Justice P.B. Sawant[1]
Question V :
Does Article 16(4) permit the classification of ‘Backward Classes’ into backward Classes and Most Backward Classes or permit classification among them based on economic or other considerations ?
520. This question is really in two parts and the two do not mean and refer to the same classification. The first part refers to the classification of the backward classes into backward and most backward classes while the second speaks of internal classification of each backward class, into backward and more backward individuals or families. Both classifications are to the made on economic or other considerations. Whereas the first classification will place some backward classes in their entirety above other backward classes, the second will place some sections in each backward class internally above the other sections in the same class. The second classification aims at what has popularly come to be known as weeding out of the so-called “creamy” or “advanced sections” from the backward classes. Although it is not that clear, the second order probably seeks to do it. We may first deal with the second classification.
521. 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 birth mark. 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. On the other hand, to continue to confer upon such advanced sections from the backward classes the special benefits, would amount to treating equals unequally violating the equality provisions of the Constitution. Secondly, to rank them with the rest of the backward classes would equally violate the right to equality of the rest in those classes, since it would amount to treating the unequals equally. What is more, it will lead to perverting the objectives of the special constitutional provisions since the forwards among the backward classes will thereby be enabled to lap up all the special benefits to the exclusion and at the cost of the rest in those classes, thus keeping the rest in perpetual backwardness. The object of the special constitutional provisions is not to uplift a few individuals and families in the backward classes but to ensure the advancement of the backward classes as a whole. Hence, taking out the forwards from among the backward classes is not only permissible but obligatory under the Constitution. However, it is necessary to add that just as the backwardness of the backward groups cannot be measured in terms of the forwardness of the forwared groups, so also the forwardness of the forwards among the backward classes cannot be measured in terms of the backwardness of the backward sections of the said classes. It has to be judged on the basis of the social capacities gained by them to compete with the forward classes. So long as the individuals belonging to the backward classes do not develop sufficient capacities of their own to compete with others, they can hardly be classified as forward. The moment, however, they develop the requisite capacities, they would cease to be backward. It will be a contradiction in terms to call them backward and others more or most backwards. There will always be degrees of backwardness as there will be degrees of forwardness, whatever the structure of the society. It is not the degrees of backwardness or forwardness which justify classification of the society into forward and backward classes. It is the capacity or the lack of it to compete with others on equal terms which merits such classification. The remedy therefore, does not lie in classifying each backward class internally into backward and more backward, but in taking the forward from out of the backward classes altogether. Either they have acquired the capacity to competent with others or not. They cannot be both.
522. The mere fact further that some from the backward classes who are more advanced than the rest in that class or score more in competition with the rest of them and thus gain all the advantages of the special provisions such as reservations, is no ground for classifying the backwards into backwards and most backwards. This phenomenon is evident among the forward classes too. The more advantaged among the forwards similarly gain unfair advantage over others among the forwards and secure all the prizes. This is an inevitable consequence of the present social and economic structure. The correct criterion for judging the forwardness of the forwards among the backward classes is to measure their capacity not in terms of the capacity of others in their class, but in terms of the capacity of the members of the forward classes, as stated earlier. If they cross the Rubicand of backwardness they should be taken out from the backward classes and should be made disentitled to the provisions meant for the said classes.
523. It is necessary to highlight another allied aspect of the issue, in this connection. What do we mean by sufficient capacity to compete with others ? Is it the capacity to compete for Class-IV or Class-III or higher class posts ? A Class-IV employee’s children may develop capacity to compete for Class III posts and in that sense, he and his children may be forward compared to those in his class who have not secured even Class-IV posts. It cannot, however, be argued that on that account, he has reached the “creamy” level. If the adequacy of representation in the services as discussed earlier, is to be evaluated in terms of qualitative and not mere quantitative representation, which means representation in the higher rungs of administration as well, the competitive capacity should be determined on the basis of the capacity to compete for the higher level posts also. Such capacity will he acquired only when the backward sections reach those levels or at least, near those levels. Till that time, they cannot be called forwards among the backward classes, and taken out of the backward classes.
524. As regards the second part of the question, in Balaji (AIR 1963 Supreme Court 649) it is observed that the backward classes cannot be further classified in backward and more backward classes. These observations, although made in the context of Article 15 (4) which fell for consideration there, will no doubt be equally applicable to Article 16(4). The observations were made while dealing with the recommendations of the Nagan Gowda Committee appointed by the State of Karnataka which had recommended the classification of the backward communities into two divisions, the Backward and the More Backward. While making those recommendations the Committee had applied one test, viz., “was the standard of education in the community in question less than 50% of the State average ? If it was, the community was regarded as more backward; if it was not, the community was regarded as backward”. The Court opined that the sub-classification made by the Report and the order based thereupon was not justified under Article 15(4) which authorises special provision being made for ‘really backward classes’. The Court further observed that in introducing two categories of backward classes, what the impugned order in substance purported to do was to devise measures “for the benefit of all the classes of citizens who are less advanced compared to the most advanced classes in the State”. That, according to the Court, was not the scope of Article 15(4). The result of the method adopted by the impugned order was that nearly 90% of the population of the State was treated as Backward and that, observed the Court, illustrated how the order in fact divided the population of the State into most advanced and the rest, putting the latter into two categories of the Backward and the More Backward. Thus, the view taken there against the sub-classification was on the facts of that case which showed that almost 90% of the population of the State was classified as backward, the backwardness of the Backward (as against that of the More Backward) being measured in comparison to the most advanced classes in the State. Those who were less advanced than the most advanced, were all classified as Backward. The Court held that it is the More Backward or who were really backward who alone would be entitled to the benefit of the provisions of Article 15(4). In other words, while the More backward were classified there rightly as backward, the Backward were not classified rightly as backward.
525. It may be pointed out that in Vasanth Kumar (AIR 1985 Supreme Court 1495), Chinnappa Reddy, J. after referring to the aforesaid view in Balaji (AIR 1963 Supreme Court 649) observed that “the propriety of such test may be open to question on the facts of each case but there was no reason why on principle there cannot be a classification into backwards and More backwards if both classes are not merely a little behind, but far far behind the most advanced classes. He further observed that in fact, such a classification would be necessary to help the More Backward classes; otherwise those of the backward classes who might be a little more advanced than the more backward classes, would walk away with all the seats just as if reservation was confined to the More Backward classes and no reservation was made to the slightly more advanced of the backward classes, the backward classes would gain no seats since the advanced classes would walk away with all the seats available for the general category”. With respect, this is the correct view of the matter. Whether the backward classes can be classified into Backward and More Backward, would depend upon the facts of each case. So long as both backward and more backward classes are not only comparatively but substantially backward than the advanced classes, and further, between themselves, there is a substantial difference in backwardness, not only it is advisable but also imperative to make the sub-classification if all the backward classes are to gain equitable benefit of the special provisions under the Constitution.
To give an instance, the Mandal Commission has, on the basis of social, educational and economic indicators evolved 22 points by giving different values to each of the three factors, viz., social, educational and economic. Those social groups which secured 22 points or above have been listed there as “socially and educationally backward” and the rest as “advanced”. Now, between 11 and 22 points some may secure, say, 11 to 15 points while others may secure all 22 points. The difference in their backwardness is, therefore, substantial. Yet another illustration which may be given is from Karnataka State Government order dated 13th October, 1986 on reservation issued after the decision in Vasant Kumar where the backward classes are grouped into five categories, viz., A, B, C, D and E. In category A, fall such castes or communities as that of Bairagi, Banjari and Lambadi which are nomadic tribes, and Bedaru, Ramoshi which were formerly stigmatised as criminal tribes whereas in category D fall such castes as Kshatriya and Rajput. To lump both together would be to deny totally the benefit of special provisions to the former, the latter taking away the entire benefits. On the other hand, to deny the status of backwardness to the latter and ask them to compete with the advanced classes, would leave the latter without any seat or post. In such circumstances, the sub-classification of the backwad classes into backward and more or most backward is not only desirable but essential. However, for each of them a special quota has to be prescribed as is done in the Karnataka Government order. If it is not done, as in the present case, and the reserved posts are first offered to the more backward and only the remaining to the backward or less backward, the more backward may take away all the posts leaving the backward with no posts. The backward will neither get his post in the reserved quota nor in the general category for want of capacity to compete with the forward.
526. Hence, it will have to be held that depending upon the facts of each case, sub-classification of the backward classes into the backward and more or most backward would be justifiable provided separate quotas are prescribed for each of them.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448