Justice R.M. Sahai [1]
578. Caste has never been accepted by this Court as exclusive or sole criteria for determination or identification of backward class. That is why the communal Government Order in Champakam (AIR 1951 Supreme Court 226) and reservation, except for SC/ST and Hindu backward, Venkataramana*79 were invalidated. Caste based evil was so repugnant that even when communal Government Order issued by the State of Madras a legacy of caste based reservation practised in Madras since thirties and forties was struck down and the Constitution was amended and Article 15(4) was added the basic philosophy against the caste was neither eroded nor mitigated and ameliorative steps were made State-responsibility or socially and eduationally backward castes. Balaji (AIR 1963 Supreme Court 49) adopted test of, comparability of backward classes with Scheduled Caste and Scheduled Tribe as a result of combined reading of Article 340(1) and Article 338(3). Two major drawbacks were noticed in identifying backward class with caste, one, ‘it may not always be legal and may perhaps contain the vice of perpetuating the caste’, and other ‘if the caste of the group of citizens was made the sole basis for determining the social backwardness of the social group, the test would inevitably break down in relation to many sections of Indian society which do not recognise caste in the conventional sense known to Hindu society’ In Chitralekha (AIR 1964 Supreme Court 1823) the Court Observed that ‘caste is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of this Court (Balaji) which precludes the authority concerned from determining the social backwardness of a group of citizens if it, can do so without reference to caste’. P. Rajendran (AIR 1968 Supreme Court 1012) too did not differ with Balaji nor it carved out any new path. The court accepted the determination of backward class as, the explanation given by the State of Madras had not been controverted by any rejoinder affidavit. The Court observed, ‘that though the list shows certain caste the member of those castes are classes of educationally and socially backward citizens’. In Sagar (AIR 1968 Supreme Court 1379) the Court was concerned with a list where backwardness was determined amongst other on caste taking it as one of the relevant test for determination of backwardness. Therefore, the Court agreeing with Balaji (AIR 1968 Supreme Court 649) observed, ‘in determining whether a particular section forms a class caste cannot be excluded altogether. But in the determination of a class a test solely based upon caste or a community cannot also be accepted’. In Peeriakaruppan (AIR 1971 Supreme Court 2303) it was observed that, ‘a caste has always been recognised as a class’. Support for this was sought from Rajendran and it was observed that it was authority ‘for the proposition that the classification of backward classes on the basis of caste is within the purview of Article 15(4) if those castes are shown to be socially and educationally backward. But Rajendran was decided as the caste included, in the list were in fact socially and educationally backward. Balram, too, followed the same and relying on Rajendran, Sagar and Peeriakaruppan upheld the test as entire caste was found to be socially and economically backward. Caste, ipso facto, is not class in secular State was said in Soshit Karamchari (AIR 1981 Supreme Court 298). In Jayshree it was held that caste could not be made the sole basis for reservation. Ratio in Rajendran, Sagar, Balrarn and Peeriakaruppan are wrongly understood and erroneously applied. All these decisions turned on facts as the Court in each case upheld the classification not because it was done on caste but those included in the list deserved the protection. Different streams of thought may appear from various decisions but none has accepted, caste as the sole criteria for determination of backwardness.
579. ‘Backward class’ in Article 16(4) thus cannot be read as backward caste. What is the scope then ? Is it social backwardness, educational backwardness, economic backwardness, social and economic backwardness, natural backwardness etc. ? In absence of any indication expressly or impliedly any group of collectivity which can be legitimately considered as, ‘backward’ for purpose of representation in service would be included in the expression ‘backward class’. Word ‘any’ is indicative of that the backward class was not visualised in singular. When Constitution was framed the anxiety was to undo the historical backwardness. Yet a word of wider import was used to avoid any close-door policy. For instance, backwardness arising out of national reasons was never contemplated. But today with developments of human right effort is being made to encourage those on whom nature has not been so kind. Do such persons not form a class ? Are they not backward ? They cannot, obviously compete on equal level with others. Backwardness which the Constitution makers had to tackle by making special provision, due to social and economic condition, was different but that does not exclude backwardness arising due to different reasons in new set up.
580. Although dictionarily the word ‘any’ may mean one or few and even all yet the meaning of a word has to be understood in the context it has been used. In Article 18(4) it cannot mean all as it would render the whole Article unworkable. The only, reasonable, meaning that can be attributed to it is that it should be the States’ discretion to pick out one or more than one from amongst numerous groups or collectivity identified or accepted as backward class for purposes of reservation. Whether such picking is reasonable and satisfies the test of judicial review is another matter. That explains the rationale for the non obstante clause being discrietionary and not mandatory. A State is not bound to grant reservation to every backward class. In one State or at one place or at one point of time it may-be historical and social backwardness or geographical and habitational backwardness and at another it may be social and educational or backwardness arising out of natural cause.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448