Justice Kuldeep Singh[1]
387. Whether a group of citizens living below poverty line or under poverty-conditions can be considered a backward class under Article 16(4) ? In other words can a class of citizens be identified as backward solely on the basis of economic criterion ? Emphatic yes, is my answer.
388. Poverty is the culprit – cause of all kinds of backwardness. A poor man has no money. He lacks ordinary means of subsistence. Indigence keeps him away from education. Poverty breeds backwardness all around the class into which it strikes. It invariably results in social, economic and educational backwardness. It is difficult to perceive on what reasoning one can say that a class of citizens living under poverty-conditions is not a backward class under Article 16(4). The main reason advanced in this respect is that social backwardness being the mandatory criterion for the identification of backward class under Article 16(4), poverty alone cannot be the basis for backwardness in relation to Article 16(4). The other reason advanced is that in this country except for a small percentage of the population, the people are generally poor. The argument is that reservation for all is reservation for none. It is necessary to examine the two reasons on the anvil of logic.
389. This Court, over a period of four decades, has been interpreting the expression “backward class” in Article 16(4) to mean “socially and educationally backward” on the mistaken assumption that the expression “any backward class of citizens” in Article 16(4) means the same thing as “socially and educationally backward classes” in Article 15(4).
390. Based on elaborate reasoning I have held in Part B of this judgment that the expression “any backward class of citizens” in Article 16(4) cannot be confined to “socially and educationally backward classes”. The concept of “any backward class of citizens” in Article 16(4) is much wider than the “backward classes” defined under Article 15(4). It is not correct to say that social backwardness is an essential characteristic of the ‘backward class’ under, Article 16(4). The object of Article 16(4), as held by me in Part C of this judgment, is to provide job-reservations for the backward sections of those classes of citizens which are not adequately represented in the State-services. In the context of Article 16(4) the economic criterion is essentially relevant. On the interpretation of Article 16(4) as given by me in Parts B and C of this judgment, social backwardness is not the sine qua non for being a “backward class” under Article 16(4).
391. Even if it is assumed that a backward class under Article 16(4) means socially backward, any class of citizens living below poverty line would amply qualify to be a ‘backward class’. Poverty has a direct nexus to social backwardness. It is an essential and dominant characteristic of poverty. A rich belonging to backward caste ——– depending upon his disposition ——- may be or may not be socially backward, but a poor Brahmin struggling for his livelihood invariably suffers from social backwardness. The reality of present-day life is that the economic standards confer social status on individuals. A poor person, howsoever honest, has no social status around him whereas a rich smuggler moves in a high society. No statistics can hide the fact that there are millions of people, who belong to the so-called elite castes, are as poor and often a great deal poorer than a very large proportion of the backward classes. It is a fallacy to think that a person, though earning thousands of rupees or holding higher posts is still backward simply because he happen to belong to a particular caste or community whereas millions of people living below poverty line are forward because they were born in some other caste, or communities. Poverty never discriminates, it chooses its victims from all religions, castes and creeds. The pavement dwellers and the slum dwellers, belonging to different castes and religions, have a common thread of poverty around them. Are they not the backward classes envisaged under Article 16(4) ? Poverty binds them together as a class. Classes of citizens living in chronic-cramping poverty are per se socially backward. Poverty runs into generations. It may be a result of the social or economic inequality of the past. During the British regime several communities who fought the Britishers and those who actively participated in the freedom struggle, were deliberately kept below the poverty line. There are vast areas in India, like Kalahandi in Orissa, which are perennially poverty stricken. By and large poverty in this country is a historical factor. Looked from any angle it is not possible to hold that the citizens of India who are living under poverty-conditions or below poverty line are not socially backward. It would be doing violence to the object, purpose and the language of Article 16(4) to say that the poor of the country are not eligible for job-reservations under the said Article.
392. Simply because the bulk of the population of this country is poor and there may be a large number of claimants for the reserved-jobs that is no ground to deny the, poor their right under Article 16(4). This reasoning will apply to the other backward classes with much more force. Mandal has identified 52% of the population as backward. Apart from that 22% are scheduled castes and scheduled tribes. Those who are canvassing reservations for 74% of the so-called backward classes have no basis whatsoever to say that 40% poor of the country be denied the benefit of job-reservations. The poor can be classified on the basis of income, occupation, conditions of living such as slum dwellers, pavement dwellers etc. and priorities worked out. They can be operationally defined, categorised, sub-categorised and thereafter the backward sections can be identified for the purposes of Article 16(4). It is high time that we leave the dogmatic approach of making reservation in public services on the basis of caste as a symbol of social backwardness. We must adopt A practical measure to confining it only to low income groups of people having unremunerative occupations whose talents and abilities are subdued under the weight of poverty. I, therefore, hold that a backward class for the purposes of Article 16(4) can be identified solely on the basis of economic criteria.
393. This question has been examined by Brother Judges and they have held that the reservations can be provided by the Parliament, State Legislatures, statutory rules as well as by way of Executive Instructions issued by the Central Government and the State Governments from time to time. The Executive Instructions can be issued only when there are no statutory provisions on the subject. Executive Instructions can also be issued to supplement the statutory provisions when those provisions are silent on the subject of reservations. These propositions of law are unexceptionable and I reiterate the same. I however, make it clear that any Executive Instruction (issued under Articles 16(4), 73 or 162 providing reservations, which goes contrary to statutory provisions or the rules under Article 309 or any other statutory rules, shall not be operative to the extent it is contrary to the statutory provisions/rules.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448