329. The Government action on the Mandal Report evoked spontaneous reaction all over the country. The controversy brought to the fore important constitutional issues for the determination of this Court. Nine-Judge Bench, specially constituted, has had a marathon hearing on various aspects of Article 16 of the Constitution of India. There are five judgments, from Brother Judges on Mandal Bench, in circulation. I have the pleasure of carefully reading these erudite expositions on various facets of Article 16 of the Constitution of India. I very much wanted to refrain from writing a separate judgment but keeping in view the importance of the issues involved and also not being able to persuade myself to agree fully with any of the judgments I have ventured to express myself separately. I may, however, say that on some of the vital issues I am in complete agreement with R.M. Sahai, J. The historical background and the factual matrix have been succinctly narrated by’ Brother Judges and as such it is not necessary for me to cover the same.
330. I propose to deal with the following issues in seriatim;
A. Whether “class” in Article 16(4) of the Constitution means “caste” ? Can caste be adopted as a collectivity to identify the backward clases for the purposes of Article 16(4) ?
B. Whether the expression “any backward class of citizens” in Article 16(4) means “socially and educationally backward classes” as it is in Article 15(4) ?
C. What is meant by the expression “any backward class of citizens …… not adequately represented in the Services under the State” in Article 16(4) ?
D. Whether Article 16(4) permits reservation of appointments or posts at the stage of initial entry into Government Services or even in the process of promotion ?
E. Whether Article 16(4) is exhaustive of the State-power to provide job-reservations ?
F. If Article 16(1) does not permit job-reservations, can protective discrimination as a compensatory measure permissible, in any other form under Article 16(1) ?
G. To what extent reservations are permissible under Article 16(4) ? Below 50% or to any extent ?
H. When a “backward class” has been identified, can a means-test be applied to skim-off the affluent section of the “backward class” ?
I. Can poverty be the sole criterion for identifying the “backward class” under Article 16(4).
J. Is it mandatory to provide reservations by a legislative Act or it can be done by the State in exercise of its executive power ?
K. Whether the identification of 3743 castes as a “backward class” by Mandal Commission is constitutionally valid ?
331. Mr. Ram Jethmalani appearing for the State of Bihar has advanced an extreme argument that the ‘class’ under Article 16(4) means ‘caste’. Mr. P. P. Rao on the other hand vehemently argued that the Constitution of India, with secularism and equality of opportunity as its basic features, does not brook an argument of the type advanced by Mr. Jethmalani. According to him caste is a closed door. It is not a path – even if it is – it is a prohibited path under the Constitution.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448