Thomman J.1
Summary :
(1) It is open to the State to adopt valid classification and make special provisions for the protection of classes of citizens whose comparative backwardness the State has a mandate to redress by affirmative action programmes. Any such programme must be strictly tailored to the constitutional requirement that no citizen shall be excluded from being considered on the basis of merits for any public employment except to the extent that a valid reservation has been made in favour of backward classes of citizens.
(2) The Constitution prohibits discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. Any discrimination solely on any one or more of these prohibited grounds will result in invidious reverse discrimination which is impermissible. None of these grounds is the sole or the dominant or the indispensable criterion to identity backwardness which qualifies for reservation. But each of them is, in conjunction with factors such as poverty, illiteracy, demeaning occupation, malnutrition, physical and intellectual deformity and like disadvantages, a relevant criterion to identify socially and educationally backward classes of citizens for whom reservation is intended.
(3) Reservation contemplated under Article 16 is meant exclusively for backward classes of citizens who are not adequately represented in the services under the State.
(4) Only such classes of citizens who are socially and educationally backward are qualified to be identified as backward classes. To be accepted as backward classes for the purpose of reservation under Article 15 or Article 16, their backwardness must have been either recognised by means of a notification by the President under Article 341 or Article 342 declaring them to be Scheduled Castes or Scheduled Tribes, or, on an objective consideration, identified by the State to be socially and educationally so backward by reason of identified prior discrimination and its continuing ill effects as to be comparable to the Scheduled Castes or the Scheduled Tribes. In the case of the Scheduled Castes or the Scheduled Tribes, these conditions are, in view of the notifications, presumed to be satisfied. In the case of the other backward classes of citizens qualified for reservation, the burden is on the State to show that these classes have been subjected to such discrimination in the past that they are reduced to a state of helplessness, poverty and the consequential social and educational backwardness -as in the case of the Scheduled Castes and the Scheduled Tribes. In other words, reservation is meant exclusively for the Harijans, the Girijans, the Adivasis, the Dalits or other like “depressed” classes or races or tribes most unfortunately referred to in the past as the untouchables” or the “outcastes” by reason of their being born in what was wrongly regarded as low castes and associated with what was equally wrongly treated as demeaning occupations, or any other class of citizens’ afflicted by like degree of poverty and degradation caused by prior and continuing discrimination and exploitation, whatever be their professed faith, religion or caste. These classes of citizens, segregated in slums and ghettos and afflicted by grinding poverty, disease, ignorance, ill health and backwardness, and haunted by fear and anxiety, are the constitutionally intended beneficiaries of reservation, not because of their castes or occupations, which are merely incidental facts of history, but because of their backwardness and disabilities stemming from identified past or continuing inequities and discrimination.
(5) Members of the Scheduled Castes or the Scheduled Tribes do not lose the benefits of reservation and other affirmative action programmes intended for backward clases merely by reason of their conversion- from the Hindu or the Sikh or the Buddhist religion to any other religion, and all such persons shall continue to be accorded all such benefits until such time as they cease to be backward.
(6) Identification of backward classes for the purpose of reservation with reference to historical discrimination and its continuing ill effects is, however, subject to the overriding condition that no person whose means exceeded a predetermined economic level should he entitled to the protection of reservation, however backward he may be socially and educationally. He may, however, be considered for the benefits of other affirmative action programmes, but in doing so his comparative affluence in relation to other backward class candidates may be a relevant consideration to exclude him.
(7) Once a class of citizens is identified on correct principles as backward for the purpose of reservation, the “means test’ must be strictly and uniformly applied to exclude all those persons in that class reaching above the predetermined economic level.
(8) Reservation in all cases must be confined to a minority of available posts or seats so as not to unduly sacrifice merits. The number of seats or posts reserved under Article 15 of Article 16 must at all times remain well blow 50% of the total number of seats or Posts.
(9) Reservation has no application to promotion. It is confined to initial appointment, whichever be the level or grade at which such appointment is made in the administrative hierarchy, and whether or not the post in question is borne on the cadre of the service.
(10) Once reservation is strictly confined to the constitutionally intended beneficiaries, as aforesaid, there will probably be no need to disappoint any deserving candidate legitimately seeking the benefit of reservation, for there will then be sufficient room well within the 50% limit for all candidates belonging to the backward classes as properly determined on correct principles. In that event, question such as caste or religion will become merely academic and the competing maddening rush for “backward” label will vanish.
(11) A periodic administrative review of all affirmative action programmes, including reservation of seats or posts, must be conducted by a specially constituted Permanent Authority with a view to adjustment and readjustment of such programmes in proportion to the nature, degree and extent of backwardness. All such programmes must stand the test of judicial review whenever challenged. Reservation being exclusionary in character must necessarily stand the test of heightened administrative and judicial solicitude so as to be confined to the strict bounds of constitutional principles.
(12) Whenever and wherever poverty and backwardness are identified it is the constitutional responsibility of the State to initiate economic and other measures to ameliorate the conditions of the people residing in those regions. But economic backwardness without more does not justify reservation.
(13) Poverty demands affirmative action. Its eradication is a constitutional mandate. The immediate target to which every affirmative action programme contemplated by Article 15 or Article 16 is addressed is poverty causing backwardness. But it is only such poverty which is the continuing ill-effect of identified prior discrimination, resulting in backwardness comparable to that of the Scheduled caste or the Scheduled Tribes, that justifies reservation.
(14) While reservation is a remedy for historical discrimination and its continuing ill-effects, other affirmative action programmes are intended to redress discrimination of all kinds, whether current or historical.
(15) Any legitimate affirmative action must be supported by a valid classification based on an intelligible differentia distinguishing classes of citizens chosen for the protective measures from the generality of citizens excluded from such measures, and such differentia must bear a reasonable nexus with the object sought to be achieved, namely, the amelioration of the backwardness of the chosen classes of citizens; which implies a reasonable proportion between the aim of the action and the means employed for its accomplishment, and its discontinuance upon the accomplishment of the object.
(16) In the final analysis, poverty which is the ultimate result of inequities and which is the immediate cause and effect of backwardness has to be eradicated not merely by reservation as aforesaid, but by free medical aid, free elementary education, scholarships for higher education and other financial support, free housing, self-employment and settlement schemes, effective implementation of land reforms, strict and impartial operation of the law-enforcing machinery, industrialisation, construction of roads, bridges, culverts, canals, markets, introduction of transport, free supply of water, electricity and other ameliorative measures particularly in areas densely populated by backward classes of citizens.
327. CONCLUSIONS :
A. The validity of the impugned Government providing for reservation of posts depends on convincing proof of proper identification of backward classes of citizens by recourse to relevant criteria, such as poverty, illiteracy, disease, unhygienic living conditions, low caste and consequential isolation, and in accordance with correct principles, i.e., with reference to the continuing ill effects of historical discrimination resulting in social and educational backwardness comparable to that of the Scheduled Castes or the Scheduled Tribes, and inadequate representation of such classes of citizens in the services under the State, but subject to the overriding condition that all those persons whose means have exceeded a predetermined economic level shall be denied reservation. Amongst the aforementioned backward classes of citizens correctly identified to be qualified for reservation, preference may be legitimately extended to the comparatively poorer or more disadvantaged sections.
B. Reservation of seats or posts solely on the basis of economic backwardness, i.e. without regard to evidence of historical discrimination, as aforesaid, finds no justification in the Constitution.
C. Reservation of seats or posts for backward classes of citizens, including those for the Scheduled Castes and the Scheduled Tribes, must remain well below 50% of the total seats or posts.
D. Reservation is confined to initial appointment to a post and has no application to promotion.
E. It is open to the State to adopt any valid affirmative action programme, otherwise than by reservation, for amelioration of the disabilities of all disadvantaged persons, including backward classes of citizens.
328. Neither the impugned orders of the Government of India (O. M. No. 36012/31/90-Estt(SCT) dated 13th August, 1990 and O .M. No. 36012/31/90-Estt(SCT) dated 25th September, 1991) nor the material relied upon by it nor the affidavits filed in support of the said orders disclose proper application of mind by the concerned authorities to the principles stated above for valid identification of the backward classes of citizens qualified for reservation in terms of Article 16 of the Constitution of India. The impugned orders are, therefore, unsustainable. The respondent-Government is accordingly directed to reconsider the question of reservation contemplated by Article 16(4) in the light of the aforesaid principles and pass appropriate orders.
- This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448 ↩︎