Justice P.B. Sawant[1]
Question VII:
Will the extent of judicial review be limited or restricted in regard to the Identification of Backward Classes and the percentage of reservations made for such classes, to a demonstrably perverse identification or a demonstrably unreasonable percentage?
530. The answer to the question lies in the question itself. There are no special principles of judicial review nor does the scope of judicial review expand when the identification of backward classes and the percentage of the reservation kept for them is called in question. So long as correct criterion for the identification of the backward classes is applied, the result arrived at cannot be questioned on the ground that other valid criteria were also available for such identification. It is possible that the result so arrived at may be defective marginally or in marginal number of cases. That does not invalidate the exercise itself. No method is perfect particularly when sociological findings are in issue. Hence, marginal defects when found may be cured in individual cases but the entire finding is not rendered invalid on that account.
531. The corollary of the above is that when the criterion applied for identifying the backward classes is either perverse or per se defective or unrelated to such identification in that it is calculated to give the result or is calculated to give, by the very nature of the criterion, a contrary or unintended result, the criterion is open for judicial examination.
532. The validity of the percentage of reservation for backward classes would depend upon the size of the backward classes in question. So long as it is not so excessive as to virtually obliterate the claims of others under Clause 16(1), it is not open to challenge. However, it is not necessary, and Article 16(4) does not suggest, that the percentage of reservation should be in proportion to the percentage of the population of the backward classes to the total population. The only guideline laid down by Article 16 (4), as pointed out elsewhere, is the adequacy of representation in the services. Within the said limits, it is in the discretion of the State to keep the reservations at reasonable level by taking into consideration all legitimate claims and the relevant factors. In this connection, the law laid down directly on the subject in the following decisions is worth recounting :
533. In Balaji (AIR 1963 Supreme Court 649), the Court struck down the impugned order of reservations on the ground that it had categorised the backward classes on the sole basis of caste and also on the ground that the reservations made were to the extent of 68% which the Court held was inconsistent with the special provision and authorised by Article 15(4). The Court further held that for these two reasons the impugned order was a fraud on the constitutional power conferred on the State by Article 15(4). It may be pointed out at the cost of repetition, that the second reason was based on the premise that clause (4) was an exception to clauses (1) and (2) of Article 15, and that the exception had a numerical relationship with the rule.
534. In Devadasan (AIR 1964 Supreme Court 179) the majority held that the ‘carry forward’ rule which resulted in the particular year in reserving 65% of the posts for Scheduled Castes and Scheduled Tribes, was unconstitutional since the reservations exceeded 50% of the vacancies. According to the Court, though under Article 16(4), reservation of reasonable percentage of posts for the members of the Scheduled Castes and the Scheduled Tribes was within the competence of the State, the method evolved must be such as to strike reasonable balance between the claims of the backward classes and those of the other employees in order to effectuate the guarantee contained in Article 16(1), and that for this purpose each year of recruitment would have to be considered by itself. With respect, the majority decision was based on the reasoning of Balaji to which a reference has already been made. Justice Subba Rao from this line of reasoning and it is his reasoning which came to be accepted later both in Thomas (AIR 1976 Supreme Court 490) and Vasanth Kumar (AIR 1985 Supreme Court 1495).
535. In P. Sagar ((1968) 3 SCR 595), the Court upheld the decision of the High Court and dismissed the State’s appeal on the ground that there was no material placed before the Court to show that the list of backward classes was prepared in conformity with the requirements of Article 15(4). The Court held that the list prepared was ex facie based on castes or communities, and was substantially the same which was struck down by the High Court in P. Sukhadev v. The Government of Andhra Pradesh, ((1966) 1 Andhra WR 294).
536. In Periakaruppan, ((1971) 2 SCR 430) (AIR 1971 Supreme Court 2303) it was observed that the list of backward classes is open to judicial review and the Government should always keep under review the question of reservations of seats, and only those classes which are really socially and educationally backward should be allowed to have the benefit of reservation. The reservation of seats should not be allowed to become a vested interest and since in that case the candidates of backward classes had secured 50% of the seats in the general pool, it, according to the Court, showed that the time had come for a de novo comprehensive examination of the question. In other words, it is laid down in this case that if some backward classes which are advanced continue to be, or are included in the list of, backward classes, the list can be questioned and a judicial scrutiny of the list will be permissible.
537. In Hira Lal (AIR 1971 Supreme Court 1777) (supra), it is observed that if the reservations made under Article 16(4) make the rule in Article 16(1) meaningless, the decision of the State would be open to judicial review. But the burden of establishing that a particular reservation is offensive to Article 16(1), is on the person who takes the plea.
538. To sum up, judicial scrutiny would be available (i) if the criterion inconsistent with the provisions of Article 16 is applied for identifying the classes for whom the special or unequal benefit can be given under the said Article; (ii) if the classes who are not entitled to the said benefit are wrongly included in or excluded from the list of beneficiaries of the special provisions. In such cases, it is not either the entire exercise or the entire list which becomes invalid, so long as the tests applied for identification are correct and the inclusion or exclusion is only marginal; and (iii) if the percentage of reservations is either disproportionate or unreasonable so as to deny the equality of opportunity to the unreserved classes and obliterates Article 16(1). Whether the percentage is unreasonable or results in the obliteration of Article 16(1), so far as the unreserved classes are concerned, it will depend upon the facts and circumstances of each case, and no hard and fast rule of general application with regard to the percentage can be laid down for all the regions and for all times.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448