Justice R.M. Sahai [1]
802. The other aspect to be considered is whether the backwardness contemplated in Article 16(4) is social backwardness or educational backwardness or whether it is both social and educational backwardness. Since the decision in Balaji (AIR 1963 Supreme Court 649), it has been assumed that the backward class of citizens contemplated by Article 16(4) is the same as the socially and educationally backward classes, Scheduled Castes and Scheduled Tribes mentioned in Article 15(4).
Though Article 15(4) came into existence later in 1951 and Article 16(4) does not contain the qualifying words socially and educationally’ preceding the words “backward class of citizens” the same meaning came to be attached to them. Indeed, it was stated in Janaki Prasad Parimoo (AIR 1973 Supreme Court 930) (Palekar, J. speaking for the Constitution Bench) that :
“Article 15(4) speaks about socially and educationally backward classes of citizens.” However, it is now settled that the expression “backward class of citizens” in Article 16(4) means the same thing as the expression “any socially and educationally backward class of citizens” in Article 15(4). In order to qualify for being called a ‘backward class citizen’ he must be a member of a socially and educationally backward class. It is social and educational backwardness of a class which is material for the purposes of both Articles 15(4) and 16(4).
803. It is true that no decision earlier to it specifically said so, yet such an impression gained currency and it is that impression which finds expression in the above observation. In our respectful opinion, however, the said assumption has no basis. Clause (4) of Article 16 does not contain the qualifying words’ “socially and educationally” as does clause (4) of Article 15. It may be remembered that Article 340 (which has remained unamended) does employ the expresion ‘socially and educationally backward classes’ and yet that expression does not find place in Article 16(4).
The reason is obvious: “backward class of citizens” in Article 16(4) takes in Scheduled Tribes, Scheduled Castes and all other backward classes of citizens including the socially and educationally backward classes. Thus, certain classes which may not qualify, for Article 15(4) may qualify for Article 16(4). They may not qualify for Article 15(4) but they may qualify as backward class of citizens for the purposes of Article 16(4).
It is equally relevant to notice that Article 340 does not expressly refer to services or to reservations in services under the State, though it may be that the Commission appointed thereunder may recommend reservation in appointments/posts in the services of the State as one of the steps for removing the difficulties under which SEBCs are labouring and for improving their conditions.
Thus, SEBCs referred to in Article 340 is only one of the categories for whom Article 16(4) was enacted; Article 16(4) applies to a much larger class than the one contemplated by Article 340. It would, thus, be not correct to say that ‘backward class of citizens’ in Article 16(4) are the same as the socially and educationally backward classes in Article 15(4). Saying so would mean and imply reading a limitation into a beneficial provision like Article 16(4). Moreover, when speaking of reservation in appointments/posts in the State services – which may mean, at any level whatsoever insisting upon educational backwardness may not be quite appropriate.
804. Further, if one keeps in mind the context in which Article 16(4) was enacted it would be clear that the accent was upon social backwardness. It goes without saying that in Indian context, social backwardness leads to educational backwardness and both of them together lead to poverty – which in turn breeds and perpetuates the social and educational backwardness. They feed upon each other constituting a vicious circle.
It is a well-known fact that till independence the administrative apparatus was manned almost exclusively by members of the ‘upper’ castes. The Shudras, the Scheduled Castes and the Scheduled Tribes and other similar backward social groups among Muslims and Christians had practically no entry into the administrative apparatus. It was this imbalance which was sought to be redressed by providing for reservations in favour of such backward classes.
In this sense Dr. Rajiv Dhawan may be right when he says that the object of Article 16(4) was “empowerment” of the backward classes. The idea was to enable them to share the state power. We are, accordingly, of the opinion that the backwardness contemplated by Article 16(4) is mainly social backwardness. It would not be correct to say that the backwardness under Article 16(4) should be both social and educational.
The Scheduled Tribes and the Scheduled Castes are without a doubt backward for the purposes of the clause; no one has suggested that they should satisfy the test of social and educational backwardness. It is necessary to state at this stage that the Mandal Commission appointed under Article 340 was concerned only with the socially and educationally backward classes contemplated by the said Article.
Even so, it is evident that social backwardness has been given precedence over others by the Mandal Commission – 12 out of 22 total points. Social backwardness – it may be reiterated — leads to educational and economic backwardness. No objection can be, nor is taken, to the validity and relevancy of the criteria adopted by the Mandal Commission.
For a proper appreciation of the criteria adopted by the Mandal Commission and the difficulties in the way of evolving the criteria of backwardness, one must read closely chapters III and XI of Volume I along with Appendixes 12 and 21 in, Volume II Appendix XII is the Report of the Research Planning Team of the Sociologists while Appendix 21 is the ‘Final List of Tables’ adopted in the course of socio-educational survey. In particular, one may read paras 11.18 to 11.22 in Chapter XI, which are quoted hereunder for ready reference:
“11. 18. Technical Committee constituted a Sub-Committee of Experts (Appendix-20, Volume II) to help the Commission prepare ‘Indicators of Backwardness’ for analysing data contained in computerised tables. After a series of meetings and a lot of testing of proposed indicators against the tabulated data, the number of tables actually required for the Commission’s work was reduced to 31 (Appendix-21, Volume II). The formulation and refinement of indicators involved testing and validating checks at every stage.
11. 19. In this connection, it may be useful to point out that in social sciences no mathematical formulae or precise benchmarks are available for determining various social traits. A survey of the above type has to be read warily on unfamiliar ground and evolve its own norms and bench-marks. This exercise was full of hidden pitfalls and two simple examples are given below to illustrate this point.
11.20. I Balaji’s case (AIR 1963 Supreme Court 649) the Supreme Court held that if a particular community is to be treated as educationally backward, the divergence between its educational level and that of the State average should not be marginal but substantial. The Court considered 50% divergence to be satisfactory. Now, 80% of the population of Bihar (1971 Census) is illiterate. To beat this percentage figure by a margin of 50% will mean that 120% members of a caste/class should be illiterates. In fact it will be seen that in this case even 25% divergence will stretch us to the maximum saturation point of 100%.
11.21. In the Indian situation where vast majority of the people are illiterate, poor or backward, one has to be very careful in setting deviations from the norms as, in our conditions, norms themselves are very low. For example, Per Capita Consumer Expenditure for 1977-78 at current prices was Rs. 991 per annum.
For the same period, the poverty line for urban areas was at Rs. 900 per annum and for rural areas at Rs. 780. It will be seen that this poverty line is quite close to the Per Capita Consumer Expenditure of an average Indian. Now following the dictum of Balaji case, if 50% deviation from this average Per Capita Consumer Expenditure was to be accepted to identify economically backward classes, their income level will have to be 50% below the Per Capita Consumer Expenditure i.e. less than Rs. 495.5 per year. This figure is so much below the poverty line both in urban and rural areas that most of the people may die of starvation before they qualify for such a distinction.
11.22. In view of the above, Indicators for Backwardness were tested against various cut-off points. For doing so, about a dozen castes well-known for their social and educational backwardness were selected from amongst the casts covered by our survey in a particular State. These were treated as ‘Control’ and validation checks were carried out by testing them against ‘Indicators’ at various cut-off points.
For instance one of the Indicators’ for social backwardness is the rate of student dropouts in the age group 5-15 years as compared to the State average. As a result of the above tests, it was seen that in educationally backward castes this rate is at least 25 per cent above the State average. Further, it was also noticed that this deviation of 25% from the State average in the case of most of the ‘Indicators’ gave satisfactory results. In view of this, wherever an ‘Indicator’ was based on deviation from the State average, it was fixed at 25% because a deviation of 50% was seen to give wholly unsatisfactory results and, at times, to create anomalous situations. “
It is after these paragraphs that the Report sets out the indicators (criteria) evolved by it, set out in Paras 11.23 and 11.24 of the Report.
806. The S.E.B.Cs referred to by the impugned Memorandum are undoubtedly ‘backward class of citizens’ within the meaning of Article 16(4).
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448