Constitution of India, 1950:

Article 16(4) Provision' Whether to be made by the Parlia- ment/Legislature Making such a provision by executive order Legality of.

Constitution of India, 1950:

 Article 16(1)(4) Whether Article 16(4), an exception to Article 16(1), whether clause(4) exhaustive of special provisions to be made in favour of backward class of citizens' or in favour of all sections, classes or groups- Whether reservations to be made under clause (1) or whether it only permitted extending concession.

Constitution of India, 1950.

Article 16(4)Class", "Backward class of citizens", "Communities",

"Castes", "class of citizens Not adequately represented in the services under the State-Reasons for not using the word "caste" or "castes-Construction Backward class of citizen-Identification Procedure-Means test whether to be applied Creamy layer Effect of Backwardness whether to F be social and economical-Whether a class to be situated similarly to the Scheduled Caste/Tribe for being qualified as a Backward Class

Constitution of India, 1950:

Articles 15, 16-Backward classes-Identification Criteria.

Constitution of India, 1950: Articles 15, 16-Backward classes-Classification into backward and more backward-Legality of.

Constitution of India, 1950:

Articles 15, 16-Reservation-50% rule in Balaji-Effect of 50% rule whether includes all types of reservations under Article 16 or those reserva A tions made under Article 16(4) Procedure to apply 50% rule Devadasan whether good law.

Constitution of India, 1950:

Article 16(4)-Provision for reservation in promotion matters Legality of. B

Constitution of India, 1950:

Articles 14, 15, 16, 38(2), 46, 333-Reservation whether anti-meritan- Construction of Article 16 in the relevancy of Articles 333, 38(2), 46.

Constitution of India, 1950:

Articles 14, 15, 16, 226, 32-Identification of backward classes and fixation of percentage of reservations-Judicial review Scope of.

Constitution of India, 1950:

Articles 14, 15, 16 Poorer sections of backward classes and others-Distinction made in the Memorandum dated 25.9.1991-Validity of. 

Constitution of India, 1950:

Articles 14, 15, 16, 340-Memorandum dated 25.9.1991-Reservation of 10% of the posts in favour of "other economically backward sections of  the people, not covered under the existing schemes of reservation-Validity of Lists of State Governments identifying SEBCs/OBCs Effect Whether appointing Commission to identify OBCs necessary.

Comparative Law-U.S. Constitution Fourteenth Amendment Section 1 and Title VI of the Civil Rights Act, 1964, read with Articles 14, 15, 16  Constitution of India, 1950-Reservation of seats or vacancies or appointments or posts-Reasonable reservation in America-Ideas still in the process of evolution.

The Central Government appointed a Backward Class Commission (popularly known as Kaka Kalekar Commission) under Article 340 of the  Constitution on January 29, 1953. The Commission required to Investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions."  

A The Commission submitted its report on March 30, 1955. According to the Commission, the criteria for identifying the backward classes, under Article 15(4) would be their traditional occupation and profession, the percentage of literacy or the general education advancement made by them; the estimated population of the community, the distribution of the various communities throughout the State or the concentration in certain areas and the social position which a community occupied in the caste hierarchy. It also stated that the causes of educational backwardness amongst the educationally and backward communities were (i) traditional apathy for education on account of social and environmental conditions or occupational handicaps; (ii) poverty and lack of educational institu- Ctions in rural areas and (ili) living in inaccessible areas. B

In the enclosing letter addressed to the President, the Chairman of the Commission stated that effecting reservations and other remedies on the basis of caste would not be in the interest of society and country; that if the principle of caste is eschewed altogether, to make it would be D possible to help the extremely poor and deserving members of all the communities and that preference ought to be given to those who come from traditionally neglected social classes.

The Central Government did not take any action on the report.

 On August 14, 1961, the Central Government wrote to the State Governments to choose their own criteria for defining backwardness.

Various State Governments thereupon appointed Commissions for identifying backward classes. Later they issued orders identifying the Socially and Educationally Backward Classes and reserving certain percentage of posts in their favour. In Central services, reservations were made in favour of Scheduled Castes and Scheduled Tribes but not in favour of other backwards classes. 

On January 1, 1979 the Second Backward Classes Commission Gunder the Chairmanship of Sh. B.P. Mandal, popularly known as Mandal Commission, was appointed under Article 340 of the Constitution of India, to investigate the conditions of socially and Educationally backward Classes (SEBCs) within the territority of India and to determine the criterfa for defining the SEBCs.

 The report was submitted on December 31, 1980. The Commission evolved 11 Indicators or criteria for determining social and educational A backwardness, grouping them under three broad heads, Le., Social, Educational and Economic. The Social indicators were given a weightage of 3 points each, the Educational Indicators 2 points each and the Economic Indicators 1 point each.

The Commission according to its report, adopted a multiple approach for preparing the lists of OBCs for all the States and Union Territories. The main sources examined for preparing these lists were: (1) socie-educational field survey (ii) sensus reports of 1961 (iii) personal knowledge gained through its extensive tour of the country and (iv) lists of OBCs notified by the various State Govts. It applied difficult tests for C identifying OBCs among Hindus and non-Hindus. It recommended 27% reservation in favour of OBCs. 

The Mandal Commission Report was laid before each House of Parliament. It was discussed in 1982 and again in 1983 in the Parliament. Vide Office Memorandum dated 13th August, 1990, the Government of India considering the recommendations of the Mandal Commission, extended and provided for certain benefits in the services of the Union and their Public Sectors Undertakings, in favour of the socially and education- ally backward classes. The Office Memorandum provided (1) that 27% of the vacancies in civil posts and services under the Government of India to be reserved for SEBCs., (II) that the aforesaid reservation was to apply to vacancies to be filled by direct recruitment; (iii) that candidates belonging to SEBCs recruited on the basis of merit in open competition on the same standards prescribed for the general candidates not to be adjusted against the reservation quota of 27%; (iv) that the SEBCs would comprise F the castes and communities common to the lists prepared by the Commis sion and the State Governments; and (v) that the reservation to be effected from 7.8.1970 prospectively.

The issuance of the Memorandum dated 13th August 1990 caused wide-spread protest. Law and order was disturbed and private and public properties damaged. Some young people lost their lives by self-immolation.

Writ petitions were filed in this Court challenging the Memorandum dated 13th August 1990 along with applications for staying the operation of the Memorandum. This Court allowed the applications for stay. A Following the general election held in the first half of 1991, the Government at the Centre changed. The new Government issued another Office Memorandum dated 25th September 1991 modifying the Memorandum dated 13th August 1990.

The Memorandum dated 25th September 1991 was issued in order to enable the poorer sections of the SEBCs to receive the benefits of reservation on a preferential basis and to provide reservation for other economically backward sections of the people not covered by any of the existing schemes of reservation. The Memorandum provided (i) that within the 27% of the vacancies in civil posts and services under the Government of India reserved for SEBCs, preference to be given to candidates belonging to the poorer sections of the SEBCs and in case sufficient number of such candidates were not available, the vacancies to be filled up by the other SEBC candidates; and (ii) that 10% of the vacancies in civil posts and services under the Government of India to be reserved for other economically backward sections of the people, not covered by any of the existing schemes of reservation. 

 Though it is stated in the Memorandum, that the criteria for deter- mining the poorer sections of the SEES or the other economically back- ward sections of the people not covered by any of the existing schemes of reservation will be issued separately, till the date of the judgment by this Court, the Central Government did not evolve the economic criteria.

 The Writ Petitions were heard originally by a Constitution Bench presided by the then Chief Justice of India. The Constitution Bench referred the petitions to a Special Bench of Nine Judges to finally settle the legal position relating to reservations in an authoritative way.

 The petitioner in W.P.No. 948 of 1990 contended that caste was a prohibited ground of distinction under the Constitution and it could not be the basis for determining backward classes referred to in Article 15 (4); that the Mandal Commission treated the expression "backward classes" as synonymous with backward castes and identified backward classes ignoring other considerations like poverty, that if half of the posts were reserved for backward classes, it would seriously jeopardise the efficiency of the administration, educational system, and all other services resulting in backwardness of the entire nation; that merit would disappear by deifying backwardness; that Article 16(4) was broader than Article 15(4); that the expression "backward class in Article 16(4) was not limited to  "socially and educationally backward classes in Article 15(4).

The petitioner in writ petition No. 930 of 1990 submitted that the A "provision" contemplated by clause (4) of Article 16 could be made by the Legislature alone and not by the executive or any other authority; that Balaji was not correctly decided; that since the provision made under Article 16(4) affected the fundamental rights of other citizens, such a provision could be made only by the Parliament/Legislature; that if the power of making the "provision" was given to the Executive, it would give room for any amount of  abuse; that backwardness under Article 16(4) should be determined on the basis of social, educational and economic backwardness; that the authority appointed to identify backward classes was first to settle the criteria or the indicators for determining backward classes and then to apply the criteria to ench and every group in the country and it was not permissible to start with C castes to determine whether a caste was a backward class; that since castes did not exist among Muslims, Christians, and Sikhs, caste could never be the basis of identification,

The petitioner in W.P. No. 972 of 1990 urged that survey to identify backward classes should be from individual to individual and not to be D caste-wise.

The petitioner (W.P.No. 1061 of 1990) submitted that the only basis for identifying backward classes would be occupation-cum-means; that a secular socialist society could never countenance identification of backward E classes on the basis of caste which would only perpetuate and accentuate caste differences and generate antagonism and antipathy between castes.

The petitioners submitted that some members of the designated backward classes were highly advanced socially as well as economically and educationally; that they constituted the forward section of that particular backward class and that they were lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class and with them a class could not be treated as backward; that the reservation of appointments or posts contemplated by Article 16(4) was only at the stage of entry into State service, Le., direct recruitment; that providing for reservation thereafter in the matter of promotion amounts to a double reservation; that if such a provision was made at each successive stage of promotion it would be a case of reservation being provided that many times; that by providing reservation in the matter of promotion, the members of a reserved category would generate acute heart-burning and cause inefficiency in administration; that the caste-based approach adopted by the Commission divided the nation into a forward section and a backward section; that the Commission was actuated by malice towards upper castes and its report was unbalanced, unjust and unconstitutional.

The respondent-Union of India urged that the reservation provided B for by Article 15(4) was not in favour of backward citizens, but in favour of backward class of citizens; that what was to be identified was backward class of citizens and not citizens who could be classified as backward; that groups based on religion, race, caste, place of birth etc. could form a class of citizens and if that class was backward there could be a reservation in favour of that class of citizens; that caste was relevant consideration to determine backward class; that Article 16(2) prohibited discrimination only on any or all of the grounds mentioned therein; that if reservation was made in favour of backward class of citizens, the bar contained in Article 16(2) was not attracted, even if the backward classes were identified with reference to castes, as the backward classes were not adequately D represented in the services of the State; whether a backward class was represented adequately in the service under the state is a question of fact and was within the domain of the executive decision; that adequacy in representation did not mean representation at the lowest level alone, but at all levels in the administration; that plain words of the Constitution should be given their due meaning and that there was no warrant for cutting down their ambit on the basis of certain suppositions with respect to interpretation of clauses (1), (2) and (4) of Article 16.

The State of Bihar contended that backward castes in Article 16(4) meant only the members of Shudra caste and the out-Castes (Panchamas) referred to as Scheduled Castes; that the expression "backward classes" did not refer to any current characteristic of a backward caste save and except paucity or inadequacies of representation in the apparatus of the Government; that poverty was not a necessary criterion of backwardaess; that it was for the State to determine who were the backward classes and it was not a matter for the Court; that the decision of the Government was not judicially reviewulas it was extremely limited to the only question whether the exercise of power was a fraud on the Constitution.

Respondent-Srinarayana Dharma Paripalana Yogam submitted that Articles 16(4) and 15(4) occupy different fields and serve different purposes: that while Article 15(4) contemplated positive action program- mes. Article 16(4) enabled the State to undertake schemes of positive A discrimination; that the social and educational backwardness which was the basis of identifying backwardness under Article 15(4) was only partly true in the case of 'backward class of citizens' in Article 16(4); that the expression "any backward class of citizens in Article (16(4) has to be understood in the light of the purpose of the said clause; that the Scheduled Castes/Tribes were to be beneficiaries of Article 16(4), there was no reason why caste not to be an exclusive criteria for determining beneficiaries under Article 16(4); that Article 16(4) contemplated with group protection and not individual protection. 

The Communist Party of India, an Intervenor contended that caste plus poverty plus location plus residence to be the basis of identification and not mere caste; that a national concensus was essential to introduce reservations for 'other backward classes' under Article 16(4).

The State of Tamil Nadu contended that the backward classes to be identified only on the basis of caste and no economic critería be adopted D for the purpose; that economic criteria may be employed as one of the Indicators for identification of backward classes; that once a backward class was identified, there was no question of excluding any one from that class on the basis of income or means or on any other economic criterion.

The State of Kerala submitted that caste furnished a perfectly scientific basis for identification of backward classes.

Respondent-All India Federation of Backward Classes, Scheduled Castes, Scheduled Tribes and Religious Minorities submitted that caste to be the sole criteria for determining backwardness; that the Shudras and Panchamas to be given a share in the governance of the country to assure their dignity and to instill in them a sense of confidence and a spirit of competition. 

The Respondents that once a class was identified as a back- ward class after applying the relevant criteria including the economic one,  It was not permissible to apply the economic criteria once agala and sub-divide a backward class into two sub-categories; that the argument of 'Creamy layer' was but a mere ruse, a trick to deprive the backward classes of the benefit of reservations.

On the questions:-

"1(a) Whether the 'provision' contemplated by Article 16(4) must necessarily be made by the legislative wing of the State?

(b) If the answer to clause (a) is in the negative, whether an executive order making such a provision is enforceable without incorporating it into a rule made under the proviso to Article 3097

2(a) Whether clause (4) of Article 16 is an exception to clause (1) of Article 16?

(b) Whether clause (4) of Article 16 is exhaustive of the special provisions that can be made in favour of 'backward class of citizens'? Whether it is exhaustive of the special provisions that can be made in favour of all sections, classes or groups?

(c) Whether reservations can be made under clause (1) of Article 16 or whether it permits only extending of preferences/concessions?

3(a) What does the expression 'backward class of citizens' in Article 16(4) means?

(b) Whether backward classes can be identified on the basis and with reference to caste alone?

(c) Whether a class, to be designated as a backward class, should be situated similarly to the S.Cs. & S.Ts.?

(d) Whether the 'means' test can be applied in the course of identification of backward classes? And if the answer is yes, whether providing such a test is obligatory?

4(n) Whether the backward classes can be identified only and exclusively with reference to economic criteria?

(b) Whether a criteria like occupation-cum-income without reference to caste altogether, can be evolved for identifying the back- ward classes?

5. Whether the backward classes can be further categorised into backward and more backward categories?

6. To what extent can the reservation be made? (a) Whether the A 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?

(b) Whether the 50% rule, if any, is confined to reservations made under clause (4) of Article 16 or whether it takes in all types of reservations that can be provided under Articles 16?

(c) Further while applying 50% rule, if any, whether an year should be taken as a unit or whether the total strength of the cadre should be looked to?

(d) Whether Devedasan was correctly decided?

7. Whether Article 16 permits reservations being provided in the matter of promotions?

8. Whether reservations are anti-meritian? To what extent are Articles 335, 38(2) and 46 of the Constitution relevant in the matter of construing Article 16? D

9. Whether the extent of Judicial review is restricted with regard to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse E identification or a demonstrably unreasonable percentage?

10. Whether the distinction made in the second Memorandum between poorer sections of the backward classes and others permissible under Article 16?

11. Whether the reservation of 10% of the posts in favour of other economically backward sections of the people who are not covered by any of the existing schemes of the reservations made by the Office Memorandum dated 25.9.1991 permissible under Article 16."

Disposing of the Writ Petitions and Transferred Cases, This Court,