Justice R.M. Sahai [1]
606. After applying these tests, the economic criteria or the means test should be applied. Poverty is the prime cause of all backwardness. It generates social and educational backwardness. But wealth or economic affluence cuts across all. A wealthy man irrespective of caste or community needs no crutches. Not in 1990 when money more than social status and education have become the index. Therefore, even if a group or collectivity is not educated or even socially backward but otherwise rich and affluent then it cannot be considered backward. There is no dearth of class or group who by the nature of their occupation have been pursuing are economically well off. Including such groups would be doing injustice to others. Thus occupation should furnish the starting point of determination of backward class. And if in ultimate analysis any Hindu caste is found to be occupationally, socially, educationally and economically backward it should be regarded as eligible for benefit under Article 16(4) because it would be within constitutional sanction.
607. Identification alone does not entitle a group or class to be entitled for protective benefits. Such group or collectivity should be inadequately represented. Use of such words as adequate or inadequate are no doubt wide and vague and their meaning has to be gathered, ‘largely on the point of view from which the facts may be proved are reconsidered’.
But from the purpose and objective of Article 16(4) a collectivity or group which is found to be backward cannot qualify for being included if it is adequately represented. Word ‘any’ has great significance. In wider sense it extends and includes all group or collectivity, which is as much ‘any’ backward class as any singularity. In the larger sense comprising of entire plurality it continues and may continue but in the limited sense the group may keep on getting in and out depending on continuance of those conditions entitled it to be determined as backward. A government of a State or the Central Government may on evaluation after five or ten years direct a group or collectivity to be excluded from the list of backward classes if it finds it adequately represented. What is adequate representation is of course the primary concern of the government. But the exercise should be objective. For instance in some States it was found by Commissions appointed by their governments that certain castes were adequately represented. yet because of extraneous reasons the government had to bow and include them in the list of backward classes. Such inclusion is a fraud of constitutional power. Any citizen has a right to challenge and court has obligation to strike it down by directing exclusion of such group from the backward class. Inadequacy provides jurisdiction not only for exercise of power but its continuance as well. If that itself ceases to exist the power cannot be continued to be exercised. Where power is coupled with duty the condition precedent must exist for valid exercise of power. Mere identification of collectivity or group by a Commission cannot clothe the government to exercise the power unless it further undertakes the exercise if such group or collectivity is adequately of inadequately represented. The exercise is mandatory not in the larger sense alone but in the narrower sense as well.
608. More important that determination of backward class is the proportion in which reservation can be done as it is not only a social or economic problem or the question of empowering but a constitutional and legal issue which calls for serious deliberation. Although political statesmanship of the framers of the Constitution intended to confine it to ‘minority of seats’ the judicial pragmatism raised it to ‘broadly and generally’ to less than 50% in Balaji and not beyond that in Devadason. Effect of these two decisions was that the reserved and non-reserved seats both for purposes of admission in educational institution under Article 15(4) and for appointment and posts in Article 16(4) were divided in half and half. But once the reservation climate spread in the country’s environment it took over the political set up of different States to provide for reservation for different groups for different reasons. And legal justification for such reservation was provided for by the courts, either on the touchstone of Article 14 being a reasonable classification or under Article 16(1) as preferential treatment for disadvantaged groups. If in Chitra Ghosh the provision for government ‘nominees in medical colleges. was upheld, ‘as the government which bears the financial burden of running medical colleges could not be, ‘denied the right to decide from what courses the admission will be made’ then Chanchala did not find it unreasonable to extend the principle of preferential treatment, of socially and educationally backward in Article 15(4), to children of political sufferers as ‘it would not in any way be improper if that principle were to be applied to those who are handicapped but do not fall under Article 15(4). The reservation in favour of wards of defence personnel was upheld as a reasonable classification in Subhashini as the reservation was in national interest. Result of such extensions and justification was multiplication of categories and withdrawal of more and more seats and posts from open competition. And when observations were made in Thomas (AIR 1976 Supreme Court 490) that 50% was, a rule of caution’ and, ‘percentage of reservation in proportion to population did not violate Article 16(4)’, a virtual go by was given by various states to the balancing equality created by courts and reservations were made much beyond 50% and the High Courts had no option but to uphold them. Thus the combined effect of these principles, developed by Balaji (AIR 1963 Supreme Court 649) and Devadason, (AIR 1964 Supreme Court 179) on the one hand and Chitra Ghosh, Chanchala and Thomas on the other was that reservation up to 50% under Articles 15(4) and 16(4) and up to, ‘reasonable extent’ under Article 16(1). Under one it became SC/ST and BC and under other wards of Military and Defence Personnel, political sufferers, spormman, Children of MISA and DSIR detenue etc. Is this sound either constitutionally or legally or socially?
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448