394. Legal aspects arising out of Article 16(4) have been discussed and decided. Finally, we have to examine the process of identification of the backward classes and test the same at the anvil of Article 16(4) as interpreted by us. Mandal Commission was set up on January 1, 1979 under Article 340 to identify the classes for the purposes of Article 164). The Commission identified 3743 backward castes and submitted its report on December 31, 1980. No action was taken on the Mandal Report by the successive governments for a decade. The Mandal Report was finally lifted from the Morgue by the government of the day which accepted the report and issued Memorandum dated August 13, 1990 providing reservations for 3743 backward castes identified by the Mandal Commission : Later on the successor government amended the reservation policy by the Memorandum dated September 25, 1991. These Memoranda have been reproduced in the judgments proposed by brother Judges. Both the Memoranda are based on the Mandal’ Report. The reservations provided under the two Memoranda are to be extended to, 3743 castes identified by the Mandal Commission. It is, therefore, necessary to find out whether the backward classes to which reservations under the Memoranda are being extended, have been constitutionally and validly identified. I do not agree with the theory – apparently without logic – that the Memoranda can be adjudicated dehors Mandal Report.
Elaborate arguments were addressed before us challenging the validity of Mandal Report by M/s. Palkhiwala, Venugopal, Shyamala Pappu and other learned counsel appearing for the petitioners. Agreeing with the learned counsel, I hold that the identification of 3743 castes as the ‘beneficiary-class’ for job reservations under Article 16(4), is wholly unconstitutional, invalid and cannot be acted upon. My reasons for holding so are as under:
i) The terms of reference require the Commission “to determine the criteria for defining the socially and educationally backward classes”. Assume that Mandal has done so. The reference and the Mandal Commission’s investigation is based on the legal fallacy that the expression “backward class of citizens” means the same thing as “socially and educationally backward classes of citizens” in Article 15(4). That is why the Commission was asked to identify socially and educationally backward classes. We have held that two expressions in Articles 16(4) and 15(4) do not mean the same thing. The classes to be identified under Article 16(4) cannot be confined only to social and educational backwardness. The definition therein is much wider and is not limited as under Article 15(4). It is thus, evident that the identification of the “backward classes” under Article 16(4) cannot be based only on the criteria of social and educational backwardness. Other classes which could have been identified on the basis of occupation, economic standards, environments, backward area residence, etc. etc. have been left out of consideration The identification done by Mandal is thus violative of Article 16(4) and as such cannot be sustained.
ii) It has been held by me that the backward classes for the purpose of Article 16(4) are the backward sections of the classes who are inadequately represented in the State-services. Admittedly, this exercise was not done. Mandal identified the castes on the criteria of social and educational backwardness.
iii) The Terms of Reference further required the Commission “to examine the desirability or otherwise of making provision for the reservation of appointments or tests ……. in public services”. This most vital part of the Terms of Reference was wholly ignored by the Commission. Before making its re – commendations the Commission was bound, by the Terms of Reference, to determine the desirability or otherwise of such reservations. The Commission did not at all investigate this essential part of the Terms of Reference.
iv) Mandal has not done any survey to find out as to whether 3743 castes which according to him are the backward classes, under Article 16(4), had inadequate representation ‘in the State services. There is no material on the record to show that 3743 castes identified by Mandal are not adequately represented in the State services. The condition of inadequacy is a condition precedent under Article 16(4) of the Constitution. This having not been established, the identification of the so-called “backward classes”, is wholly unconstitutional and inoperative.
v) Para 12.7 of the report indicates that the list of backward castes was prepared from the following sources :
1. Socio-educational field survey;
2. Census report of 1961;
3. Personal knowledge gained through extensive touring and from the evidence; and
4. Lists of other backward classes notified by various State Governments.
The so-called “socio-educational field survey”, was an eye-wash. Only two villages and one urban block in each district of the country was taken into consideration. According to the petitioners only .06% of the total villages in the country were surveyed. Mr. Venugapal relied on a chart showing the sources from which the list of castes was prepared by the Mandal Commission. The contents of chart were not disputed before us by the Union of India. Mr. Venugopal pointed out that out of 3743 castes only 406 were subjected to the socio-educational field survey. To be precise the chart shows that only 10.85% castes were subjected to survey and the remaining castes were picked up from other sources. The Commission set up for the purposes of identifying backward classes is under an obligation to conduct comprehensive survey. A backward class, identified on the sole test of caste and that also with only 10.85% socio-educational survey, cannot be constitutionally valid under Article 16(4).
Large number of castes were picked up by the Mandal Commission from the State lists. It was illustrated before us that out of 260 castes identified from the Union Territory of Pondicherry only 14 were subjected to socio-educational survey. One was identified on personal assessment of the Commission and the remaining 245 castes were picked up from the State list. These facts are not denied by the Union of India in the affidavit filed in writ petition 930/90. Similarly large number of castes were taken from the lists of other backward classes operating in the States. It was wholly illegal for the Commission to adopt the State lists without any investigation and survey. It is not disputed that no Commission was ever set-up in Pondicherry to identify the backward classes. There is nothing in the Mandal Report to show that the State lists which were adopted were ever prepared as a result of any survey, investigation or scrutiny. Mandal Report in Paras 2.63 and 2.64 specifically states that Haryana, Himachal Pradesh, Assam, Pondicherry, Rajasthan, Orissa, Meghalaya and Delhi have notified lists of Other Backward of backward Classes without their being any enquiry into their conditions. In Para 2.65 it is mentioned that Andaman and Nicobar, Arunachal Pradesh, Chandigarh, Dadra and Nagar Haveli, Goa, Daman and Diu, Lakshadweep, Madhya Pradesh, Manipur, Mizoram, Nagaland Sikkim, Tripura and West Bengal have never prepared a list of OBCs. If the State lists were to be declared as Other Backward Classes by the Central Government then no Commission under Article 340 was required an- Administrator could do the job. When 90% of the castes selected were not Subjected to the socio-educational survey it is impermisible to treat the said castes as backward classes.
1961 census was also taken as a source for preparing the list of backward castes. There is nothing on the record to show as to why Mandal relied on 1961 census when the 1971 census was available. A statement filed by Mr. Venugopal after examining the government records shows that the castes were also picked up from the Kaka Kalelkar Commission Report. In Para 1.13 Mandal condemns Kaka Kalelkar’s Report, even otherwise the said report was rejected by the Government of India in 1955 but still Mandal adopts castes from the said Report.
It is, thus, obvious that hardly any investigation was done by the Mandal Commission to find out the backward classes for the purposes of Article 16(4). A collection of so-called backward castes by a clerical-act, based on drawing-room investigation cannot be the backward classes envisaged under Article 16(4). If the castes enlisted by Mandal are permitted to avail the benefit of job-reservations, thereby depriving half the country’s population of its right under Article 16(1) the result would be nothing but a fraud on the Constitution.
vi) The Mandal Report virtually re-writes Article 16(4) by substituting caste for class. The caste has been made the sole and exclusive test for determining the backward classes. Every other test-economic or non-economic has been wholly rejected. Para 1.21 of Mandal Report states “the substitution of caste, by economic tests will amount to ignoring the genesis of social backwardness in the Indian society”. Paras 11.5 and 11.25 of the Mandal Report indicate that the caste was taken as a collectivity for the purposes of socio-educational survey. The “indicators” for determining social and educational backwardness were also applied to the castes alone. Every single piece of evidence and other material adverted to by the Commission was only for the purpose of determining whether a caste was backward. There was no investigation at all to find out whether a member or family in the caste was backward. The “Indicators” invoked to determine backwardness were invariably applied to the castes and not to the individuals. What emerges is that in the first instance only a caste was taken as a collectivity. Thereafter no individual or a family of that caste was subjected to the “indicators”. Only the castes were tested through the “indicators” and the result obtained. Thus the caste has been made the sole, paramount, overriding and decisive factor. The methodology based on caste alone is unconstitutional as it violates Articles 16(2) and 16(4) of the Constitution of India.
vii) The Mandal Report invents castes even for non-Hindus. The obsession with casteism and the desire to apply the same yardstick to all Indians impelled the Commission to identify backward classes among non-Hindus also by the exclusive test of caste (Paras 12.11 to 12.18) regardless of the fact that caste is anathema to Christianity, Islam and Sikhism. There are various other denominations and religions in the country like Buddhist, Jains, Arya Samajis, Lingayats etc. Who do not believe in casteism. The net-result is that almost 25% of the population was not taken into consideration by the Mandal Commission. The approach was anti-secular and against the basic features of the Constitution.
viii) The Mandal Commission has estimated the population of other backward classes in the country as 52%. To say the least the exercise to reach the figure of 52% is wholly imaginary. It is in the realm of conjecture. The conclusion arrived at in Para 12.22 of the Mandal Report to the effect that backward classes constitute nearly 52% of the Indian population is based on 1931 census. It is wholly arbitrary to count the population of backward classes in the country on the basis of census which took place fifty years before the report was submitted. In order to reach the conclusion of 52% Mandal has added up the population of scheduled castes, scheduled tribes, non-Hindu communities (Muslims, Christians, Sikhs, Buddhists, Jains) and the forward Hindu castes and communities (Brahmans, Rajputs, Marathas, Jats, Vashya – Baniya etc., Kayastha, other forward Hindu caste/groups) which make 56.30% of the total’ population. Mandal has assumed that the residual population of 43.70% (100 minus 56.30% equivalent to 43.70%) consists of backward classes. It is difficult to imagine how anybody can accept such an illusory and wholly arbitrary- calculations. It is pity that half of the country is being deprived of their fundamental right under Article 16(1) on the basis of the census exhumed from a sixty year old grave and the calculations which are unknown to logic and fair-play. Mandal further assumed, erroneously, that relative population growth of various communities at the time of Mandal Report was the same as at the time of 1931 census. It is absurd to think that there was no change in their population growth during the long period of 50 years. It is pertinent to observe that India of 1931 comprised of present India, Pakistan, Bangladesh, Burma and Sri Lanka and as such it would be wholly erroneous to relate the caste-based population situation of 1931 to that of 1980.
ix) According to Mandal Commission’s own showing the materials before the Commission were woefully inadequate. Essential data was non-existent. “Hardly any State was able to give the desired information (Para 9.4). As regards representation of OBCs in Government services, the information received by the Commission was “too sketchy and scrappy for any meaningful inference which may be valid for the country as a whole” (Para 9.14). “No State Government could furnish figures regarding the level of literacy and education amongst other backward class” (Para 9.30). “No lists of OBCs is maintained by the Central Government, nor their particulars are separately compiled in Government offices” (Para 9.47).
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448