Reservation

Bullet points
 Reservation a historical Perspective
 Current scenario
 Reverse discrimination

Reservation for the SC and ST community is against the tenets of the principle of equality.
Reservations seem to be an unreasonable discrimination against the general category citizens
of India. The claim for special treatment for the SC and ST community rest on moral
arguments about historical injustice and reparation. 1 The situation is totally different after 70
years of independence of India. Today, the benefits of reservation are not reaching to the poor
downtrodden castes but are enjoyed by the upper caste.

The gist of this paper is that the benefit should reach to the lower and poor caste for this the
paper argues for the introduction of creamy and non-creamy layer in the reservation for SC
and STs.

The first clause of Article 15 directs the state not to discriminate against a citizen on grounds
only of religion, race, caste, sex or place of birth or any one of them. The word discrimination
means to make an adverse distinction or to distinguish unfavourable from others. 2 If a law
makes discrimination on any of the above grounds it can be declared invalid. Here the authors
tries to content that today the poor SC and ST are been exploited by the rich SC and ST. So
for the benefit of the entire caste it is necessary that concept of creamy and non creamy layer
in SC and ST.

Moreover, in the case of Jagdish Negi v. State of U.P,3 it was held that
“backwardness cannot continue indefinitely and the State is entitled to review the
situation from time to time.”

The doctrine of affirmative action has been deduced from the ‘equal protection’ clause of
Article 14.4 Though Article 16(4) does not confer any fundamental right upon any individual,

1
Rochana Bajpai, “Constituent Assembly Debates and Minority Rights” available at
http://www.jstor.org/stable/4409329, accessed on 13-10-2016.
2
Sriniwas Aiyer v. Sarawathi Ammal, AIR 1952 Mad. 193.
3
AIR 1997 S C 3505.
4
Justice B. P. Banerjee, Writ Remedies, 1303 (4th ed. Rep. 2008).

1
it enjoins the State to take positive action to alleviate inequality or, in other words, it confers
power coupled with duty.5 Thus, State is empowered for positive discrimination. 6 Article 14
enjoins the State to take affirmative action by way of giving preference to the socially and
economically disadvantaged persons in order to bring about real equality. 7 The Court would
uphold reservations to a reasonable extent to protect and further the aspirations 8 of backward
classes.9 The result of an intended affirmative action by the legislature may or may not result
in positive discrimination of the masses.10

An affirmative action may be constitutionally valid per se, but the Court cannot ignore the
constitutional morality which embraces in itself the doctrine of equality. 11 It would be
constitutionally immoral to perpetuate inequality among majority people of the country in the
guise of protecting the constitutional rights of backward and downtrodden. 12 If the affirmative
action results in reverse discrimination the whole purpose of the action is defeated as it will
result in obliterating the fundamental right of equality. 13 Neither classification nor affirmative
action can obliterate the individual right to equal opportunity. 14 If the extent of reservation
goes beyond cut-off point then it results in reverse discrimination.15

Excessive reservation must not be made in the name of advancement of backward classes
because if this is done fundamental rights of other communities would be annihilated. 16 In
construing 16(4A), Article 16(1) must also be kept in mind as Article 16(4) is a kind of
proviso to Article 16(1) and hence, excessive reservation in favour of backward classes will
in effect deny the right under Article 16(1) to others and such reservation cannot be
constitutional.17 Thus, the power conferred on the State can only be exercised in favour of a
backward class and therefore, whether a particular class of citizens is backward, is an
objective fact to be determined by the state.

5
General Manager v. Rangachari, AIR 1962 SC 36; See also, Indra Swahney v. Union of India, AIR 1993 SC
477.
6
Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201; Jagdish Lal v. State of Haryana, (1997) 6 SCC 538;
State of U.P. v. Dr. Dina Nath Shukla, (1997) 9 SCC 662.
7
St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558.
8
Lingappa Pochanna Appelwar v. State of Maharashtra, (1985) 1 SCC 479.
9
Lingappa Pochanna Appelwar v. State of Maharashtra, (1985) 1 SCC 479.
10
Pradeep Jain v. Union of India, AIR 1984 SC 1420.
11
2, Durga Das Basu, Commentary on the Constitution of India, 3838 (8th ed. 2008)
12
Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697.
13
T.K. Tope, Constitutional Law of India, 731 (3rd ed. 2010).
14
H.M. Seervai , Constitutional Law of India (4th ed. 1993).
15
M Nagaraj v. Union of India, (2006) 8 SCC 212.
16
Arati Ray Choudhury v. Union of India, (1974) 1 SCC 87.
17
T. Devadasan v. Union of India, AIR 1964 SC 179.

2
In Mohan Kumar Singhania v. Union of India, explaining the nature of Article 16(4) the
Supreme Court has stated that it is an enabling provision conferring a discretionary power on
the state for making any provision or reservation of any backward class of citizens which in
the opinion of the state is not adequately represented in the service of the state. Article 16(4)
neither imposes any constitutional duty nor confers any Fundamental Right on any one for
claiming reservation.

The state has an obligation to treat its citizens as equals, to eschew discrimination on any
grounds. The concept of equality and equal protection of laws guaranteed by Article 14 in its
spectrum encompasses social and economic justice in a political democracy. 18 Implicit in the
concept of equality is the concept that persons who are in fact unequally circumstanced 19
cannot be treated on a par20 and equals cannot be treated as unequals.21

Backwardness enshrined in Art. 15(4) is both social and educational and not either social and
educational.22 It was true that the condition of the backward classes including SC and ST had
improved substantially and they were not facing any particular economic disabilities on
account of their caste. So the SC and ST being economically sound can avail better education
in any institution. This proves that now there is no need for reservation. Caste only cannot be
the basis for reservation.23 The right to equality is basic feature of the constitution.24

Ashoka Kumar Thakur v. Union of India & Others,25 Dalveer Bhandari J. Held:
“8. I have carefully examined the pleadings and written submissions submitted at
length. Admittedly, the provisions of the Constitution and the Preamble lead to the
irresistible conclusion that the Nation has always wanted to achieve a casteless and
classless society. If we permit this impugned legislation to be implemented, I am
afraid, instead of a casteless and classless India, we would be left with a caste ridden
society.”

In Gopalan v. State of Madras, it was held that the language of an Article could not be
modified with reference to the Preamble. It is brought to the notice of this Court that the

18
Dalmia Cement (Bharat) STd. v. Union of India, (1996) 10 SCC 104.
19
M Nagaraj v. Union of India, (2006) 8 SCC 212. at 270.
20
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
21
State of Punjab v. Balkaran Singh, (2006) 8 SCC 481, 655.
22
M.R Balaji v. State of Mysore, AIR 1963 SC 649.
23
Indra Swahney v. Union of India, AIR 2000 SC 498.
24
Indira Sawhney v. Union of India, AIR 2000 SC 498.
25
Ashok Kumar Thakur v. Union Of India, (2008) 6 SCC.

3
Constitution-makers after making immense sacrifices for achieving certain ideals have
inserted Part III and IV so, they cannot provide for provisions taking away those ideals.26

Among these is the concept of equality as envisaged in Article 14. Article 14 embodies
within it the Dicean concept of the “Rule of Law” 27, which means inter-alia an equal
subjection of all classes to the ordinary law of the land. 28 As a basic feature of the
Constitution,29 this also exemplifies the concept of equal protection of the law. 30 Equal
protection means the absence of any arbitrary discrimination 31 by the laws themselves or in
their administration.32 None should be favoured33 and none should be placed under any
disadvantage in circumstances that do not admit of any reasonable justification 34 for a
different treatment.35

The concept of Liberty should be coupled with social restraint such that common happiness
for the greatest number can be assured. 36 Further, the aspect of “Fraternity” can only be
achieved only if the people of India as a whole were bound together by a spirit of
brotherhood.37 Constitutionalism connotes in essence limited government or a limitation on
government38

It has been observed and expressed39 that

“...that although reservation cannot be so excessive as to destroy the principle of
equality of opportunity under clause (1) of article 16. If a State has 80% population
which is backward then it would be meaningless to say that reservation should not
cross 50%.”40

26
Indra Swahney v. Union of India, AIR 1993 SC 477.
27
A.P Agarwal v. Govt. of NCT of Delhi, 2000 SC 205.
28
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
29
Raghunath Rao, Ganapath Rao v. Union of India, AIR 1993 SC 1267.
30
Article 7, United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71
(1948); Article 14, United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967); Article 14,
European Convention on Human Rights, 213 UNTS 221.
31
Maneka Gandhi v. Union of India. AIR 1978 SC 597.
32
Burdick, Law of the American Constitution 605 (1922).
33
Morey v. Doud, (1956) 118 U.S. 356.
34
John Vallamettom v. Union of India, AIR 2003 SC 2902.
35
Truax v. Corrigan, (1921) 257 U.S. 312.
36
S.S. Bola v. B.D. Sardana, (1997) 8 SCC 522.
37
Indra Swahney v. Union of India, AIR 1993 SC 477.
38
Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 Am. Pol. SC Rev. 853 (1962).
39
M. Nagaraj & Ors v. Union of India & Ors., AIR 2007 SC 71.
40
State of Kerala & Anr. v. N.M. Thomas, AIR 1976 SC 490.

4
Although Article 16(4) forms a part of fundamental rights, it does not confer nor does it
impose any constitutional duty on the government to make a reservation for scheduled castes
and the scheduled tribes. It only confers a discretionary power on the stage to make a
reservation in favour of the backward class of citizens which in its opinion, is not adequately
represented in the services of the State.41

“Every discretionary power is not necessarily discriminatory. Equality is not violated

by the more conferment of discretionary power. It is violated by arbitrary exercise by
those on whom it is conferred.” 42

The rule of law is invoked to mean that there is a duty to obey the lawful government because
of the importance of social considerations of a Welfare State. 43 The courts do not claim that
the rule of law is absolute and recognise that it might be outweighed by important public
interests.44 Most laws therefore, in practice have a widely accepted meaning conforming to
accepted standards of ‘practical reasoning’, community standards of ‘ordinary notions of
what is fit and proper’.45 Further, sometimes Dicean equality backfires. 46 It is thus arguable
that a principle of equality is not sufficient to deal with the wide- ranging powers by the
modern government.47 It is humbly submitted that in view of radical transformation in
functions of a progressive State, its administration enjoys a vast reservoir of powers 48 and no
modern Welfare State can work without exercising discretionary powers.

Reservation In The Present Case Is Against The Tenets Of Constitutionalism. Reservation

should not be excessive and cannot be taken to the extent of affecting the guarantee contained
in art 16(1).49

In Indra Sawhney v. Union of India,50 it was declared that

“under Article 16(4) care should be taken not to provide for unreasonable, excessive or
extravagant reservation and reservation under Article 16(4) should be within permissible

41
Ajit Singh II v. State of Punjab, AIR 1999 SC 3471.
42
5 Durga Das Basu, Commentary on the Constitution of India, (8th ed. 2008).
43
Brown v. Stott, [2001] 2 All ER 97.
44
R (Corner House Research) v. Director of the Serious Fraud Office, 2 [2008] UKHL 60.
45
MacFarlane v. Tayside Health Board, [2000] 2 AC 59; Invercargill City Council v. Hamlin, [1996] AC 624.
46
Malone v. Metropolitan Police Commissioner, [1979] Ch 344; Harrow LBC v. Qazi, [2004] 1 AC 983.
47
John Alder, Constitutional and Administrative Law, 131 (7th ed., 2009).
48
Maurice Joly, Dialogue in Hell Between Machiavelli and Montesquieu, (1st ed. 2003).
49
T .Devadasan v. Union of India, AIR 1964 SC 179.
50
Indra Swahney v. Union of India, AIR 1993 SC 477.

5
 and legitimate limits and any excess is liable to be challenged ‘as a fraud on the
constitution.”

The adjustment of these competing claims is absolutely perverse as the evolution of the
people of the SC & ST community has been ignored. Moreover, if under the guise of making
a special provision, the State reserves practically almost the quarter of the total seats, it would
clearly subvert the objects of Article 15(4). This would eliminate general competition in a
large field and create widespread dissatisfaction amongst the employees, materially affecting
efficiency. The same has happened in the state of India which witnessed a plethora of
suicides being committed by students on account of lack of opportunity due to the presence
of reservation policy by which seats were given to SC’s and ST’s just on account of their
castes.

In the case of Ajit Singh,51 it was held that

“for attracting meritorious and talented persons to the public services, a balance has
to be struck, while making provision for reservation in respect of a section of the
society.”

A similar observation was made in Akhil Bharatiya Soshit Karmachari Sangh (Rly) v. Union
of India,52 where, it was held that:
“care must be taken to see that classification is not pushed to such an extreme point
as to make the fundamental rights to equality cave in and collapse.”

The reservation policy in the present case has clearly gone against this observation stated
above by violating the right of equality of the people from General category.

An affirmative action stops where reverse discrimination begins. 53 There is no doubt that the
court will interfere where the percentage of reservation is not reasonable, having regard to the
strength of the different communities, the population of the entire state and the extent of their
backwardness.54 Article 16(4) speaks of “adequate representation” and not “proportional
representation” and thus, power must be exercised reasonably and fairly.

It is true that the constitution drafters had a bona fide intention behind inclusion of
reservation into the constitution, but it is observed that reservation in India has evolved and is
51
Ajit Singh I v. State Of Punjab, (1996) 2 SCC 715.
52
Akhil Bharatiya Soshit Karmachari Sangh (Rly) v. Union Of India, (1981) 1 SCC 246.
53
Ajit Singh II v. State Of Punjab , AIR 1999 SC 3471.
54
Trilokinath v. State of J & K, AIR 1967 SC 1283.

6
now deviating from its prime purpose. People are misusing this privilege for their benefit.
Today political parties are busy in creating vote banks through the weapon of reservation.

Article 16(4) has to be interpreted in the background of Article 335 55 and maintenance of
efficiency is to be considered in administration while making appointments to services 56.

In the landmark judgment of Indra Sawhney v. Union of India,57 it was held that mandate of
Article 335 is to take the claims of members into consideration, consistent with the
maintenance of efficiency of administration as the relevance and significance of merit cannot
be ignored.

Article 16(4) and Article 16(4A) must be applied in such a manner that balance is struck in
the matter of appointments by creating reasonable opportunities for the reserved classes and
also for the other members of the community who do not belong to such classes.58

For fructifying the scheme under Article 16(4) and Article 16(4A), Article 335 has to be kept
in view and is to be given full play. 59 Efficiency being a compelling State interest, it must
strictly guide affirmative action. The principle as stated in the Article 335 must guide all
affirmative action programmes for backward and other disadvantaged persons.60

The Supreme Court of India has laid down many decisions considering that Article 335 is
safely guarding the requirement of ensuring efficiency in the administration.61

The N.M Thomas case62 held that equality of opportunity guaranteed under Article 16(1)
refers to equality between members of the same class of employees and not equality between
members of separate and independent classes.

Article 16(4) refers only to the backward class of citizens and not to Schedule Caste/
Schedule Tribes. On the other hand, Article 15(4) refers to both the categories.

55
Rajendran v. Union of India, AIR 1968 SC 507.
56
State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296.
57
Indra Swahney v. Union of India, AIR 1993 SC 477.
58
Post Graduate Institute of Medical Education & Research, Chandigarh v. FacuSTy Association, (1998) 4
SCC 1.
59
State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296.
60
2, Durga Das Basu, Commentary on the Constitution of India, 3838 (8th ed. 2008).
61
Ajit Singh I v. State Of Punjab, (1996) 2 SCC 715.
62
State of Kerala v. N. M. Thomas, AIR 1976 SC 490.

7
No class is to be given reservation unless they qualify the criteria given in Trilok Nath Triku
v. State of J & K case.63 The government can certainly conduct periodical reviews and no
community or backward class can claim benefits to reservation in perpetuity.64

The Hon’ble Supreme Court has held in a number of cases, that Article 335 operates as a
limitation to the provision contained in Article 16(4) though Article 16(4) does not
specifically refer to Article 335 or raise any question of maintenance of efficiency of the
administration. Thus, reservation for the backward class will be struck down as violative
of Article 14 and 16(1), if it is unreasonably excessive. While forming an opinion for making
reservations the State shall also take cognisance of the limitation set out in Art .335 i.e.
whether making reservation is consistent with the maintenance of efficiency of
administration. 82nd Amendment Act, 2000, amended the Article 335.

That it is most humbly submitted before this Hon’ble Court that the policy of the legislature
in removing the concept of SC and ST from the policy making is a policy decision and firstly
cannot be questioned before this Hon’ble court. The second leg of the argument rests on the
premise that this decision was not violative of any provision of the constitution of India.

Mahatma Gandhi said:

“The caste system as we know is an anachronism. It must go if both Hinduism and
India are to live and grow from day to day.”

Dr. B. R. Ambedkar called caste “anti-national”.

After almost four decades of independence, while participating in the Parliamentary Debate
on the Mandal issue, then Prime Minister Shri Rajiv Gandhi on 6th September, 1990 again
reiterated the same sentiments:
“I think, nobody in this House will say that the removal of casteism is not part of the
national goal, therefore, it would be in the larger interest of the nation to get rid of
the castes as early as possible”.

In Indra Sawhney & Others v. Union of India & Others,65 (hereinafter referred to as Sawhney
I), this Court has aptly observed that reservation is given to backward classes until they cease
to be backward, and not indefinitely. This Court in Para 520 (Sawant, J.) has stated as under:

63
Trilok Nath Triku v. State of J & K, AIR 1967 SC 1283.
64
Jagdish Negi, President Uttarakhand Jan Morcha v. State Of Uttar Pradesh, AIR 1997 SC 3505.
65
(1992) Supp (3) SCC 217

8
 “Society does not remain static. The industrialisation and the urbanisation which
necessarily followed in its wake, the advance on political, social and economic fronts
made particularly after the commencement of the Constitution, the social reform
movements of the last several decades, the spread of education and the advantages of
the special provisions including reservations secured so far, have all undoubtedly seen
at least some individuals and families in the backward classes, however small in
number, gaining sufficient means to develop their capacities to compete with others in
every field. That is an undeniable fact. Legally, therefore, they are not entitled to be
any longer called as part of the backward classes whatever their original birthmark. It
can further hardly be argued that once a backward class, always a backward class.
That would defeat the very purpose of the special provisions made in the Constitution
for the advancement of the backward classes, and for enabling them to come to the
level of and to compete with the forward classes, as equal citizens.”

During the years 1968 to 1971, this Court had to consider the validity of identification of
backward classes made by Madras and Andhra Pradesh Governments. Minor P.Rajendran v.
State of Madras, related to specification of socially and educationally backward classes with
reference to castes. The question was whether such identification infringes Article 15.
Wanchoo, CJ., speaking for the Constitution Bench dealt with the contention in the following
words:
“The contention is that the list of socially and educationally backward classes for
whom reservation is made under Rule 5 nothing but a list of certain castes.
Therefore, reservation in favour of certain castes based only on caste considerations
violates Article 15(1), which prohibits discrimination on the ground of caste only.
Now if the reservation in question had been based only on caste and had not taken
into account the social and educational backwardness of the caste in question, it
would be violative of Article 15(1). But it must not be forgotten that a caste is also a
class of citizens and if the caste as a whole is socially and educationally backward
reservation can be made in favour of such a caste on the ground that it is a socially
and educationally backward class of citizens within the meaning of Article 15(4).... It
is true that in the present cases the list of socially and educationally backward
classes has been specified by caste. But that does not necessarily mean that caste was
the sole consideration and that person belonging to these castes are also not a class
of socially and educationally backward citizens.... As it was found that members of

9
 these castes as a whole were educationally and socially backward, the list which had
been coming on from as far back as 1906 was finally adopted for purposes of Article
15(4) In view however of the explanation given by the State of Madras, which has not
been controverted by and rejoinder, it must be accepted that though the list shows
certain castes, the members of those castes are really classes of educationally and
socially backward citizens. No attempt was made on behalf of the
petitioners/appellant to show that any caste mentioned in this list was not
educationally and socially backward. In this state of the pleadings, we must come to
the conclusion that though the list is prepared caste-wise, the castes included therein
are as a whole educationally and socially backward and therefore the list is not
violative of Article 15. The challenge to Rule 5 must therefore fail.

In Pradip Tandon, a decision under Article 15(4), Ray,C.J. speaking for the Division Bench
of three Judges opined:

Broadly stated, neither caste nor race nor religion can be made the basis of classification for
the purposes of determining social and educational backwardness within the meaning of
Article 15(4). When Article 15(1) forbids discrimination on grounds only of religion, race,
caste, caste cannot be made one of the criteria for determining social and educational
backwardness. If caste or religion is recognised as a criterion of social and educational
backwardness Article 15(4) will Article 15(1). It is true that Article 15(1) forbids
discrimination only on the ground of religion, race, caste but when a classification taken
recourse to caste as one of the criteria in determining socially and educationally backward
classes the expression "classes" in that case violates the rule of expressio unions est exclusio
alterius. The socially and educationally backward classes of citizens are groups other than
groups based on caste.

Point to note that moment judiciary settled out this political sore of Indian Society, the
hidden cysts in Indian Legal System began to spurt out. Most recent blister in this context
is the JAAT reservation issues. The people belonging to JAAT community were allotted
status of OBC’s by the Central Government on 19th December 2013 both in educational
Institutes as well as Government services. However in Ram Singh and others v. Union of
India,66 Supreme Court of India did not hesitate in quashing the order of Central
government stating that communities cannot self proclaim themselves as a backward class
66
WRIT PETITION (CIVIL) NO. 274 OF 2014

10
on the basis of being “less fortunate” as compared to others and on the flimsy grounds of
historical prejudice.67

Caste base reservation is in violation of the Tenets of Constitutionalism. The concept of

reservation was necessitated for transcending caste and not for perpetuating it. Reservation
has to be used in limited sense otherwise it will perpetuate casteism in the country.

Equality in Article 16(1) is individual specific whereas reservation in Article 16(4) and
Article 16(4a) is enabling. The discretion of the state is however subject to the existence of
backwardness and inadequacy of representation in Public employment. Backwardness has to
be based on objective factors whereas inadequacy has to factually exist.68

Court pronounced that caste based reservations as per Communal Award violates Article
15(1). (State of Madras v. Smt. Champakam Dorairanjan)69 In the cases the Indian Supreme
Court held that any legislation and/or executive order prescribing reservations on the basis of
caste were unconstitutional.

Significantly, Article 15, which prohibits discrimination, also contains a clause allowing the
union and state governments to make “any special provision for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes.” This language was added in 1951 within weeks of a Supreme Court
decision outlawing quotas in school admissions.

In Chitralekha v. State of Mysore, an order saying that a family whose income was less than
Rs. 1200 per year and followed such occupation as agriculture, petty business, inferior
services, crafts, etc. would be treated as backward, was declared valid though caste as a
criteria was totally ignored for the purpose. It was held that identification of backward classes
on the basis of occupation-cum-income, without reference to caste is not bad and would not
offend Art. 15(4).

The intention of reservation was to improve the conditions of the backward castes and
communities of the society but the effects of reservation for the SC’s and ST’s has been

67
Adv.Parul Yadav516 & Mr. Karmashil Bhagat, “FUNDAMENTAL RIGHTS AS AN EXPRESSION OF
CONSTITUTIONALISM IN INDIA” INTERNATIONAL JOURNAL FOR LEGAL DEVELOPMENTS AND
ALLIED ISSUES [VOL 1 ISSUE 4] available at
http://ijldai.thelawbrigade.com/wp-content/uploads/2015/11/AdvParulyadav.pdf, accessed on 27,October, 2016.
68
Ratan Lal Bagri and ors. v. The State of Rajasthan and ors., AIR 2015 SC , para no.117.
69
AIR 1951 SC 226. Also see Venkatraman v. State of Madras. AIR 1961

11
severe and damaging as it has promoted the concept of division of society, discouraged
performers and has been used just for political strata migration of merits etc. It created
disorder in the state of India and therefore it was valid on the part of the Legislature bringing
an end to the same problem. That has strategized the division of society.

In the case of State of U.P. v. Pradip Tandon & ors, it was held that when a classification
takes recourse to caste as one of the criteria in determining socially and educationally
backward classes, the expression classes" in that case violates the rule of expression unius est
exclusio alterius. The socially and educationally backward classes of citizens are groups
other than, groups based on caste.

Moreover, Article 16(4) expressly provides for the 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. Here the term denotes both the central and state
governments and their instrumentalities.

Thus, the power conferred on the State can only be exercised in favour of a backward class
and therefore, whether a particular class of citizens is backward, is an objective fact to be
determined by the state.

In the scenario of the present case, the state has determined the condition of the people of the
SC & ST community as equals in the society. Therefore, the provisions made in their favour
have been repealed to ensure equality in the region.

In K.S. Jayasree v. State of Kerala,70 the state of Kerala appointed a Commission to inquire
into and to report as to what sections of the people in Kerala should be treated as socially and
educationally backward classes. On the basis of the report of the Commission, the
government directed the candidates belonging to families whose annual income was Rs.
10,000/- or above would not be eligible for seats reserved for backward classes in Medical
Colleges. The Supreme Court upheld the Government’s direction and held – Neither caste by
itself nor poverty by itself is determining factor of social backwardness. Though poverty is
not the sole test of backwardness yet it is relevant factor in context of social backwardness
yet it is relevant factor in the context of social backwardness. Thus, both caste and poverty
are relevant in determining the backwardness of citizens.

70
AIR 1976 SC 2381.

12
Reservation Affects The Principles Of Efficiency, Merit And Morale Of Public Services And
The Foundation Of Good Governance And Hence Is Against The Interest Of The Nation.

If the structural balance of equality in the light of the efficiency is disturbed and if the
individual right is encroached upon by excessive support for group expectations by providing
for reservation it would amount to reverse discrimination 71 as it would lead to very few
seats/vacancies remaining for the “non-backward classes”.

The Supreme Court observed in the M.R. Balaji case,72 that while making adequate
reservation under art 16(4), care would be taken not to provide for unreasonable, excessive or
extravagant reservation, for that would eliminate general competition in a large field and
create widespread dissatisfaction amongst the employees, materially affecting efficiency. 73
Court put 50% cap on reservations in M R Balaji v. Mysore74

Reservation should not be made at the cost of efficiency.75 The positive accent of Article 335
is that the claims of SC and ST to equalisation of representation in service 76 under the State
having regard to their sunken social system and importance in the power system, shall be
taken into consideration. The negative element of Article 335 is that the measures taken by
the State pursuant to mandate of Articles 16(4), 46 and 335 shall be consistent with and not
subversive of the maintenance of efficiency of the administration.77

Reservation is a means of ensuring education to the socially and educationally backward

castes. The system of reservation in India is a form of positive discrimination.

Pandit Jawaharlal Nehru, who presided over the Congress Expert Committee emphasized
before the Constituent Assembly that the removal of socio-economic inequalities was the
highest priority. He believed that only this could make India a casteless and classless society,
without which the Constitution will become useless and purposeless.78

Regarding equality, Dr. Ambedkar stated in the Constituent Assembly79 :

71
M Nagaraj v. Union of India, (2006) 8 SCC 212.
72
M.R.Balaji v. State of Karnataka, AIR 1963 SC 649.
73
State of Karnataka v. C Lalitha, (2006) 2 SCC 747.
74
AIR 1963 SC 649.
75
State of Kerala v. N. M. Thomas, AIR 1976 SC 490.
76
Indra Swahney v. Union of India, AIR 1993 SC 477.
77
Akhil Bharatiya Soshit Karmachari Sangh (Rly.) v. Union of India, AIR 1981 SC 298.
78
II Constituent Assembly Debates 317 (Wednesday, January 22, 1947)
79
XI Constituent Assembly Debates 979 (Friday, November 25, 1949)

13
 “…We must begin by acknowledging the fact that there is complete absence of two things
in Indian Society. One of these is equality. On the social plane, we have in India a society
based on the principle of graded inequality which means elevation for some and
degradation for others. On the economic plane, we have a society in which there are
some who have immense wealth as against many who live in abject poverty.”

Reservation is one of the many tools that are used to preserve and promote the essence of
equality, so that disadvantaged groups can be brought to the forefront of civil life. It was only
to ensure equality in the state of India that these provisions of reservations were made for the
people of the SC, ST community. The sole purpose behind this was to bring them to the
forefront of civil life and salvage them from the glitches of discrimination. It is also the duty
of the State to promote positive measures to remove barriers of inequality and enable diverse
communities to enjoy the freedoms and share the benefits guaranteed by the Constitution.

Judge Lauterpacht of the International Court of Justice, writing in 1945, described the
importance of the principle of equality in the following words:-

“The claim to equality before the law is in substantial sense the most fundamental of the
rights of man. It occupies the first place in most written constitutions. It is the starting
point of all other liberties.”80

Dr. Rajendra Prasad, at the concluding address of the Constituent Assembly, stated in the
following words:-

“…To all we give the assurance that it will be our endeavour to end poverty and squalor
and its companions, hunger and disease; to abolish distinction and exploitation and to
ensure decent conditions of living. We are embarking on a great task. We hope that in
this we shall have the unstinted service and co-operation of all our people and the
sympathy and support of all the communities...”81

Article 14 permits classification but prohibits class legislation. The varying needs of
individual often require separate treatment.82 Article 14 applies where equals and unequal’s
are treated differently without any reasonable basis..

80
Lauterpacht, An International Bill of the Rights of the Man (New York, Columbia University Press, 1945)
81
V Constituent Assembly Debates 2 (Thursday, the 14th August 1947)
82
Chitranjit Lal v. Union of India, AIR 1951 SC 41.

14
The doctrine of positive or affirmative action has been deduced from the ‘equal protection’
clause of Article 14.83 State is empowered for positive discrimination. 84 Protective
Discrimination in favour of SCs and STs is a part of constitutional scheme of social and
economic justice to integrate them into the national mainstream so as to establish an
integrated social order with equal dignity of person.85

Article 14 enjoins the State to take into account de facto inequalities which exist in the
society and to take affirmative action by way of giving preference to the socially and
economically disadvantaged persons or inflicting handicaps on those more advantageously
placed, in order to bring about real equality. 86 Such affirmative action though apparently
discriminatory in nature is calculated to produce equality on a broader basis by eliminating de
facto inequalities and placing the weaker sections of the community on a footing of equality
with more powerful sections so that each member of the community may enjoy equal
opportunity of using to the full his natural endowments.87

To treat unequals differently according to their inequality is not only permitted but required.
Affirmative action is inevitable in a society deeply driven by social inequalities created over
hundreds of years by the caste system.88

While interpreting Article 16(4) and Article 16(4A), the Court should keep in mind that there
are other provisions, namely, Article 14, 16(1) and 335 which are also important so that there
is no reverse discrimination.89 Article 16(4) and Article 16(4A), in the present case, are
construed by the Parliament in such a manner that balance is struck in the matter of
appointments by creating reasonable opportunities for the reserved classes and also for the
other members of the community who do not belong to such classes.90

83
Indra Sawhney v. Union of India, AIR 1993 SC 477.
84
Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201; Jagdish Lal v. State of Haryana, (1997) 6 SCC 538;
State of U.P. v. Dr. Dina Nath Shukla, (1997) 9 SCC 662.
85
P.G.I. of Medical Education & Research, Chandigarh v. K.L. Narasimhan, (1997) 6 SCC 283.
86
St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558.
87
Pradeep Jain v. Union of India, AIR 1984 SC 1420; Jagdish Saran v. Union of India, AIR 1980 SC 820.
88
Jody Feder, Affirmative Action in Employment: A Legal Overview, in Pamela L. Medina and Jimmy E. Patel,
Affirmative Action and Preferential Treatment: Laws and Development, 57 (1st ed. 2012).
89
Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209.
90
Post Graduate Institute of Medical Education & Research, Chandigarh v. Faculty Association, (1998) 4 SCC
1.

15
In the words of India’s National Commission for Scheduled Castes and Scheduled Tribes, “All
the measures taken were not found to be effective enough in curbing the incidents of atrocities on
Scheduled Castes and Scheduled Tribes.”91

Article 14 is general and must be read with the other provisions which set out the ambit of
fundamental rights.92Article 14 embodies within it the Dicean concept of the ‘Rule of Law’ 93,
which means inter alia an equal subjection of all classes to the ordinary law of the land. 94
This also exemplifies the concept of equal protection of the law. 95 Equal protection means the
absence of any arbitrary discrimination by the laws themselves or in their administration. 96
None should be favoured97 and none should be placed under any disadvantage in
circumstances that do not admit of any reasonable justification for a different treatment. 98 The
principle guiding Article 14 is that there should not be discrimination between one person and
another, if as regards the subject matter of the legislation their position is the same, 99 or in
other words, its action must not be arbitrary but must be based on some valid principle which
itself must not be irrational or discriminatory. 100 If the State leaves the existing inequalities,
untouched by the laws, it fails in its duty of providing equal protection of the law to all
persons.

Article 14 Is Equality Among Equals. Our Constitution is wedded to the concept of equality
and equality is a basic feature. Equality before law means that among equals the law should
be equal and equally administered, that like should be treated alike. 101 Therefore, equal laws
can be applied only to those in similar circumstances. 102 Article 14 does not prohibit
reasonable classification. The Supreme Court has laid down the test to check if a
classification is reasonable or not. It has been held in a number of cases that for a

91
Report of the National Commission for Scheduled Castes and Scheduled Tribes, Fourth Report: 1996-1997
and 1997-1998, Volume I, 232.
92
Yusuf v. State of Bombay, AIR.1954 SC 321.
93
Josheph Raz, The Rule of Law and its Virtue, (1977) 93 LQR 195.
94
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
95
Article 7, United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71
(1948); Article 14, United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967); Article 14,
European Convention on Human Rights, 213 UNTS 221.
96
Charles K. Burdick, The Law of the American Constitution, 605 (1st ed. 1922).
97
Morey v. Doud, (1956) 118 U.S. 356.
98
Truax v. Corrigan, (1921) 257 U.S. 312.
99
Chiranjit Lal v. Union of India , AIR 1951 SC 41; Neera Gupta v. University of Delhi, AIR 1997 Del 175.
100
Ramana v. I.A.A., AIR 1979 SC 1628;Kasturi v. State of Jammu and Kashmir, AIR 1980 SC 1992.
101
Sir Ivor Jennings, Law of the Constitution, 49 (3rd ed. 1963).
102
V.N. Shukla, Constitution of India, 46 (11th ed. 2010).

16
classification to be reasonable,103 it should firstly, be founded on an intelligible differentia
which distinguishes persons or things that are grouped together from others left out of the
group; and secondly, the differentia must have a rational relation to the object sought to be
achieved by the Act.

Also in the case, Maneka Gandhi v. Union of India,104 the Supreme Court held that Article 14
strikes at arbitrariness in State action and ensures fairness and equality of treatment. This
principle was reiterated in Ramana Dayaram Shetty v. International Airport
Authority,105Kasturi Lal Lakshmi Reddy v. State of J&K,106 and Ajay Hasia v. Khalid Mujib.107

Reservation has historically been a necessity in the India society which has the malady of
being caste-ridden.

In M. Nagaraj v. Union of India,108 the Supreme Court required the State to demonstrate the
backwardness of SC/ST beneficiaries every time quotas in promotions were provided for
under Article 16(4A).

It is important to understand the difference in the constitutional status of the SCs/STs and
Other Backward Classes (OBCs). After the judgment in Indra Sawhney v. Union of India,109
individuals in the ‘creamy layer’ of OBCs could not be the beneficiaries of the reservation
policy. However, the Supreme Court in Indra Sawhney110 explicitly held that no such
exclusion would be applicable to the SCs/STs. Such difference in treatment is due to the
composition of groups and the nature of marginalisation they suffer from. The basis on which
these two groups, SC/STs and OBCS, were created is normatively different and it would not
make any sense to apply the same test of exclusion to both groups.111

In the report published, the Government of India’s National Commission for Schedule Castes
and Schedule Tribes states that “...even after 50 years of Independence, Untouchability has

103
R.K.Garg v. Union of India, AIR 1981 SC 2138; In Re Special Courts Bill, AIR 1979 SC 478; Air India v.
Nargesh Meerza, AIR 1981 SC 1829; R.C.Cooper v. Union of India, AIR 1970 SC 564; Ameeroonisa v.
Mahboob, AIR 1953 SC 91; K. Thimmappa v. Chairman Central Board of Directors SBI, AIR 2001 SC 467.
104
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
105
Ramana Dayaram Shetty v. International Airport Authority, (1979) 3 SCC 498.
106
Kasturi Lal Lakshmi Reddy v. State of J&K, (1980) 4 SCC 1.
107
Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722.
108
M. Nagaraj & Ors v. Union of India & Ors., AIR 2007 SC 71.
109
Supra note 21.
110

111
2 Durga Das Basu, Commentary on Constitution of India, 1402 (8th ed. 2008).

17
not been abolished under as provided in Article 17 of the Constitution and incidents continue
to be reported.” 112

Therefore, the Supreme Court’s suggestion in M.Nagaraj,113that the SC/ST beneficiaries of

quotas in promotions must be ‘backward’ is without constitutional merit. The constitutional
position is that all SCs/STs are deemed to be backward and there cannot be a further
determination of ‘backwardness’ among them.114

The question whether SC and ST are backward is still not clarified.

The programme of reservation may sacrifice merit, but does not in any way sacrifice
competence because the beneficiaries under Article 16(4) have to possess the requisite
qualification and eligibility and have to compete among themselves though not with the
mainstream of candidates.115

The rule of adequate representation is Article 16(4) for backward classes and rule of adequate
representation in promotions for SC/STs under Article 16(4A) do not adversely affect the
efficiency in administration.116

The maintenance of efficiency in administration is implicit in Article 14 and 16 even in

regard to the claim of backward classes and even for backward classes, reservation can be
made only if it does not undermine efficiency in administration.117

It is just and reasonable procedure prescribed to achieve the constitutional objectives of

equality of status and opportunity and dignity of person to integrate them in the mainstream
of national life as per the arch of the Constitution, 118 i.e., the Preamble, Articles 14, 15, 16
and 46 and all other related articles of the Constitution consistent with the efficiency of the
administration envisaged under article 335 of the Constitution.119

112
National Commission for Scheduled Castes and Scheduled Tribes, Fourth Report: 1996-97 and 1997-98, New
Delhi, 1998, 232.
113
114
P. Rajendran v. State of Madras, AIR 1968 SC 1012.
115
2 Durga Das Basu, Commentary on Constitution of India, 1402 (8th ed. 2008).
116
Ajit Singh II v. State of Punjab, AIR 1999 SC 3471.
117
2 Durga Das Basu, Commentary on Constitution of India, 1402 (8th ed. 2008).
118
1 Dr. Subhash C. Kashyap, Constitutional Law of India, (1st ed. 2008).
119
Jagdish Lal v. State of Haryana, AIR 1997 SC 2366.

18
It would be necessary to take into account de facto inequality which exists in the society and
to take affirmative action by giving preferences and making reservations in promotions in
order to bring about equality.120

Protective Discrimination envisaged in articles 16(4) and 16(4A) is the amount to establish
the equilibrium between equality in law and equality in results as a fact to the
disadvantaged.121

The principle of reservation provides equality in results. Representation of the various

socially and economically backward communities is essential in a public service. 122 This is
because if the backward communities are not adequately represented then the voices of their
concerns are unlikely to reach the ears of the State.123

Moreover, reservation is not permissible where high level of skill, intelligence and excellence
required, like defence services, technical posts, specialities in medicine, atomic energy, space
research etc. This is good governance on part of the State and is within the national interest as
the State is providing support to these communities in the time of need as not only that their
chances of promotion now increase, the chances of promotion cannot still be claimed as a
right in the light of Dwarka Prasad v. Union of India.124Once, representation is ensured of
these communities via new Article 16(4A), their upliftment becomes a lot more probable.

The Principle Of Social Justice Enshrined In The Preamble And Other Provisions Of The
Constitution. Social justice is fundamental right. The Preamble delineates the contours in
accordance with which our Constitutional machinery has to function. 125 It enlists the goals
which our Constitution intends to achieve. This fact can be appreciated only by looking into
the history of the framing of our Preamble.126 Not only was the Constitution framed in light of
the Preamble127but the Preamble was finally adjusted so as to bring it in conformity with the
Constitution.128 The draft Preamble was considered by the Constituent Assembly on October

120
James P. Sterba, Affirmative Action for the Future, (1st ed. 2009).
121
1 H.M. Seervai, Constitutional Law of India, (4th ed. rep. 2013).
122
1 Dr. Subhash C. Kashyap, Constitutional Law of India, (1st ed. 2008).
123
T.K. Tope, Constitutional Law of India, (3rd ed. 2010).
124
Dwarka Prasad v. Union of India, (2003) 6 SCC 535; relying on Ramchandra Shankar Deodhar v. State of
Maharashtra, (1974) 1 SCC 317.
125
State of Victoria v. The Commonwealth, 45 ALJ 251.
126
Basheshar Nath v. Commissioner of Income Tax Rajasthan, [1959] Supp 1 SCR 528.
127
Atam Prakash v. State of Haryana, AIR 1986 SC 859 (864). See also Excel Wear v. Union of India, AIR 1979
SC 25 (Para 24).
128
B. Shiva Rao, “Framing of the Indian Constitution”, (1967).

19
17, 1949. Shiva Rao observes that “The object of putting the Preamble last was to see that it
was in conformity with the constitution as accepted.” In the end, the words “give to
ourselves this Constitution” was added so as to clearly show that the people are who have
given a charter for their governance, in the Constitution, and the goals of which have been
clearly mentioned in the Preamble to the Constitution.129

The grand vision and the objective behind making of the constitution are reflected in the
Preamble.130 It lays down the ideas that our forefathers after years of struggle for freedom
wanted to achieve.131 The desires, the hopes and the aspiration of the people of this country
are materialized in the form of the Preamble by the constitutional framers. 132 The Indian
Constitution was not only looked to be an alliance between democracies and dynasties, but a
real union of Indian people, built on the basic concept of Sovereignty. 133 The constitution and
the Preamble were drafted in light and direction of the Objective resolution where the
Constitutional Assembly declared India as an Independent Sovereign republic. 134 Therefore
the basic tenants of the constitution were made in light of this idea of the preamble which in
turn was drafted after the Constitution.

The Philosophy Of Social Justice Embodied In The Preamble. Our Constitution is a social
document. It is based on Social Philosophy and every social philosophy has two main
features i.e., basic and circumstantial. The former remains constant and the latter is subject to
change according to the needs of the society.

Social justice is the recognition of greater good to a larger number without deprivation of the
legal rights of anybody.135 According to this concept, the court leans in favour of the weaker
sections of the society.136 The constitutional concern of social justice as an elastic continuous
process is to accord justice to all sections of the society by providing facilities and
opportunities to remove handicaps with which the backward sections are languishing and
secure dignity of their person.137 Social justice aims to remove social imbalance by law,

129
1, Story, Commentaries On The Constitution Of The United States 444 (1883).
130
Sajjan Singh v. State of Rajasthan,(1965) 1 SCR 933 at 968.
131
Lord Thring, Practical Legislation, Chapter IV (2nd ed. 1902).
132
Mangal Singh v. Union of India,(1967) 2 SCR 109 at 112.
133
B. Shiva Rao, Framing of the Indian Constitution, (1967) at 130.
134
III, Constitutional Assembly Debates, 399-436.
135
G.B Paul University of Agriculture and Technologyv. State of U.P., AIR 2000 SC 2695.
136
Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471.
137
Consumer Education and Research Center v. Union of India, AIR 1995 SC 922.

20
harmonizing the rival interests of different sections in the social structure, in order to build a
Welfare State.138

The meaning of the expression is also brought out by Article 46 139 which aims at protecting
the weaker sections from social injustice. 140 The words of the Preamble enjoin the State to
enact positive measures for the protection of weaker sections of the community. 141 Social
justice is a fundamental right.142 Therefore, the doctrine of equality as embodied in Articles
14 to 18 has to be understood in light of the social justice assured by Articles 38, 39, 39A, 41,
and 46 of Part IV of the Constitution. Preamble read with Art. 14 strike down a statute which
failed to achieve the socialist goal to the fullest extent.143

Preamble indicates that the Constitution comes from the People of India. It contains an enacting
clause which brings into force the Constitution. In the third place, it declares the great rights and
freedoms which the people of India intended to secure to all citizens and the basic type of
government and polity which was to be established. It is brought to the notice of this Court that
the Constitution-makers after making immense sacrifices for achieving certain ideals have
inserted Part III and IV so, they cannot provide for provisions taking away those ideals.

Rule of Law and against the Principles of Natural Justice

The doctrine of classification is subsidiary rule to give effect to the doctrine of equality,
overemphasis on this doctrine or anxious or sustained attempt to discover some basis of for
classification may gradually and imperceptibly erode the profound potency of the glorious
content of equality 144.But here in vide reference to this case the amendment is envisaging the
fear among backward classes and thereby which put a question mark in the basic spirit of
Constitution which is uprooted on the hallmark principles of justice ,equality and liberty .

138
Dalmia Cement (Bharat) Ltd. v. UOI, (1996) 10 SCC 104; Air India Statutory Corporation v. United Labour
Union, AIR 1997 SC 645.
139
Provisions in this regard are also made in Articles 15(4), 16(4), 19 (1)(d)-(e), 275, 330, 335, The Constitution
of India (1950).
140
Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471.
141
Lingappa Pochanna Appelwar v.State of Maharastra, AIR 1985 SC 389; Indra Sawhney v. Union of India,
AIR 1993 SC 477.
142
Ashok Kumar Gupta v.State of U.P., (1997) 5 SCC 201.
143
Nakara D.S. v. Union of India, AIR 1983 SC 130 (Para 33-34); see also Minerva Mills v. Union of India, AIR
1980 SC 1789 (Para 62, 111).
144
L.I.C of India v.Consumer Education Research centre, (1995)5SCC108.

21
That the basis behind the laws of equality is that they serve a better purpose than what they
are actually meant to do. The better purpose is called “Justice”. After all, justice is one thing
that is common for all before the government.

It is most humbly submitted before this Hon’ble court that the classification was based on
intelligible differentia, and the differentia was based on a rational relation to achieve equality
in this society. The differential must have a rational relational to the object sought to be
achieved by the statute in question.145

Classification should be based upon empirical study or survey conducted by the state. It
should be based on scientific study and collection of relevant data.146

It was held in M. Nagaraj & Others vs. Union of India,147

“Since the representation of the scheduled castes and the scheduled tribes in services in the
States have not reached the required level, it is necessary to continue the existing dispensation of
providing reservation in promotion in the case of the scheduled castes and the scheduled
tribes.”148

Classification Lacks Intelligible Differentia Article 14 forbids class legislation but does not
forbid reasonable classification for the purpose of legislation. 149 The correct position will be
that class legislation is permissible if the classification on which it is based is rational and has
a nexus with the object sought to be achieved. 150 Mere classification is not enough to get over
the inhibition of this Article.151 The classification must be rational. The differentia which is
the basis of classification and the object of the Act are distinct things and what is necessary is
that there must be a nexus between them. The legislation is given the utmost latitude in
making the classification and it is only when there is a palpable abuse of power and the
differences made have no rational relation to the objectives that judicial interference becomes

145
Budhan Chaudhary v. State of Bihar, 1995 (1) SCR 1045.
146
Kailash Chand Sharma v. State of Rajasthan, AIR 2002 SC 735.
147
Supra note 39.
148
M.V. Pylee, Constitutional Amendments in India, (3rd ed. 2010).
149
Sakhawant Ali v. State of Orissa, AIR 1955 SC 166, 169; See also Union of India v. Indian Charge Chrome,
(1999) 7 SCC 314; Mohan Kumar Singhania v. Union of India, AIR 1992 SC 1; Federation of All India
Customs and Central Excise Stenographers v. Union of India, AIR 1988 SC 1291; Paradise Printers v. Union
Territory, Chandigarh, AIR 1985 SC 354; Raj Pal Sharma v. State of Haryana, AIR 1985 SC 1263; State of
Mysore v. P. Narasinga Rao, AIR 1968 SC 349; Express Newspaper P. Ltd. v. Union of India, AIR 1958 SC
578; State of Bombay v. S.N. Balsara, AIR 1951 SC 318; State of Bombay v. Anwar Ali Sarkar, AIR 1952 SC
75; Javed v. State of Haryana, (2003) 8 SCC 369, 380; Joshi D.D. v. Union of India, AIR 1983 SC 420.
150
Ratnapoorva Devi v. State of Orissa, AIR 1964 SC 1195.
151
Arvind P. Datar, Commentary on Constitution of India 99 (2nd ed. 2007).

22
necessary.152 Every State action must be informed by reason and it follows that an act
uninformed by reason is per se arbitrary.153

In Suraj Bhan Meena v. State of Rajasthan 154 the Supreme Court first struck down an attempt
by a State government to provide quotas in promotions on the ground that it had not
undertaken such a specific exercise to establish the inadequacy of representation of the
SC/STs.155

The difference which will warrant a reasonable classification need not be great.156 What is
required is that it must be real and substantial and must bear some just and reasonable relation
to the object of the legislation.157 There can be classes in a particular class. But law prohibits
creation of class without a rational basis.158 Where there is a real difference between two
categories of classes, there is a reasonable basis for sub-classification.159

The Constituent Assembly rejected the demand to do away with the requirement of
‘inadequacy of representation’ because it believed it would give the state unacceptable power
in terms of determining the beneficiaries in the context of the general equality protection
within the Constitution.160

Thus in the case of SC and ST’s who suffer from socio-economic backwardness, the
fundamental right to equality of opportunity justifies separate categorization for the purpose
of ‘adequate representation in the state services.’ 161 Although OBC may be socially or
educationally handicapped, they do not suffer the same social handicap inflicted upon SC/ST.
The object of reservation for SC/ST is to bring them into the main stream of national life,
while the objective for backward class reservation is to remove their social and educational
handicap. Thus, backward classes cannot form an integrated class with dalits and tribes for
Art 16 (4) or 15 (4).162

152
Kathi Ranging Rawat v. State of Saurashtra, AIR 1952 SC 123, 131.
153
Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245; See also Mohd. Shaheb Mahboob v. Dy.
Custodian, AIR 1961 SC 1657.
154
Suraj Bhan Meena v. State of Rajasthan, (2011) 1 SCC 467.
155
U.P. Power Corpn. Ltd. v. Rajesh Kumar, (2012) 7 SCC 1.
156
2, Durga Das Basu, Commentary on the Constitution of India, 3838 (8th ed. 2008)
157
Baburao v. State of Bombay, Housing Board, 1954 SCR 572; See also Suraj Mall v. Biswanath, AIR 1953 SC
545; See also LIC of India v. Consumer Education and Research Centre, AIR 1995 SC 1811.
158
Punjab Higher Qualified Teachers Union v. State of Punjab, (1988) 2 SCC 407.
159
ITO v. Murlidhar Bhagwan Das, AIR 1965 SC 342.
160
III, Constitutional Assembly Debates, 399-436.
161
ABSK Sangh v. Union of India, AIR 1981 SC 298.
162
Chattar Singh v. State of Rajasthan, AIR 1997 SC 303.

23
The Provision in favour of SC’S and ST’S are not privileges but a necessity. The word
privilege legally means

“a special right, advantage or benefit conferred on a particular person. It is a

peculiar advantage or favour granted to one person as against another to do certain
acts. Inherent in the term is the idea of something, apart and distinct from a common
right which is enjoyed by all persons and connotes some sort of special grant by the
sovereign”163

whereas the affirmative action in form of reservation provided to the economically,

educationally and socially backward communities-SC and ST were and still is a necessity and
not in any way and means a privilege.

It has been clearly established in Chapter VI in the case of Indra Sawhney v. Union of
India,164 which deals with ‘Social Justice, Merit and Privilege’ that merit in an elitist society
is not something inherent but is the consequence of environmental privileges enjoyed by the
members of higher castes. The scope for providing provisions thus is ruled out because there
was no privilege present for the SC’s and ST’s in the very first place. The affirmative action
provided to them through reservations was done in order to uplift them to an extent where
they would be recognized as equals in the society. Moreover, as mentioned in the facts, only
provisions in the favour of the SC and ST community were repealed. No action was taken
against the OBC’s which implies the vested political interest in the present matter of
reservations.

The provision of reservations for OBC was not originally present in the constitution and in
order to recognize OBC as backward in mentioned in the case of State of Kerala v. N.M
Thomas,165 Justice A.P Sen observed that the predominant and only factor for making special
provisions under Article 15(4) or 16(4) should be poverty and that caste should be used only
for the purpose of identification of groups comparable to ST’s and SC’s. This implies that
Reservation must be considered from the social objective angle, having regard to the
constitutional scheme, and not as a political issue and, thus, adequate representation must be
given to the members of the Scheduled Castes.”166

163
Raja Ram Pal v. Speaker, Lok Sabha &Ors on 10 January, 2007
164
165
State of Kerala v. N.M Thomas, AIR 1976 SC 490.
166
E.V.Chinnaiah v. State of Andhra Pradesh And Ors,(2004) 4 L.R.I. 705.

24
Social backwardness is a result of discrimination and the same is one of most pertinent
criterion as held in Indra Sawhney v.Union of India.167 Social upliftment for SC and ST
would mean acceptance in the mainstream society and elevation of social status but the
various act of atrocities and discrimination prove that they are still not being accepted as
unequals.

In the cases of K.C Vasant v. State of Karnataka168 and E.V Chinnaiah v. State of AP,169 In
the judgement in the case of Rajendran v. Union of India,170 it was observed that “caste is also
a class of citizens and if the class is a whole is socially and educationally backward,
reservations can be made in favour of such a caste on the ground that it was socially and
educationally backward of citizens within the meaning of Article 15(4).”

Dr. Ambedkar after the amendment was made in Article 15 inserted a sub clause in Article
15(4) is again instructive. He said:-
“Then with regard to Article 16, Clause (4), my submission is this that it is really
impossible to make any reservation which would not result in excluding somebody
who has a caste. I think it has to be borne in mind and it is one of the fundamental
principles which I believe is stated in Mulla's edition on the very first page that there
is no Hindu who has not a caste. Every Hindu has a caste-he is either a Brahmin or a
Mahratta or a Kundby or a Kumbhar or a carpenter. There is no Hindu-that is the
fundamental proposition-who has not a caste. Consequently, if you make a
reservation in favour of what are called backward classes which are nothing else but
a collection of certain castes, those who are excluded are persons who belong to
certain castes. Therefore, in the circumstances of this country, it is impossible to
avoid reservation without excluding some people who have got a caste.”

In State of Andhra Pradesh v. Balram, a case arising from Andhra Pradesh, a Division Bench
(Vaidyalingam and Mathew,JJ.) adopted the same approach and upheld the identification
made by Andhra Pradesh Government on the basis of caste.

167

168
K.C Vasant & Anothers v.State of Karnataka,1985 AIR 1495.
169
170
C.A Rajendran v. Union of India, AIR 1965 SC 507.

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