed a Special Leave Petition
(SLP .No.13526/1993) before the Supreme Court against the Judgment
of the High Court of Madras permitting the State Government to
continue the 69% reservation policy during the academic year 1993-94.
The Government of Tamil Nadu have also filed Special Leave Petitions
(SLP.Nos.16534-40/1993) against the judgment of the High Court,
Madras directing the Government to bring down the reservation to 50%
before the academic year 1994-95, in order that the present reservation
policy of the State Government should be reaffirmed so as to ensure
the continued advancement of the Backward Classes. The Supreme
Court of India passed an interim order reiterating that the reservation
should not exceed 50% in the matter of admission to educational
institution.
1994 (1) The entire State of Tamil Nadu was deeply disturbed by the far reaching
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.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(2) Consequent to the assent given by His Excellency the President of India to the
(2)
Consequent to the assent given by His Excellency the President of
India to the Tamil Nadu Act 45 of 1994, the Government notified the
lists of classes of citizens of socially and educationally backward
including the Most Backward Classes and the Denotified Communities
under clause (a) of Section 3 of the said Act in G.O.Ms.No.28,
Backward Classes and Most Backward Classes Welfare Department
dated 19.7.1994. (Notification No.II(1)/BCMBC/62(a)/94 dated
19.7.1994.)
(3)
One Thiru .S.P. Sampath Kumar filed a Writ Petition in the Supreme
Court of India (W.P. No.454 of 1994) challenging the validity of the
Tamil Nadu Act 45 of 1994. The petitioner also filed a prayer for stay
on the implementation of the Tamil Nadu Act. Some other Writ
Petitions were also filed before the Supreme Court on the same ground.
The Writ Petitions challenging the validity of the Tamil Nadu Act and
praying stay of the operation of the Act, the Contempt Petitions and the
Special Leave Petitions were taken up by the Supreme Court for
consideration on 1.8.1994. The Supreme Court admitted the Writ
Petitions and referred them to the Constitution Bench. However, the
Supreme Court did not stay for the operation of the Act.
(4)
Subsequently, the Supreme Court in its interim orders dated 18.8.1994
directed the Government of Tamil Nadu to create additional seats in
professional Colleges to accommodate the students who would have
been selected if 50% rule of reservation was followed instead of 69%.
1995 (1) In connection with the case challenging the quantum of reservation made under the
1995 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 1995-96. The order of Supreme Court
was communicated to the concerned departments for compliance.
1996 (1) In connection with the case challenging the quantum of reservation made under the
1996
(1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 1996-97. The order of Supreme Court
was communicated to the concerned departments for compliance.
1997 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 1997-98. The order of Supreme Court
was communicated to the concerned departments for compliance.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

under the Tamil Nadu Act 45 of 1994 on Quantifiable Data (2) Consequent on the bifurcation

(2) Consequent on the bifurcation / trifurcation and renaming of certain Districts, Government published notification under clause (a) of section 3 of Tamil Nadu Act 45 of 1994 amending the BC & MBC Welfare Department Notification No.II(1)/BCMBC/62(a)/94 Part II – Section 1, Tamil Nadu Government Gazette Extraordinary dated 19.7.1994 in relation to name of certain Districts in G.O.Ms.No.100, BC & MBC Welfare (BCC) Department dated 24.11.1997.

1998
1998

(1) In connection with the case challenging the quantum of reservation made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed the interim orders for the creation of additional seats in the Professional Colleges for the academic year 1998-99. The order of Supreme Court was communicated to the concerned departments for compliance.

1999
1999

(1) In connection with the case challenging the quantum of reservation made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed the interim orders for the creation of additional seats in the Professional Colleges for the academic year 1999-2000. The order of Supreme Court was communicated to the concerned departments for compliance.

communicated to the concerned departments for compliance. 2000 (1) In connection with the case challenging the
2000 (1) In connection with the case challenging the quantum of reservation made under the
2000 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2000 – 2001. The order of Supreme
Court was communicated to the concerned departments for
compliance.
2001
2001

(1) In connection with the case challenging the quantum of reservation made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed the interim orders for the creation of additional seats in the Professional Colleges for the academic year 2001 – 2002. The order of Supreme Court was communicated to the concerned departments for compliance.

2002
2002

(1) In connection with the case challenging the quantum of reservation made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed the interim orders for the creation of additional seats in the Professional Colleges for the academic year 2002 – 2003. The order of Supreme Court was communicated to the concerned departments for compliance.

year 2002 – 2003. The order of Supreme Court was communicated to the concerned departments for

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

2003 (1) In connection with the case challenging the quantum of reservation made under the
2003 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2003 – 2004. The order of Supreme
Court was communicated to the concerned departments for
compliance.
2004 (1) In connection with the case challenging the quantum of reservation made under the
2004 (1) In connection with the case challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, the Supreme Court passed
the interim orders for the creation of additional seats in the Professional
Colleges for the academic year 2004 – 2005. The order of Supreme
Court was communicated to the concerned departments for
compliance.
2005 In connection with the case challenging the quantum of reservation made under the Tamil
2005 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.
(1)
(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 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.
(1)
(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.

Scheduled Castes and the Scheduled Tribes in the State of Tamil Nadu [Tamil Nadu Act 12

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(3) While reconstituting the Tamil Nadu Backward Classes Commission vide G.O.Ms.No.30, BC,MBC & MW department,
(3) While reconstituting the Tamil Nadu Backward Classes Commission
vide G.O.Ms.No.30, BC,MBC & MW department, dated 11.7.2006, the
following terms of reference was issued:
(i)
The Commission shall entertain, examine and recommend upon requests for
inclusion and complaints of over-inclusion and under-inclusion in the lists of
Backward Classes/Most Backward Classes.
(ii)
Periodic revision of list of Backward Classes and Most Backward Classes in
this State as and when decided.
(iii)
The Commission shall base its recommendations in the light of provision
contained in Article 16(4) read with relevant provisions of the Constitution of
India and the various decisions of the Supreme Court bearing on the subject.
(iv)
The Commission shall make recommendations on improved reservation for
Christians, Muslims and other Minorities based on their social and educational
backwardness.
(v)
The Commission shall examine and make recommendations on any other
matter relating to Backward Classes that may be referred to it by Government
from time to time.
2007
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.

communicated to the concerned departments for compliance. 2008 (1) (2) (3) In connection with the case
2008 (1) (2) (3)
2008
(1)
(2)
(3)

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.

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.

Consequent to the 3.5% reservation each ordered for Backward Class Muslims and Backward Class Christians, in supersession of the

3.5% reservation each ordered for Backward Class Muslims and Backward Class Christians, in supersession of the

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

Notification No.11 (1)/BCMBC/62(a)/94 dated 19.7.1994 of the BC and MBC Welfare Department, the Government notified
Notification No.11 (1)/BCMBC/62(a)/94 dated 19.7.1994 of the BC and
MBC Welfare Department, the Government notified the list of Backward
Classes, Backward Class Christians, Backward Class Muslims, Most
Backward Classes and Denotified Communities in G.O.Ms.No.85, BC,
MBC and MW Department dated 29.7.2008 [Notification No.II(1)
/BCMBCMW/36(a)/2008 dated 5.9.2008]
(4)
Consequently to above enactment, the 100 points roster maintained for
appointments was modified as 200 points roster. (G.O.Ms.No.241,
P&AR dept., dated 29.10.2007, G.O.Ms.No.101, P&AR, dated
30.5.2008, Govt. Lr No.40321/S/2008, P&AR, dated 29.7.2008)
(5)
The list notified on 5.9.2008 was amended for deletion of ‘Kurumba
Gounder’ community entered as a sub-sect of Kongu Vellalar
community in the Backward Classes, and inclusion of the community as
a sub-sect of ‘Kurumba’ community in the Most Backward Classes.
(G.O.Ms.No.96, BC,MBC&MW department, dated 8.9.2008 and TNGG
(Extraordinary) No.II(1)/BCMBCMW/ 41(a)/2008 dated 18.9.2008).
(6)
The list notified on 5.9.2008 was further amended in TNGG Notification
No.II(1)/BCMBCMW/41(b)/2008 dated 19.9.2008. The following
communities were included in the Backward Classes:
(1) Vallanattu Chettiar.
(2) Cherakula Vellalar.
(3) Pandia Vellalar.
The following Backward Classes were notified as Most Backward
Classes:
(1) Arayar (in Kanniyakumari District)
(2) Thoraiyar (Nilgiris)
(3) Thoraiyar (Plains)
(4) Panisaivan / Panisivan
(5) Kanniyakumari District Latin Catholic Christians Vannar
(6) Erragollar (as a subsect of Thottia Naicker)
(G.O.Ms.No.97, BC,MBC & MW Department dated11.9.2008)

2009 (1) Accepting the request made by the representatives of Christian communities, the 3.5% reservation provided to the Backward Class Christians was withdrawn and they are allowed to avail the benefit from the 26.5% reservation available for Backward Classes other than Muslims. (Tamil Nadu Act No. 51 of 2008). Consequently, necessary changes in the 200 points roster for appointments were modified in G.O.Ms.206, P&AR, dated 6.11.2008.

changes in the 200 points roster for appointments were modified in G.O.Ms.206, P&AR, dated 6.11.2008. Page

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

under the Tamil Nadu Act 45 of 1994 on Quantifiable Data (2) In connection with the
(2) In connection with the cases challenging the quantum of reservation made under the Tamil
(2)
In connection with the cases challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, The Supreme Court
passed the interim orders for the creation of additional seats in the
Professional Colleges for the academic year 2009–2010. The Orders of
Supreme Court was communicated to the concerned departments for
implementation.
(3)
The Tamil Nadu Arunthathiyars (Special Reservation of seats in
Educational Institutions including Private Educational Institutions and of
appointments or posts in the Services under the State within the
Reservation for the Scheduled Castes) Act, 2009 [Tamil Nadu Act 4 of
2009] was enacted to provide for reservation to seven castes in
Scheduled Castes list, namely Arunthathiyar, Chakkilian, Madhari,
Madiga, Thoti, Pagadai and Adi-Andhra, on preferential basis to an
extent of sixteen percent from out of the reservation available for the
Scheduled Castes in admission to educational institutions including
private educational institutions and for appointments to the Public
Services. The act came into force on 24.4.2009. Accordingly, the 200
points roster for appointments was modified (G.O.Ms.No.65, P&AR,
dated 27.5.2009).
(4)
The list of Backward Classes was amended further as a consequence
of withdrawal of separate quota of 3.5% provided to the Backward
Class Christians was withdrawn (G.O.Ms.No.37, BC,MBC & MW
Department, dated 21.5.2009).
(5)
The list of Most Backward Classes was again amended to include
thereunder the Paravar Converts to Christianity of Kanniyakumari
district and Shencottah Taluk of Tirunelveli district. (G.O.Ms.No.98,
BC,MBC & MW Department dated 5.11.2009)
(6)
The Government ordered that the status of persons as Backward
Classes, Most Backward Classes and Denotified Communities with
area / territorial restrictions should be the same even if such persons
migrate out of the notified area / territory, for education, employment or
otherwise. (G.O.Ms.No.95, BC,MBC &MW dept, dated 28.10.2009)
2010 (1) In connection with the cases challenging the quantum of reservation
made under the Tamil Nadu Act 45 of 1994, The Supreme Court
passed the interim orders for the creation of additional seats in the
Professional Colleges for the academic year 2009–2010. The Orders of
Supreme Court was communicated to the concerned departments for
implementation.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(2) The Writ Petitions challenging the validity of quantum of reservation provided for in the
(2) The Writ Petitions challenging the validity of quantum of reservation
provided for in the Tamil Nadu Act 45 of 1994 were disposed of by the
Supreme Court, vide order dated 13.7.2010, with the following
directions:-
“Subsequent to the filing of the above Writ Petitions, Acticles 15 and 16 of
the Constitution have been amended vide Constitution (Ninety-third
Amendment) Act, 2005, and Constitution (Eighty-first Amendment) Act,
2000, respectively, which Amendment Acts have been the subject-matter
of subsequent decisions of this Court in the cases of M.Nagaraj & Ors. Vs.
Union of India & Ors [2006 (8) S.C.C. 212] and Ashoka Kumar Thakur Vs.
Union of India & Ors. [2008 (6) S.C.C. 1], in which, inter ailia, it has been
laid down that if a State wants to exceed fifty percent reservation, then it is
required to base its decision on the quantifiable data. In the present case,
this exercise has not been done. Therefore, keeping in mind the said
parameter, we direct the State to place the quantifiable data before the
Tamil Nadu State Backward Classes Commission and, on the basis of
such quantifiable data amongst other things, the Commission will decide
the quantum of reservation. We are informed by learned Solicitor General
that such data in the form of Reports, which are subsequently prepared, is
already available. Consequently, these writ petitions stands disposed of
with a direction to the State Government to re-visit and take appropriate
decision in the light of what is stated above. It needs to be mentioned that
the interim orders passed by this Court from time to time in relation to
admissions to Educational Institutions shall continue to be in force and in
operation for a period of one year from today. In the circumstances, we
are not expressing any opinion on the validity of 1994 Act at this stage.”
2011 (1) The Supreme Court in its order dated 3.1.2011, has also directed this Commission
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)

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

3. EVOLUTION OF THE CONSTITUTION AND DECLARATION OF INDEPENDENCE

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

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

3.3 The Secretary of State was answerable only to the British Parliament. He sat in London and controlled India through Governor-General in Delhi. The Governor-General was assisted by an Executive Council.

3.4 India was divided into several Provinces ruled by Governors. The Government of India, headed by Governor-General, was not federal in nature. It functioned only as a unitary form of Government.

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

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

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

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

3.9 Despite this, Simon Commission interviewed a number of Indians and submitted a report to the British Government in 1930.

3.10 This report was considered by a “Round Table Conference” in London. The participants were delegates of British Government and of British India and the rulers of Indian States.

3.11 A ‘White Paper’ was finally prepared.

Parliament examined this.

Joint Select Committee of British

Consequent on the recommendations of the

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

Committee, a Bill was prepared and passed by the British Parliament. This was how the Government of India Act 1935 was born.

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

3.13 A National Convention of the Congress legislators from the provinces

March 1937. While addressing the

MLAs (the very products of the 1935 Act!), Jawaharlal Nehru eloquently said, “The Government of India Act, 1935, must go lock, stock and barrel and leave the field open for our Constituent Assembly.”

met at New Delhi on 19 th and 20

th

3.14 On 7 th September 1937, in support of the demand for framing a Constitution for India by a Constituent Assembly the following resolution was moved in the Central Legislative Assembly by S.Satyamurthy:

this Assembly recommends to the Governor-General-in-Council

to convey to the Secretary of State for India and to the British Government the opinion of the House that the Government of India Act, 1935, in no way represents the will of the Nation and is wholly unsatisfactory and should be replaced by a Constitution framed by a Constituent Assembly elected on the basis of adult franchise.”

“………

that

3.15 The need for constituting a Constituent Assembly was again emphasized on 15 th November 1939 by Rajagopalachari, the Premier of Madras Province, through an official press statement issued from Fort St.George.

3.16 In the Harijan, dated 19 th November 1939, a significant article by Mahatma Gandhi appeared voicing, for the first time, his emphatic view on the urgent need for framing a Constitution for India.

3.17 In 1945, World War II ended. The Conservative Party headed by Winston Churchill – an enemy of India – got defeated in the General Elections, ensued then. The Labour party, headed by Mr.Clement Attlee

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

won the elections and came to power. He became the Prime Minister of England. He made an appeal to the Indian people this way:-

“”to join together in a united effort and work out a Constitution which the majority and minority communities accept as just and fair, and in which both the Princely States and Provinces could take their place…… ”

3.18 On September 19, 1945, Election to the Provincial Assemblies was announced. By January 19, 1946, Elections for all the 11 provincial assemblies in India were conducted. This was nearly 20 months before India became free.

3.19 In the meantime, a British Parliamentary delegation came to India. The delegation toured India between January 1, 1946 and February 8, 1946. The delegation got convinced that there was urgent need to transfer power to India and advised British Government accordingly.

3.20 The Prime Minister, Clement Attlee, announced on February 19, 1946 in the House of Commons that a “Cabinet Mission” consisting of three members of the British Cabinet would come to India.

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

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

(1) A Constituent Assembly to be created without any delay ; (2) The demand for Pakistan by the Muslim League was not to be

(3) An interim Government was to be formed immediately to govern India.

conceded;

3.23 The Cabinet Mission did not favour the suggestion of constituting a Constituent Assembly by members regularly elected through adult franchise as such constitution is likely to result in undue delay.

3.24 Consequently, the Mission suggested allotment of one seat for a population of one Million. The suggestion was accepted by the Indians.

3.25 Each Province was directed to send members to the Constituent Assembly accordingly. The task of electing those members was assigned to the Provincial Legislative assemblies.

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

3.28 Division of various sections comprising the States and allotment of members to each State are reflected as below:-

Section “A”

General

Muslims

1 Madras

45

4

2 Bombay

19

2

3 United Provinces

47

8

4 Bihar

31

5

5 Central Provinces

16

1

Section “B”

General

Muslims

Sikhs

1 Punjab

8

16

4

2 N.W.F.P.

Nil

3

Nil

Section “C”

General

Muslims

Sikhs

1 Bengal

27

33

Nil

2 Assam

7

3

Nil

3.29 The modality of sending members from the Princely States was to be decided later.

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

3.31 Quite unexpectedly, on December 6, 1946, the British Government issued a statement in support of the stand taken by the Muslim League.

His Majesty’s Government said,- “Should a Constitution come to be formed by the Constituent Assembly in which a large section of Indian population has not been represented, His Majesty’s Government will not contemplate forcing such a Constitution upon any unwilling part of the country.”

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

3.33 His Majesty’s Government made a sudden announcement on February 20, 1947, from London. The statement said,

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

3.34 As a result of the statement of the British Government, the Muslim League’s stand got hardened. It publicly announced that it would not join the Constituent Assembly. The League pressed for another Constituent Assembly for “Muslim India”.

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

3.36 On June 3, 1947, Viceroy Mountbatten announced with the concurrence of Indian leaders and approval of His Majesty’s Government, what was known as the Mountbatten Plan. As per this Plan, India was to be partitioned. Pakistan thus became a reality.

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

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

3.39 India attained independence on August 15, 1947. The Constitution came into force on January 26, 1950.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

4.

MARCH OF LAW IN THE MATTER OF RESERVATION

4.1

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

4.2

When the Constitution came into force, trouble and turmoil started among the communities regarding reservation. The hierarchy of higher

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

1951.

4.3

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

4.4

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

4.5

Chronology of cases

4.5.1

State of Madras v. Champakam Dorairajan [AIR1951 SC 226=(1951)1 SCR 525]

This is the first case which arose on reservation after the commencement of Constitution of India in the year 1950. Even prior to the commencement of the Constitution in the year 1950, there was a Communal G.O. in the then Madras State providing for reservation to

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

certain castes and communities for admission into professional courses like Medicine and Engineering. One Champakam Dorairajan challenged the communal G.O. as ultra vires the provisions of the Constitution. The communal G.O. was in fact struck down by a Bench of the High Court and later confirmed by the Supreme Court. Thereafter it was found out that the petitioner Champakam Dorairajan who initiated the case challenging the G.O. was not at all an applicant seeking admission into medical course. She, as a matter of fact, fabricated the case as if she was a candidate seeking admission into medical course and because of reservation having been provided to certain castes and communities on communal basis, she was unable to get admission in medical course as being a person belonging to a forward community though she scored high marks than those of selected candidates.

Thanthai Periyar created a very great stir and commotion in the State of Madras and consequently there was a mass upsurge in the State. Jawaharlal Nehru, the late lamented Prime Minister of India, in rather a bid to quell the agitation and satisfy the people of Tamil Nadu, introduced the first amendment to the Constitution in the year 1951 by insertion of Clause 4 of Article 15 which prescribes, “nothing in this Article or in clause 2 of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.

4.5.2 Budhan Chowdary vs. State of Bihar [AIR 1955 SC 191]

In this case, the Supreme Court laid down two important propositions as the test to be satisfied to be a valid classification under Article 14.

(i) There must be an intelligible differentia as to those who are included within the class and those who are excluded out of it. (ii)This intelligible differentia must have a rational nexus to the object that is sought to be achieved.

So unless and until a classification satisfied both these tests, it will not be a valid classification.

4.5.3 M.R.Balaji vs. State of Mysore [AIR 1963 SC 649]

The dictum as below had been laid down:-

(1) Caste cannot be the only basis for classification to ascertain the socially and educationally backward classes of persons.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(2) A classification within classification viz., most backward class – is not possible. (3) Reservation cannot be made for the majority of seats i.e., more than fifty per cent of seats. (4) Social and educational backwardness must be comparable in its backwardness to that of scheduled castes and scheduled tribes.

Subsequent to the decision in M.R.Balaji, the Mysore Government has completely given up the caste factor. Only economic factor or profession coupled with income was taken as the principle.

4.5.4 Chitraleka vs. State of Mysore [AIR 1964 SC 1823]

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

4.5.5 P.Rajendran vs. State of Tamil Nadu [AIR 1968 SC 1012]

The Tamil Nadu Government reserved seats adopting “District-wise Classification”. The Supreme Court said that District-wise classification was unconstitutional.

4.5.6 A.Periyakaruppan vs. State of Tamil Nadu [(1971) 1 SCC 38]

Tamil Nadu was divided into various Units like Madras University, Madurai University, etc. The Supreme Court said that Unit-wise classification was unconstitutional.

4.5.7 K.S.Jayashree vs. State of Kerala [AIR 1976 SC 2381]

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

The Government of Tamil Nadu, in 1978, fixed the economic criteria like that if a person’s gross salary income exceeds Rs.9,000/- per annum during the financial year ending 31 st 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 Hon’ble Mr.Justice P.R.Gokulakrishnan, Mr.Justice S.Mohan, upheld the validity of the G.O., while Hon’ble Mr.Justice V.Ramasamy recorded a discordant note of dissent and said that “a classification must be definite” and a person must not be permitted on his volition to choose his class.

4.5.8 K.C.Vasanth Kumar vs. State of Karnataka [1985 Supp SCC 714],

This was a Constitution Bench decision. The main purpose of this case was to give a guideline to various States as to what is the criteria that must be adopted for determining the socially and educationally backward classes of persons.

Each of the five Judges gave their own separate but independent judgments.

Justice E.S.Venkataramaiah elaborately considered as to why this necessity arose for reservation of backward classes and said, “perhaps, not all inequalities can ever be rectified and it is certain that some can be rectified only by creating new inequalities and new grievances.” By strict application of general equality what would be the result; it will result in permanent injustice or permanent inequality. This sort of a proposition was first enunciated by the Permanent Court of International Justice in the famous case of Minority Schools in Albenia etc. In that case, the Permanent Court of International Justice held that the application of perfect equality may result in inequality. Therefore protection is given in the form of reservation. It has been termed as “protective discrimination” or “compensative discrimination” and Justice Venkataramaiah coined a new word “result-oriented discrimination”. Then, such a competition must be fair. Not only it must be free but it must also be fair. The competition to be fair, we must have to give certain weightage or certain handicaps or certain reservations for those persons who are hailing from such socially or educationally backward classes of persons and that is why the classification or reservation is provided under the Constitution. While discussing this issue, Justice Venkataramaiah said, “for generations, i.e., for thousands of years, some communities have been kept in the dark and they were not permitted to learn.” Such a situation

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

cannot be rectified in a short span of forty or fifty years but it has to go on for a number of years till the State comes to a conclusion that all of them have attained certain amount of advancement. Then, he says, “inalienable rights cannot be earned posthumously.” “Social injustice always balances its books with the red ink”. What he means by saying so is that if we do not take proper protection or consideration, it will result in revolution. According to him, caste is a relevant factor for consideration in determining the backwardness of a class or caste.

Justice Chinnappa Reddy in his judgment said that caste is a very deep- rooted idea in our Indian society and it has traversed even the barriers of religion. In our community, there are certain Christian Nadars, Christian Khammas, Christian Reddis, and so on. Even after conversion, caste does not cease to follow them and therefore caste in our system cannot be abolished even when we wish to abolish caste completely. Justice Chinnappa Reddy said that what is contemplated by economic criteria is “class poverty” and not “individual poverty”. So before declaring a particular community as a socially and educationally backward class, one has to take all other considerations along with economic criteria and then come to a conclusion and if some are above the average or even compared to forward communities, those persons cannot be eliminated from the categories of backward classes.

Sen.J., said that we cannot take economic criteria as such. Caste must also be taken into consideration as a relevant test.

Justice Desai said that economic criteria shall be applied and such economic criteria shall be the “load bearer”.

Chandrachud C.J., did not give any judgment as such, but he had laid down five propositions:

(i)

reservation in favour of Scheduled Castes and Scheduled Tribes must continue as at present for a further period not exceeding fifteen years;

(ii)

the “means test” i.e., test of economic backwardness ought to be made applicable even to Scheduled Castes and Scheduled Tribes after the period of fifteen years;

(iii)

in so far as other backward classes are concerned, two tests shall be conjunctively applied – one is, they should be comparable to Scheduled Castes and Scheduled Tribes in the backward classes and the other is, they should satisfy the “means test” that the Government may lay down;

(iv)

the policy of reservation in employment should be reviewed every five years;

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(v) for Scheduled Castes and Scheduled Tribes the present system shall continue for another fifteen years. Once these fifteen years are completed, it will be fifty years. Thereafter, even for the Scheduled Castes and Scheduled Tribes, “economic criteria” should be applied.

Justice Chinnappa Reddy said that there may be classification within classification or there may be a classification within the backward class as backward class or most backward class.

These three-Judges out of the five Judges held that caste can be the basis of classification. One of the Judges said that cast cannot be the basis of classification.

The propositions laid down by the Chief Justice lack the basis of any rationale for the propositions so laid down therein and therefore those propositions cannot at all be stated to be borne out of that judgment.

Thus the Supreme Court, by a majority, held that caste can be the basis of backwardness.

4.5.9 Indra Sawhney vs. Union of India [1992 SCC(L&S)Supp 1=1992 Supp(3)SCC 217]

This case, popularly known as the “Mandal Case”, is a nine-Judge Bench decision of the Supreme Court. The following propositions were laid down:

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(ii)

The view that a community or class of people to be classified as backward class must be comparable of its backwardness to that of backwardness of Scheduled Castes and Scheduled Tribes has been rejected;

(iii)

Reservation at the stage of promotion has been held to be unconstitutional and reservation at the stage of initial appointment alone is permitted; [This sort of a holding of the Supreme Court has been set at naught by the insertion of clause (4A) under Art.16 by the Constitution (Seventy-seventh Amendment) Act, 1995, section 2 w.e.f. 17/6/1995 and clause (4B) by the Constitution (Eighty first Amendment) Act, 2000, section 2 w.e.f. 9/6/2000]

(iv)

Unless the creamy layer is excluded from such backward classes, no reservation can be made;

(v)

Economic criteria alone cannot determine backward class;

(vi)

Concept of creamy layer cannot at all be extended to Scheduled Castes and Scheduled Tribes;

(vii)

Art.16(4) permits classification of backward classes and more or most backward classes;

(viii)

Government of India may specify the services and posts to which the rule of reservation shall not apply;

(ix)

In Tamil Nadu, reservation in favour of backward classes in the services of the State cannot continue beyond 19/5/1993 unless creamy layer is excluded.

(x)

While fifty per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting in those areas might, on account of their being out of the main stream of national life and in view of the conditions peculiar to and characteristic of them, deemed to be treated in a different way, some relaxation of strict rules may become operative. This being so, extreme caution has to be exercised and a special case made out.

4.5.10 M.Nagaraj v. Union of India [AIR 2007 SC 71 = (2006) 8 SCC 212]

This is a judgment by the Constitution Bench of the Supreme Court comprising of Y.K.Sabharwal, C.J., and K.G.Balakrishnan, S.H.Kapadia, C.K.Thakker and P.K.Balasubramanyan, JJ. S.H.Kapadia, J, [as His Lordship then was], spoke for the Bench.

In this case, the constitutional validity of the Constitution (Seventy seventh Amendment) Act, 1995, Constitution (Eighty first Amendment)

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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;

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

(8) Art.16(4) is enacted as a remedy for the past historical discrimination against a social class; (9) Art.16(4A) and (4B) are both inspired by observations of the Supreme Court in Indra Sawhney’s case; (10)Art.16(4A) and (4B) are enabling provisions and they are permissive in nature; they leave it to the States to provide for reservation; (11)If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters under Art.16(4) and Art.335, then the Supreme Court may certainly set aside and strike down the legislation; (12)The State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotion. However, if they wish to exercise their discretion and make reservation in promotion,

States have to collect quantifiable data showing the backwardness of the class and inadequacy of representation of that class in public employment, keeping in mind maintenance of efficiency as indicated by Art.335; (13)Every discretionary power is not necessarily discriminatory. Equality is not violated by mere conferment of discretionary power.

It is violated by arbitrary exercise by those on whom it is conferred.

This is the theory of “guided power”. This theory is based on the assumption that in the event of arbitrary exercise by those on whom the power is conferred, the same would be corrected by the courts. This is the basic principle behind the enabling provisions which are incorporated in Art.16(4A) and 16(4B);

(14)Art.16(4) is not an exception to Art.16(1); rather, the two operate in different classes. The words “nothing in this Article” in Art.16(4) represent a legal device allowing positive discrimination in favour of

a class;

(15)Art.16(4) has to be construed in the light of Art.335. Therefore, further limitations on the discretion of the Government in the matter of reservation under Art.16(4) as well as Art.16(4A) come in the form of Art.335; (16)Secularism, democracy, reasonableness, social justice, etc. are overarching principles which provide linking factor for principle of fundamental rights like Arts.14, 19 and 21. They pervade all enacted laws and stand at the pinnacle of the hierarchy of constitutional values and are beyond the amending power of Parliament under the Constitution’ (17)The theory of basic structure is the only structure by which the validity of Constitutional amendment is to be judged. The doctrine of basic structure has been essentially emanated from the German Constitution. Therefore it will be useful to look at common constitutional provisions under German law which deal with rights, such as, freedom of press or religion, which are not mere values,

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

applied and this is the basis of the working test evolved by Chandrachud,J. in the Election case; (24)There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and juridical relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law.

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

This is a decision by the Constitution Bench of the Supreme Court comprising K.G.Balakrishnan, CJ., and Dr.Arijit Pasayat, C.K.Thakker, R.V.Raveendran and Dalveer Bhandari, JJ.

The constitutional validity of the Constitution (Ninety third Amendment) Act, 2005 and Central Educational Institutions (Reservation in Admission) Act, 2006 [Act 5 of 2007] was challenged. The Constitution Bench, after taking into consideration the various projection of hues of views of Mr.Ashoka Kumar Thakur, the petitioner who appeared in person and of very many learned Counsel, ultimately passed an order as reflected below:-

Order of the Court

668.The Constitution (Ninety-third Amendment) Act, 2005, is valid and does not violate the basic structure of the Constitution so far as it relates to the State-maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-third Amendment) Act, 2005 would be constitutionally valid or not so far as private unaided educational institutions are concerned, is not considered and left open to be decided in an appropriate case. Bhandari, J. in his opinion, has, however, considered the issue and has held that the Constitution (Ninety-third Amendment) Act, 2005 is not constitutionally valid so far as private unaided educational institutions are concerned.

669.Act 5 of 2007 is constitutionally valid subject to the definition of Other Backward Classes in Section 2(g) of Act 5 of 2007 being clarified as follows: If the determination of Other Backward Classes by the Central Government is with reference to a caste, it shall exclude the creamy layer among such caste.

670. Quantum of reservation of 27% of seats to Other Backward Classes in the educational institutions provided in the Act is not illegal.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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 Hon’ble The Chief Justice, Hon’ble Mr.Justice K.S.Radhakrishnan and Hon’ble 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 19 th July, 1994.

Subsequent to the filing of the above writ petitions, Articles 15 and 16 of the Constitution have been amended vide Constitution [Ninety-third Amendment] Act, 2005, and Constitution [Eighty-first Amendment] Act, 2000, respectively, which Amendment Acts have been the subject- matter of subsequent decisions of this Court in the cases of M.Nagaraj & Ors. vs. Union of India & Ors., reported in 2006 (8) S.C.C. 212 and Ashoka Kumar Thakur vs. Union of India & Ors., reported in 2008 (6) S.C.C. 1, in which, inter alia, it has been laid down that if a State wants to exceed fifty per cent reservation, then it is required to base 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.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

Consequently, these writ petitions stands disposed of with a direction to the State Government to re-visit and take appropriate decision in the light of what is stated above. It needs to be mentioned that the interim orders passed by this Court from time to time in relation to admissions to Educational Institutions shall continue to be in force and in operation for a period of one year from today.

In the circumstances, we are not expressing any opinion on the validity of 1993 Act at this stage.

The Registry is directed to send the records and proceedings, if any, connected to these writ petitions back to the State.

4.5.13 W.P.(C) No.194 of 2006 [Exclusion of creamy layer in Tamil Nadu]

VOICE (Consumer Care Council) filed W.P. (C) No.194 of 2006 before the Supreme Court against the State of Tamil Nadu seeking for exclusion of “creamy layer from the benefit of reservation in the matter of admission to Educational Institutions and in the matter of employment under various services in the State of Tamil Nadu.

The three-Judges Bench of the Supreme Court comprising Hon’ble The

Chief Justice, Hon’ble Mr.Justice K.S.Panicker Radhakrishnan and Hon’ble Mr.Justice Swatanter Kumar passed an order on 03/01/2011 as

below:-

By this writ petition, petitioner seeks a direction to the State of Tamil Nadu to implement the directions of this Court contained in the judgment dated 16 th November, 1992, in the case of Indra Sawhney v. Union of India, in the context of identification and exclusion of the creamy layer from among the backward class communities in the State of Tamil Nadu. In other words, petitioner seeks exclusion of the creamy layer from the benefit of reservation in the matter of admission to Educational Institutions and in the matter of employment under various services in the State of Tamil Nadu.

The matter is squarely covered by our order dated 13 th July, 2010 in Writ Petition (C) No.259 of 1994 and others (including Writ Petition (C) Nos.454 of 1994, 473 of 1994, 238 of 1995 and 35 of 1996). By the said order we have directed the State of Tamil Nadu to collect and place the quantifiable data before the Tamil Nadu State Backward Classes Commission and on the basis of such data the Commission should decide the quantum of reservation.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

In the light of our order dated 13 th 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 13 th 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 13 disposed of.

th

July, 2010. Accordingly, the writ petition stands

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

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

4.8 But in the case of K.C.Vasant Kumar vs. State of Karnataka supra, which is a five Judges-Constitution Bench decision, Hon’ble 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 Sawhney’s case requires reconsideration and review by an equivalent or a larger Bench for the betterment of the society at large if law is considered to be in existence for the people and not the people for the law, to maintain its pristine glory.

4.9 The views as expressed by Justice E.S.Venkataramayya in the Bench decision in K.C.Vasant Kumar which have been pointed out earlier, requires to be reiterated to pinpoint to the outside world the sheer necessity of bringing about the beneficial and benevolent effect of a class of society which had been suppressed and oppressed for thousands of years. In the said decision, His Lordship elaborately considered as to why this necessity arose for reservation of backward classes and said, “Perhaps, not all inequalities can ever be rectified and it is certain that some can be rectified only by creating new inequalities and new grievances.” By strict application of general equality what would be the result; it will result in permanent injustice or permanent inequality. This sort of a proposition was first enunciated by the Permanent Court of International Justice in the famous case of Minority Schools in Albenia etc. In that case, the Permanent Court of International Justice held that the application of perfect equality may result in inequality. Therefore protection is given in the form of reservation. It has been termed as “protective discrimination” or “compensative discrimination” and Justice Venkataramaiah coined a new word “result-oriented discrimination”. Then, such a competition must be fair. Not only it must be free but it must also be fair. The competition to be fair, we must have to give certain weightage or certain handicaps or certain reservations for those persons who are hailing from such socially or educationally backward classes of persons and that is why the classification or reservation is provided under the Constitution. While discussing this issue, Justice Venkataramaiah said, “for generations, i.e., for thousands of years, some communities have been kept in the dark and they were not permitted to learn.” Such a situation cannot be rectified in a short span of forty or fifty

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

years but it has to go on for a number of years till the State comes to a conclusion that all of them have attained certain amount of advancement. Then, he says, “Inalienable rights cannot be earned posthumously.” “Social injustice always balances its books with the red ink”. What he means by saying so is that if we do not take proper protection or consideration, it will result in revolution. According to him, caste is a relevant factor for consideration in determining the backwardness of a class or caste.

4.10 The question as to whether a class of citizens belongs to socially and educationally backward class of people or not, falls into the arena of jurisdiction of the Backward Classes Commission constituted. It is for such a Commission to investigate such questions on the basis of the criteria involved and submit a report to the Government. It is for the State Government to accept or reject the classification so made by the Commission on the scrutiny of the report so filed. It is not for the Court to decide such a question as to whether a particular class of people is socially and educationally backward. If the Courts resort to such an exercise, it is trampling on the jurisdiction of the Backward Classes Commission and the Government. Pertinent it is to note what the Supreme Court said in Asoka Kumar Thakur’s case supra in paragraph 669 which gets reflected as under:-

669. Act 5 of 2007 is constitutionally valid subject to the definition of Other Backward Classes in Section 2(g) of Act 5 of 2007 being clarified as follows: If the determination of Other Backward Classes by the Central Government is with reference to a caste, it shall exclude the creamy layer among such caste.

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

4.12 The Supreme Court in Indra Sawhney supra stated that “backward classes” in Art.16(4) is wider than “socially and educationally backward classes” in Art.15(4). “Backward classes of citizens” in Art.16(4) takes in Scheduled Castes and Scheduled Tribes and all other backward classes of citizens including the socially and educationally backward classes; certain classes which may not qualify for Art.15(4) may qualify for Art.16(4). This is the view of five out of the nine Judges comprising the Bench.

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

4.14 Art.15(4) which prescribes that nothing in this Article or in clause (2) of Art.29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes, had been inserted in the Constitution by the Constitution (First Amendment) Act, 1951 [vide S.2]. Clause (4) of Art.15 does not specifically use any expression “reservation”, but it refers to the expression “special provision”. The special provision as contemplated in Art.15(4) was for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes and Scheduled Tribes. This provision is applicable for providing admission to such classes of people as referred to in Clause (4) of Art.15 in educational institutions and other concessions granted to them by the Government.

4.15 After the introduction of Art.15(4) in the Constitution in the year 1951, both the Articles 15(4) and 16(4) were considered to be of same effect by various decisions of the Supreme Court, in the sense, where the backward classes referred to in Art.16(4) is relatable to Scheduled Castes and Scheduled Tribes, Backward Classes and Other Backward Classes. It is for the first time in Indra Sawyney’s case the Supreme Court went to the extent of saying that the two Articles are distinct and different and in fact Art.16(4) is wider than Art.15(4). The classes of people which are coming under Art.15(4) may also come and attain the benefits of reservation in the services under the State under Art.16(4). But one thing is certain; the Scheduled Castes and Scheduled Tribes, Backward Classes and Most Backward Classes are coming under the purview of both the Articles 15(4) and 16(4). Therefore, the application of Art.16(4) in providing for reservation in the services of the State cannot at all be distinct and different for the Scheduled Castes and Scheduled Tribes on the one hand and the Backward Classes and Most Backward Classes on the other hand.

4.16 Right from the inception of the Constitution, the Scheduled Castes and Scheduled Tribes were provided with reservation in the services under the State proportionate to their population. Such being the case, it goes without saying that all socially and educationally backward classes of citizens are to be provided with reservation under Art.16(4) in the services under the State proportionate to the population of socially and educationally backward classes of citizens just like the Scheduled Castes and Scheduled Tribes are provided with reservation in the services under the State proportionate to their population. A cursory perusal of the said clause does not indicate any prescription of specific extent of reservation to be provided for in favour of backward classes which includes SC and ST in the services under the State. The one and the only restriction, if at all, it can be deciphered from the language used therein cannot be anyone other than the one relatable to inadequacy of representation in

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

the services under the State. The words or expressions viz., “not adequately represented in the services under the State” has to be ascribed the meaning. The meaning of the word “adequate” as has been given in The Concise Oxford Dictionary – The New Edition for 1990s – at page 14, runs as under :-

adequate. adj. 1.sufficient, satisfactory (often with the implication of being barely so). 2.(foll. by to) proportionate 3. barely sufficient.”

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

4.18 Two propositions were laid Sawhney’s case:-

down by the Supreme

Court in

Indra

(1) The totality of the reservation in the services under the State should not exceed 50% in normal circumstances; and it is permissible to exceed 50% in extraordinary circumstances requiring such excessive reservation;

(2) The Scheduled Castes and Scheduled Tribes are entitled to reservation in the services under the State proportionate to their population.

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

4.20 Various decisions of the Supreme Court right from M.R.Balaji’s case supra till upto Indra Sawhney’s case, create a hiatus in the matter of reservation between the Scheduled Castes and Scheduled Tribes on the one hand and the Other Backward Classes on the other hand for no fault of the latter when especially the provision applicable is one and the same viz., Art.16(4) for both of them and there being no other specific special provision providing for reservation for Scheduled Castes and Scheduled Tribes.

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

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

4.24 Some of the States such as Karnataka, Rajasthan and Maharashtra which aimed to provide reservation in excess of theoretical margin of 50% were compelled to reduce the quantum of reservation to 50% or below citing rulings of the Court.

4.25 Of course, it may be explained that Art.15(4) and Art.16(4) being an enabling rights, it will be open to the respective State Governments to provide for reservation in a particular manner. However, the dictum laid down by the Supreme Court in Indra Sawhney’s case that the reservation to be provided for OBC should be limited to the extent of percentage in such a way that totality is less than 50% and the reservation provided for SC and ST must be proportionate to their population.

4.26 All these confounding confusions could have been avoided by granting reservation benefits to SC,ST and OBC proportionate to their respective population according to the apparent tenor of Art.16(4) of the Constitution.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

5. QUALITATIVE EXCLUSION OF CREAMY LAYER – BASELESS

5.1 The vision of the nine-Judges, constituting the larger Bench in Indra Sawhney vs. Union of India [ 1992 SCC (L&S) Supp 1 = 1992 Supp (3) SCC 217] falling on “creamy layer” may now be examined by an ophthalmologist in the light thrown by ground realities and from the Constitutional angle.

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

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

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

5.5 Neither Article 15(4) nor Article 16(4) speaks of matters relating to creamy layer. Article 15(4) simply states that “Nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”, whereas Article 16(4) speaks of reservation in favour

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

5.6 In Article 16(4) the expression “backward class” alone is referred to and not Scheduled Castes and Scheduled Tribes. However, it has been interpreted by the Supreme Court that the expression “backward class”

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

found therein includes backward classes, most backward classes, Scheduled Castes and Scheduled Tribes. The one and only restriction imposed therein is inadequacy of representation to all those classes in the services of the State.

5.7 If the founding fathers of the Constitution had originally intended to provide for creamy layer by the insertion of a clause in the said Article, they could have incorporated it, when especially the said Article was debated in the Constituent Assembly elaborately.

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

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

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

5.11 The puzzling factor is that even in the judgment of the nine-Judges Bench of the Supreme Court in Indra Sawhney case, certain portions of the Mandal report has been extracted, which, in fact, point out in no uncertain terms that the OBC entered into service of the Central Government right from 1950 to the time of Mandal report only to an extent of about 14%, leaving a balance of 13% (27% minus 14% = 13%) yet to be filled up even after the elapse of nearly 42 years. Such being the case, one is at a loss to understand as to where is the necessity for the application of creamy layer to weed out the higher-ups in the OBC who were said to be enjoying the benefit of reservation exclusively to themselves leaving nothing to the OBC at the bottom level. The further astonishing fact is that in the Central services, there was no reservation

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

at all right from 1950 till upto the judgment by the Supreme Court in Indra Sawhney case in the year 1992. In such state of affairs, how on earth the Supreme Court had come to the conclusion that the top notches in the OBC had been enjoying the benefit of reservation to themselves to the utter exclusion of other OBC at the bottom level impelling the Supreme Court to resort to incorporation of creamy layer concept in determination of the OBC. If the top notches from among OBC snatched away the entirety of reservations to themselves to the exclusion of the other OBC – as a matter of fact – one has to accept and welcome the application of creamy layer in the matter of recruitment in the services of the State. The question is, whether such a thing did happen in reality?

5.12 The information disclosed before the Members of the Parliament on 18.11.2010 in answer to a Rajya Sabha Question regarding representation of SC/ST/OBC in employment under the Government of India, contains the following data:

 

Number of Personnel in service of Government of India

 

Group

Total

SC

ST

OBC

No. of

 

Employees

Number

%

Number

%

Number

%

A

97951

12281

12.5

4754

4.9

5331

5.4

B

140223

20884

14.9

8004

5.7

5562

4.0

C

1822326

286573

15.7

127871

7.0

147327

8.1

D

706170

138466

19.6

48728

6.9

35468

5.0

(Excluding

Sweepers)

Sweepers

77295

39774

51.5

4621

6.0

2548

3.3

Total

2766670

458204

16.56

189357

6.84

193688

7.00

(Excluding

Sweepers)

Total

2843965

497978

17,51

193978

6.82

196236

6.90

(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.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

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

5.15 The LPG policy being followed since 1990s came as a protector of hierarchy of higher castes. The preference and focus of higher castes have changed from the public entities to global and private entities. Migration of hierarchy of higher caste to the private institutions / establishments has been witnessed from the data provided by the Government schools and recruitments for the public services under the State. Opening up of flood gates for investment in various industries to private sector / foreign investors favoured generation of more employment with better payment and increase in number of seats in educational institutions. For instance, the data from Employees Provident Fund Organisation shows, in Tamil Nadu, the number of private sector employees are 7 to 8 times more than those employed in public service under the State. It is alleged that since the private sector or foreign investors were not compelled to follow the reservation, major share of the seats or employments in private sector go to the hierarchy of higher castes. Truly, the era of liberalisation favours extension of various infrastructure facilities, financial incentives and tax concessions for promotion of industries through private and foreign investors. Such

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

benefits were key factors for the profitability of the industries. The profitable operation of industries favoured increase of income of investors and enriched wages of the employees. It is also alleged that the social costs incurred in favour of private and foreign investors are not being recovered in full to benefit all segments of social groups equally.

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

5.17 In Indra Sawhney, the nine-Judges Bench of the Supreme Court raised the question as to whether “backward classes can be identified only and exclusively with reference to economic criterion?” The majority decision of the larger Bench provided an answer to the said question in the following terms which gets reflected in para 798 @ page 432:-

“It follows from the discussion under Question No.3 that a backward class cannot be determined only and exclusively with reference to economic criterion. It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion. This is the view uniformly taken by this Court and we respectfully agree with the same.”

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

5.19 SWOT gird depicted below would point out the inherent weaknesses of implementation of creamy layer in not giving any succour and benefits accruing from reservation to the backward classes of citizens, but on the contrary works to their detriment.

SWOT Analysis of the idea of Qualitative Exclusion of Creamy Layer implemented by Union Government and States / Union Territories

Strength Supreme Court judgements. Presence of hierarchy of higher castes at the planning level at Government in large numbers.

 

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.

 

Weakness

 

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.

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.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

187.Chinnappa Reddy, J., in Karamchari [Akhil Bharatiya Soshit Karamchari Sangh v. Union of India – (1981) 1 SCC 246] has expressed his view on the ceiling of reservation as follows :-

“…….There is no fixed ceiling to reservation or preferential treatment in favour of the Scheduled Castes and Scheduled Tribes though generally reservation may not be far in excess of fifty per cent. There is no rigidity about the fifty per cent rule which is only a convenient guideline laid down by Judges. Every case must be decided with reference to the present practical results yielded by the application of the particular rule of preferential treatment and not with reference to hypothetical results which the application of the rule may yield in the future. Judged in the light of this discussion I am unable to find anything illegal or unconstitutional in any one of the impugned orders and circulars……”

188.Again in Vasanth Kumar [K.C.Vasanth Kumar v. State of Karnataka – 1985 Supp SCC 714] Chinnappa Reddy,J reiterates his view taken in Karamchari in the following words : (SCC p.752, para 58)

“ We must repeat here, what we have said earlier, that there is no scientific statistical data or evidence of expert administrators who have made any study of the problem to support the opinion that reservation in excess of 50 per cent may impair efficiency.”

189.x

x

x

x

190.It should not be out of place to recall the observation of Hegde, J in Hira Lal [State of Punjab v. Hira Lal (1970) 3 SCC 567] observing: (SCC p.572, para 8) “The extent of reservation to be made is primarily a matter for the State to decide. By this we do not mean to say that the decision of the State is not open to judicial review. ….The length of the leap to be provided depends upon the gap to be covered.” (emphasis supplied)

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

6.3 Sawant, J. in the same case expressed his views in para 518 (page 256) which reads as follows:-

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

6.4 It is worthwhile to extract what has been laid down in Indra Sawhney as respects the extent of reservation which reflects as below:- [para 810

p.439]

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

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

6.6 Article 16(4), in its present form, forms part and parcel of the original Constitution as drafted by the founding fathers, provides for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. “State” as referred to therein includes the Government and the Parliament of India and the Government and the Legislatures of each of the States and all local and other authorities within the territory of India or under the control of the Government of India as has been stated in Article 12 of the Constitution. As such, it is crystal clear that it is legally feasible or possible by the Government of India at the Centre as well as the States and other authorities mentioned therein to make laws for the reservation of appointments or posts in favour of any backward class of citizens which is not adequately represented in the services under the State. A cursory perusal of the said clause does not indicate the prescription of the extent of reservation to be provided for in favour of all the backward classes in the services

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

under the State. The one and only restriction, if at all, which can be deciphered from the language used therein cannot be anyone other than the one relatable to the inadequacy of representation in the services. The words or expressions viz., “not adequately represented in the services under the State” has to be ascribed the meaning. The meaning of the word “adequate” as has been given in The Concise Oxford Dictionary – The New Edition for 1990s – at page 14, runs as under :-

adequate. adj. 1.sufficient, satisfactory (often with the implication of being barely so). 2.(foll. by to) proportionate 3. barely sufficient.”

Such being the case, it goes without saying that it is permissible for the State for making any provision for the reservation of appointments or posts in favour of backward classes of citizens “in proportion” to their population.

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

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

6.9 Article 15(4) which has been inserted by the Constitution (First Amendment) Act, 1951, prescribes that “Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

Tribes.” Of course, nothing is traceable from the said Article regarding the extent of reservation to be provided to socially and educationally backward classes of citizens or to the Scheduled Castes and Scheduled Tribes for admission in educational institutions. The said Clause uses the expression “special provision” can be made in favour of “socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.” This sort of a provision had been utilized by the State for making reservation in favour of socially and educationally backward classes of citizens and Scheduled Castes and Scheduled Tribes for admission in educational institutions.

6.10 Article 15(5) provides that “Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.” This clause was inserted by the Constitution (Ninety-third Amendment) Act, 2005 w.e.f. 20/1/2006. This clause (5) is more or less akin to clause (4) of Article 15 – the difference being that it specifically provides that the State can make special provision by law in favour of socially and educationally backward classes of persons and Scheduled Castes and Scheduled Tribes in so far as the special provision relating to their admission in educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

classes which are socially and educationally backward and not in proportion to the entirety of the backward classes.

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

6.13 Article 330 speaks of reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People while Article 332 speaks of reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the State. These Articles speak of reservation of seats in the House of People as well as the Legislative Assemblies of the States in favour of Scheduled Castes and Scheduled Tribes proportionate to their population. Article 16(4) makes a provision for reservation of appointments or posts in favour of any backward classes of citizens which, in the opinion of the State, is not adequately represented in the services under the State. [emphasis supplied]. Article 16(4) emphasizes “not adequately represented” while Articles 330 and 332 use the expression “proportion to the …………….population”. The expression “not adequately represented” put in the negative form cannot mean anyone other than to mean “adequate representation”. Many languages in the world inclusive of the English language except a few languages like the French have different expressions to mean one and the same thing. The meaning of the expression “adequate representation” cannot at all be stated to be different in any way from the meaning “proportionate representation” if one refers to the meaning of both these expressions in the English Dictionaries. The spokesman of the majority judgment in Indra Sawhney, B.P.Jeevan Reddy, J. referred to this aspect of the matter in paragraph 807 at page 438 which reflects as under:-

807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not

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possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. ……….”

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

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

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6.15 In Ashoka Kumar Thakur v. Union of India [(2008) 6 SCC 1], “Other Backward Classes” in Section 2(g) of the Act 5 of 2007 had been clarified as follows :-

“If the determination of several backward classes by the Central Government is with reference to a ‘caste’ it shall exclude the creamy layer among such castes.” [para 669]

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

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

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7. BACKWARD CLASSES WITHOUT UNTOUCHABILITY WERE KEPT IN DARKNESS BY FOUNDING FATHERS OF INDEPENDENT INDIA

7.1 Ambedkar enrolled himself as an advocate in the Bombay High Court. He started legal practice from July, 1924.

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

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

7.4 He founded an Association for the welfare of the “outcastes”. This association was known as ‘BAHISHKRIT HITKARANI SABHA’. The main object of the Association was to eradicate the caste system from the Hindu society. Ambedkar through his Association toiled for the upliftment of the downtrodden. Consequently, the downtrodden section started adoring him. They began calling him ‘BABA SAHEB’.

7.5 A Conference of the depressed classes was convened in March 1927 at MAHAD. This Conference passed a resolution to start a movement to throw open public places of utility to all, irrespective of caste and creed.

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

7.7 This famous march of Ambedkar with his followers to the CHOWDER TANK came to be known as “MAHAD MARCH”.

7.8 In 1928, Ambedkar boycotted the boycott of SIMON COMMISSION by the Indian National Congress. The reason for this singular stand is this:

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

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

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

7.11 Such special pleading yielded good results. Prime Minister Ramsay MacDonald announced separate electorates for the untouchables on August 16, 1932. This was known as the “communal award”. Mahatma Gandhi opposed it. He announced a “fast unto death” to commence from September 20, 1932 in Poona.

7.12 However, a meeting was arranged between Mahatma Gandhi and Dr.Ambedkar on September 24, 1932 through the good offices of Sir Tej Bahadur Sapru and Sri Rajagopalachari. An agreement was signed by them the same day. This came to be known as “POONA PACT”.

7.13 Under this Pact, separate electorates, announced earlier by Ramsay MacDonald were replaced by “Joint electorates”. Besides, reservations in the Provincial Legislative Assemblies and also in the Central Legislative Assembly (later it became the Parliament) were made for Scheduled Castes.

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

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

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

7.16 Even after quitting office, Ambedkar’s fight against social injustice continued and lasted till the end of his life.

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

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7.18 It is worthwhile to note at this juncture as to how His Holiness Sri Kanchi Kamakoti Paramacharya, a venerable protector of Hinduism had a vision to save Hinduism by means of a Constitutional guarantee for its survival, flourishment, development and what not in future by inclusion of the necessary and requisite provision in the Constitution of India. Article 26 is relatable to “Freedom to manage religious affairs”. In the final form of drafting, Art.26 ran thus:-

26. Freedom to manage religious affairs.—Subject to public order, morality and health, every religious denomination or any section thereof shall have the right —

(a)

to establish and maintain institutions for religious and charitable purposes;

(b)

to manage its own affairs in matters of religion;

(c)

to own and acquire movable and immovable property; and

(d)

to administer such property in accordance with law.”

Agnihotram Ramanuja Tatachariar writes under the caption “The Ideal Prophet Of Our Age” in the book titled “Sankara and Shanmata” [Souvenir published in connection with the Conference on ‘Sankara and Shanmata’ held in Madras from June 1 – June 8, 1969, published by MLJ Office, Madras] as follows:-

“ If such a constitutional guarantee has been got for the independent running of religious institutions it is in no small measure due to the initiative of His Holiness Sri Kanchi Kamakoti Paramacharya. Originally the wording was only ‘Every religious denomination shall have the right, etc.” Nobody found any discrepancy in this wording, including the august Constitution-makers. His Holiness alone saw that this was not enough. No Hindu thinks that he is first and foremost a Hindu. He thinks only in terms of his sub-sect, e.g., that he is a Vaishnavaite, a Saivaite, a Smartha or a Saiva Sddhanthin and so on and so forth. Similarly no religious institution in India is running under the label of Hinduism. We only have Vaishnava, Saiva, Smartha, Saiva Siddhantha, etc. etc., Mutts and monastaries. So the word “religious denominations” could not have constitutional application to many of these institutions. Therefore His Holiness felt that the wording should be changed as “every religious denomination or any section thereof shall have the right, etc.” His supreme will was ultimately carried out!

In all this His Holiness remained behind the screen. But he was the one moving spirit and great political leaders, eminent lawyers, distinguished parliamentarians and experienced jurists just carried out his prophetic schemes for the maintenance of our religious belief and for the constitutional safeguard for our religious institutions. This aspect which has not seen light of the day till now deserves to be written in letters of gold in the history of our religion: perhaps also of our Constitution-making.”

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The following passages also find a place under the aforesaid caption:

“In particular I want to draw the attention of the public to two great incidents, which will, ever remain fresh in my memory.

When we were meeting the Matadhipathis throughout India, myself in company with some others had an unforgettable audience with the then Pontiff of Sri Sringeri Sarada Peetham – Poojya Sri Chandrasekhara Bharati. He was a divine personality. Though head of a Mutt, he was very often immersed in deep meditation and came to external consciousness only on rare occasions. When we called at Sringeri, as though by miracle the great Acharya came out of his deep meditation, on the very same day. He appeared before us a huge mass of divine consciousness. His very first question to us was, “Where did Shri Kamakoti Acharya perform Vyasa Puja?” We replied it was at Madhyarjuna (Tiruvidaimarudur). His Holiness Sri Sringeri Sankaracharya made glorious references about our Holiness. We narrated to him the politico-religious situation and about our Kanchi Kamakoti Paramacharya’s 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 Paramacharya’s schemes.

We returned back to Sringeri after visiting these Mutts and conveyed our gratitude to His Holiness Sri Sringeri Acharya. In turn His Holiness asked us to convey his gratitude to Sri Kanchi Kamakoti Acharya for his task towards religious revival.”

7.19 It will be interesting to note the prophetic vision of Acharya even at the time when the Constitution was in the anvil of being drafted that at some point of time political parties professing irreligiousness may come to power in some States and therefore he took effective steps to see that religion and religious institutions included in the State List be transferred to the Concurrent List. On this aspect, what Agnihotram Ramanuja Tatachariar said is relevant and the passage reads as under:-

“Another incident of great importance: Originally the Drafting Committee had included religion and religious institutions in the “State List” of the Constitution. When His Holiness Sri Kanchi Acharya’s attention was drawn to this he said “Religion of India is one. It does not differ on the basis of States. Similarly the religious institutions also belong to the whole of India. Therefore this item should be transferred from the State List”. Though His Holiness did not put it in words, it is possible that he also saw prophetically

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that someday even parties professing irreligiousness may come to power in some of the States in which case religious institutions would have to suffer very badly.

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

7.20 As such, the dignitaries of Muslims, hierarchy of higher castes and Scheduled Castes had effective representation in the Constituent Assembly as well as the Drafting Committee of the Constitution and protected their interest in the best of fashion possible and there was none belonging to the backward classes even to air their voices for the protection of their interest.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

8. JUDICIAL INTERVENTION – A STUMBLING BLOCK IN CAPACITY BUILDING OF BACKWARD CLASSES AND WEAKER SECTIONS OF THE SOCIETY

8.1 Unwarranted thinking it is, in many quarters – without there being any exception – commitment of the Constitution is for the abolition of castes and not for its perpetuation and reservation, if continued, would perpetuate the existence of caste system instead of its abolition in Indian society.

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

8.3 The expression “Scheduled Caste” is not at all a caste in the ordinary sense of the term. It is a caste created by the Constitution by Article 366(24) which prescribes:

“Scheduled Castes” means such castes, races or tribes or parts or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution”

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

“Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution.

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8.5 Article 341 empowers President of India to specify the caste, races or tribes, or parts of or groups within such castes, races or tribes which shall, for the purposes of this Constitution, be deemed to be Scheduled Castes in relation to that state or Union Territory as the case may be. The Order as made by the President is final and the same is not subject to challenge by Superior Courts of jurisdiction. Once the Notification is issued, even the President has no power of exclusion or inclusion from the lists of Scheduled castes so notified. However, the power of inclusion or exclusion to the list of Scheduled castes so notified, inheres in favour of the Parliament as specified in sub-clause 2 of Article 341. It prescribes:

“Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

Similar provisions are traceable to Scheduled Tribes under Article 342.

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

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the vacancies of the year in which they are being filled up for determining the ceiling of 50% of reservation of total number of vacancies in that year under clause (4B) of Article 16.

8.7 The Government of India during British Regime was following since 1925, reservation for appointments in Government service for the redress of communal inequalities. The policy so adopted failed to secure due share of appointments to Muslims and consequently it was contented that this sort of a position cannot at all be a remedied unless a fixed percentage of vacancies is reserved for Muslims and other Minorities. Consequently it was decided that 25% of all vacancies to be filled by direct recruitment of Indians, will be reserved for Muslims and 8- 1/3% for other minority communities. In order to secure fair representation for the depressed classes, duly qualified members of those classes were nominated to a public service; even though recruitment to that service was being made by competition. This sort of an information, we are able to gather from Appendix XXIII – Government of India Resolution of 1934 on Communal Representation of Minorities in the services, Dated 4 th July 1934.

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

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

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

8.11 On the basis of proportion which the population of the Scheduled Castes bears to the population of the other communities entitled to a share in the unreserved vacancies, the Scheduled Castes would entitle to 12.75% out

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

8.12 8-1/3% of all vacancies to be filled by direct recruitment of Indians in the Central and Sub-ordinate Services to which recruitment is made on all India basis will be reserved for Scheduled Castes candidates. When recruitment was made by open competition and Scheduled Castes candidates obtain fewer vacancies than were reserved for them, the difference would, if possible, be made up by the nomination of duly qualified candidates of those castes.

8.13 The information as above is culled out from the Appendix XXIV, Government of India Resolution of 1943 on Representation of the Scheduled Castes in the Services, New Delhi, the 11 th August 1943.

8.14 The Indian Constitution was drafted according to the Cripps proposals published on March 29, 1941.

8.15 Convention has no place in a place where there is a written constitution. England, for example, is not having a written constitution. There, convention plays a dominant role in the prescription of the procedure and the policy to be persuaded by the Parliament of England.

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

8.17 Alas! In the Constitution of India, no provision is traceable for reservation for Scheduled Castes with regard to services in the State or for admission into educational institutions to be given to them proportionate to their population.

8.18 Clause 4 of Article 15 providing for reservation to Backward Classes of citizens, Scheduled Castes and Scheduled Tribes uses the compendious expression namely, “for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

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

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

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

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

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

8.23 The Supreme Court categorically declared that Creamy Layer is not at all applicable to Scheduled Castes and Scheduled Tribes. While saying so, the Supreme Court rather appears to be oblivious of the sanguine provisions adumbrated under Article 341(2). According to the clause (2) of the said Article, the power of exclusion or inclusion specially inheres in favour of the Parliament, though the Supreme Court does not have any power of inclusion or exclusion of Scheduled Castes. Creamy layer is

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after all a different phraseology for “exclusion”. To say that Creamy layer is not applicable to Scheduled Castes and Scheduled Tribes, as has been said by the Supreme Court, is contrary to sub-clause 2 of Article 341. Creamy layer which is nothing but exclusion can be made applicable to Scheduled Castes and Scheduled Tribes by the enactment of a law by the Parliament if circumstances warrant for such exclusion.

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

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and Scheduled Tribes either for the purpose of Article 15(4) and Article 15(5) or Article 16(4), 16(4A) and 16(4B).

8.25 There is no provision in the Constitution to provide for exclusion (Creamy layer) of any of the class or communities from the list of Backward Classes as already decided. If at all, if there is any exclusion from the list of Backward Classes as already decided, the power vests with the State alone for doing so. It is not constitutionally permissible for the Supreme Court to snatch away such a power, inhering in favour of the State, to legislate on Creamy layer (exclusion) in its judgement and make it operative as an amendment to the Constitution and issue a direction to the State to formulate creamy layer and exclude such creamy layer from the list of Backward Classes. The Supreme Court, as a matter of fact, under the façade of adjudication actually snatched away the legislative power of the State in defining Backward Classes which has already been decided by the State on the application of relevant criteria and say backward class is one as has been decided by the State or Central Government on the acceptance of report of the relevant commission minus creamy layer.

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

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

8.28 Indian Constitution is a goal oriented, but not right oriented one as in United States of America. The goal of the Constitution had been clearly spelt out in its preamble. The preamble provides,

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“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation”

8.29 The word “fraternity” is not a mere rhetoric, but is an instrument for assuring (a) the dignity of the individual and (b) the unity and integrity of the Nation. It has a two-fold application – with reference to the “backward classes” and the religious minorities.

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

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

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

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

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

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

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

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

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

8.38 The late lamented Prime Minister Indira Gandhiji brought in 42 nd amendment of the Constitution in 1976 in and by which, primacy was given to Part IV in case of any conflict arising between Part III and Part IV. This amendment as has been brought in 1976 was abrogated by 44 th amendment of the Constitution by Janatha Government, which came to power then. But for the repeal effected by 44 th amendment brought in by Janatha Government, cocksure it is, this Egalitarian set up of a society could have been established by now.

8.39 Granting justiciability to Part III and rendering lip-service to Part IV that it is more fundamental than the fundamental rights by the implementing authorities would tantamount to dupe dope and make people live on promises.

8.40 The implementing authorities created a stumbling block for the establishment of an Egalitarian set up of society by propounding a basic

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

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

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

8.43 The theory of basic structure as propounded is in all fours contrary to the Constitutional canon, “the generation must be given a choice to have its own Constitution”.

8.44 Constitution is a dynamic document and not a static one. It has to be changed to meet the modern needs of the society marching towards the

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path of civilization. It is not a Qur'an to be unchanged as God given one. It has to be changed meeting the requirements of the society. The Constitution as enacted by founding fathers can not at all be stated to remain the same in the sense that it was, is and will be the Constitution forever.

8.45 What is said in paragraphs 6.10 to 6.21 under the title “Social justice, merit and privileges” in Chapter VI of Government of India Report of the Backward Classes Commission, first part (Volumes I to II) 1980 is relevant and they reflect as under:

6.1 Equality before the law is the most precious democratic right of an Indian citizen and it is enshrined in Article 14 of the Constitution of India. This right is further elaborated and made specific in Article 15, 16 and 29 of the Constitution. These Articles prohibit discrimination against any citizen on grounds only of religion, race, caste, sex, language or place of birth, whether

in

respect of employment or admission to educational institutions, or access

to

public places, etc.

6.2 The above Articles constitute the bed-rock of a citizen s fundamental

rights. But by ensuring equality of opportunity to all citizens in respect of educational and employment opportunities, we may he ignoring the special problems of some backward sections of our people who have suffered from social, cultural, educational and economic deprivation for hundreds of years.

On the face of it the principle of equality appears very just and fair, but it has

a serious catch. It is a well-known dictum of social justice that there is

equality only amongst equals, To treat unequals as equals is to perpetuate inequality. When we allow weak and strong to compete on an equal footing, we are loading the dice in favour of the strong and holding only a mock competition in which the weaker partner is destined to failure right from the start. This approach does ensure the survival of the fittest . But we must also note that survival of the fittest is the law of the jungle.

6.3 The humanness of a society is determined by the degree of protection it

provides to its weaker, handicapped and less gifted members. Whereas in a. jungle everybody fends for himself and devil takes the hind-most, in a civilized society reasonable constraints are placed on the ambitions and acquisitiveness of its more aggressive members and special safeguards provided to its weaker and more vulnerable sections. These considerations are basic to any scheme of social justice and their neglect will brutalize any human society.

In a limited sense, the right to social justice may be defined as the right of the weak, aged. destitute, peer, women, children and other under privileged persons, to the protection of the State against the ruthless competition of life, It seeks to give the necessary adventitious aids to the underprivileged so that they may have the equal opportunity with the more advanced in the race of life. It is a bundle, of lights; in one sense it is carved of other rights; in another sense it is a preserver of other rights. It

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is the balancing wheel between haves and have-nots. (Social Justice and Law by Shri Justice K. Subba Rao, National, New Delhi)

6.4 Our Constitution markers were fully alive to the need for providing

safeguards to the weaker sections of society. Whereas Articles 15, .16 and 29 create the overall impression of according equal access to all citizens to educational, employment and other facilities, Clause (4) of Article 16 stipulates (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts it favour of any backward class of citizens which, in the opinion of the State, is net adequately represented in the services under the State.

6.5 Subsequently as a result of the Constitution (First Amendment) Act,

1951, a similar clause was added to Article 15 also. Thus, it will be seen that Clauses (4) of both Articles 15 and 16 make special provisions for the advancement of any socially and educationally backward classes. Further, Article 46 enjoins upon the State the obligation to promote with special care

the educational and economic intereST of the weaker sections of the people.

6.6 On the face of it, it may appear that special safeguards provided to

weaker sections under Articles 15(4) and 16(4) are in conflict with the fundamental rights to education, employment, etc. It has been forcefully argued that the equality of opportunity and treatment granted to every citizen under Articles 14, 15, 16 and 29 of the Constitution is greatly undermined by Clauses 4 of Articles 15 and 1 6, which enable the State to make special provisions for the advancement of weaker sections of the society. According to this line of reasoning these two Clauses give the State overriding powers to greatly dilute the principle of equality before the law contained in Article 14.

6.7 Here the real conflict arises from the clash between the intereST of the individual versus that of society. The Fundamental Rights are primarily concerned with the rights of the individual. Claims of society do not have the same sort of immediacy and urgency as the claims of individuals. Wrongs suffered by individuals stick out much more pointedly than the wrongs suffered by the society. In view of this the exceptions contained under Articles 15(4) and 16(4) appear to confer a privileged status on backward classes status seems out of line with the over all scheme of Fundamental Rights. It is only under Directive Principles of the State Policy that tile claims of society in general are accorded due recognition.

6.8 By now the conflict between the Fundamental Rights and Directive

Principles of the State Policy has become a very familiar theme of Parliamentary debates and judicial pronouncements. This conflict was very vividly highlighted by Pandit Nehru during the Parliamentary debates on the Constitution (First Amendment) Bill, 1951. He stated,

The Directive Principles of State Policy represent a dynamic move

towards a certain objective. The Fundamental Rights represent- something static, to- preserve certain rights which exist. Both again are

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

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.

The result is that the whole purpose behind the Constitution which

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 upward- mobility tech they can never, catch up with the more fortunate and most disadvantaged people never even get access to the supposedly equal

opportunity

Equality of opportunity is also an asocial principle, because it

ignores the many invisible and cumulative hindrances in the way of disadvantaged; in fact, unless the children of the poor are taken from their parents at birth and brought up in middle class homes, most are condemned to inequality of opportunity

6.11 Equality of treatment, observes Gans, may be interpreted in two ways.

On the one hand, it means treating people as roughly equal in impersonal social intersections On the other hand, it means providing people with the same resources regardless of their current resources of socio-economic position; used in this sense, equality of treatment suffers from the same drawback as equality of opportunity for to treat the disadvantaged uniformly

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with the advantaged will only perpetuate their disadvantage. Even in the courts which pride themselves on equality of treatment before the law, the defendant who can afford only a poor or overworked lawyer will not often obtain equal treatment from the judge.

6.12 In view of the above considerations, Gans observes, Consequently, the

only truly egalitarian principle is equality, of results, which may require Un

equal opportunity or treatment for the initially disadvantaged so that they eventually wind, up equal in resources or rights.

6.13 If a tree is to be judged by its fruits, equality of results is obviously the

most reliable test of our aspirations and efforts to establish a just and equitable order. A formidable task under any circumstance, it becomes particularly so in a society which has remained segmented in a finely graded caste hierarchy for centuries.

6.14 In fact the essence of Fundamental Rights itself remains unrealised

unless proper conditions are created for protecting the legitimate rights of the under-privileged. Soon after Independence every State enacted land reforms legislation, giving security of tenure to tenants and tillers, placed a

ceiling on land holdings, etc

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:

As the weak and poor tenants and cultivators

unless @

adventitious aids are given to the under privileged people,

it would be impossible to suggest that they have equal opportunities with the more advanced people. This is the reason and the justification for the demand of social justice that the under-privileged citizens of the country should be given a preferential treatment in order to give them an equal opportunity with other more advanced sections of the community.

6.15 In this connection nothing generates so much heat and genuine indignation as the concept of merit . Whereas nobody objects to the grant of special educational facilities and various other concessions to the backward classes, the provision of a reserved quota in educational institutions or services for members of Scheduled Castes, Scheduled Tribes or Other Backward Classes provokes sharp reaction. The advocates of merit find it very unfair when a depressed class student securing 45% marks gets

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admission to a medical college in preference to a student from the general quota obtaining 70% marks. The resentment is much greater when a lower ranked backward class competitor is selected in preference to a much higher ranked general quota counterpart to an All India Service.

6.16 This sort of reaction is based on two considerations. First, it hurts a

person s sense of fair play to see that a more meritorious candidate has been left out in preference to a less meritorious person on purely extraneous grounds. Secondly, it is argued, that by selecting candidates with lower merit against reserved quota vacancies; the nation is being deprived of the services o the best talent that is available to it.

6.17 This line of argument, though plausible on the face of it, suffers from a

serious fallacy regarding the nature of merit . We shall try to illustrate, this point with a homely example. Mohan comes from a fairly well off middle class family and both his parents are well educated. He attends one of the good public schools in the city which provides a wide range of extra-

curricular activities. At home, he has a separate room to himself and he is assisted in his studies by both the parents. There is a television and a radio set in the house and his father also subscribes to a number of magazines. In the choice of his studies and, finally, his career, he is continuously guided by his parents and his teachers. Most of his friends are of similar background and he is fully aware of the nature of the highly competitive world in which he will have to carve a suitable place for himself. Some of his relations are fairly influential people and he can bank on the right sort of recommendation or push at the. right moment.

6.18 On the other hand, Lallu is a village boy and his backward class parents

occupy a low social position in the village caste hierarchy. His father owns a

4

acre plot of agricultural land. Both his parents are illiterate and his family of

8

lives huddled in a two-room hut. Whereas a primary School is located in

his village, .for his high school he had to walk a distance of neatly three kilometers both ways. Keen on pursuing higher studies, lie persuaded his parents to send him to an uncle at the Tehsil head quarters. He never received any guidance regarding the course of studies to be followed or the career to be chosen. Most of his friends did not study beyond middle-school level. He was never exposed to any stimulating cultural environment and he completed his college education without much encouragement from any quarter. Owing to his rural background, he has a rustic appearance. Despite his college education, his pronunciation is poor, his manners awkward and he lacks self-confidence.

6.19 Assuming that Mohan and Lallu had the same level of intelligence at the time of their birth, it is obvious that owing to differences in social, cultural and environmental factors, the former will beat the latter by lengths in any competitive field. Even if Lallu s intelligence quotient was much higher as compared to Mohan, chances are that the former will lag far behind the latter in any competition where selection is made on the basis of merit .

6.20 Let us suppose that both of them sit for the All India Services

examination and Mohan secures 50% more marks than Lallu. Does it mean

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

that Mohan s merit is 50% higher than that of Lallu or, that, he will be 50% more. efficient than that village boy. Is it possible to determine that, in view of their respective native intelligence, how these boys would have faired in case they had exchanged places? If merit also includes grit, determination, ability to fight odds, etc., should not the marks obtained by Mohan and Lallu be suitably moderated in view of the privileges enjoyed by the former and the handicaps suffered by the latter?

6.21 In fact, what we call merit in an elitist society is an amalgam of native endowments and environmental privileges. Mohan and Lallu are not equals in any fair sense of the term and it will he unfair to judge them by the same yard stick. The conscience of a civilized society and the dictates of social justice demand that merit and equality are not turned into a fetish and the element of privilege is duly recognised and discounted for when unequals are made to run the same race .

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

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

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

downtrodden, under privileged, marginalized sections of the society, as a matter of fact did not reach them and consequently, they cannot be on par with others and put them in the main stream.

8.48 The implementing authorities right from the commencement of the Constitution, till up to now make it appear to the outside World as if that they are the sworn enemies of social justice by their judgements not reflecting the social ethos underlying in the Constitution, although they have rendered lip service in flamboyant style that they alone protect the social interest of the unprivileged and marginalized sections of the society. Such attitudes of the implementing authorities were sought to be prevented during the period of late lamented Prime Minister Jawaharlal

Nehru, unable to bear the stumbling blocks created by the implementing authorities in the march of social order establishing an egalitarian society

by enactment of legislation. Nehruji thought fit to prevent such authorities

from interfering with the social reforms by the enactment of legislations

by

the State and consequently inserted article 31(B) in the year 1951 and

IX

schedule in the Constitution. The effect of the said article and the IX

schedule was that even if legislation is rendered null and void, the said legislation would automatically get revived without putting to the necessity of enactment of such legislation again. Further, any legislation made by the Parliament or the Legislature of a State, if put in the IX schedule after observing the necessary formalities prescribed therefor, the implementing authorities have no power to strike down such legislations even if they are opposed the fundamental rights.

8.49 Subsequently, so many legislations were enacted by the Parliament as well as by the Legislatures of the various States on social reforms and have been placed in the IX schedule so as to put them beyond the pale of challenge in any superior courts of jurisdiction.

8.50 By the formulation of the basic structure concept, the Supreme Court made the Parliament and the Legislatures of the State simply puppets, not being in a position to reverse the judgements of the Supreme Court

by a way of the amendment of the Constitution or to enact any new legislation on social reforms. Thus the will the people in this Country is unable to be reflected either by the Members of the Legislative Assembly

of the States or by the Members of the Parliament by the enactment of

necessary of legislations to fulfill the aspirations, hopes of the people of the Country and to set up an Egalitarian society as adumbrated by the Constitution.

8.51 As such there is no salvation for the under-privileged, marginalized sections of the society, unless and until the Constitution is changed by way of referendum.

Justification of Reservation under the Tamil Nadu Act 45 of 1994 on Quantifiable Data

8.52 The implementing authorities created a grudge and want of atmosphere of cordiality with feelings of animosity among the Scheduled Castes themselves by declaring that they constitute a homogenous group in each and every State or Union Territories as contained in the list notified by the President of India after the commencement of the Constitution with Nil or little imagination or realization of the factual factors or situations, although the list of Scheduled Castes had been prepared for each and every State or Union Territories from the list of castes and communities, race or tribes or part of such castes or communities, races or tribes which by itself shows that Scheduled Castes is not a caste by itself in the ordinary sense and form a homogenous group of people without having a difference or distinction in the social milieu of such group of people. They are in the very nature of things heterogeneous in character. As a consequence of such declarat