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Page 1 of 11 RESERVATION & ARTICLE 16 Article 14 guarantees the right to equality generally; Articles 15 and 16 are instances of the

same right of equality in specific situations. Article 16 deals with the specific matter of "public employment". Article 16 and guarantees that all citizens in matters of State service shall be treated alike under like circumstances both in privileges and obligations. It prescribes 7 (religion, race, caste, sex, descent, place of birth and residence) grounds under which there shall be no discrimination in respect of employment or office under the State. Article 16(2) is more specific than Article 16(1) since the grounds of discrimination expressly mentioned in Article 16(2) are not exhaustive. Article 16(2) brings out emphatically, in the negative form, what is guaranteed affirmatively by Article 16(1). Article 16(2) prohibits discrimination (which would by its very definition operate for some and against some) and assures the effective enforcement of the fundamental right guaranteed in Article 16(1). The exception (later expression) to Article 16(1) & (2) are Articles 16(3) which provides for "reasonable classification" which can be made by the State and Article 16 (4) under which the State can make ' any provision for the reservation of appointments or posts in favour of any backward class of citizens'. Such reservation is however subject to Article 335 of the Constitution which states that "the claims of...SC/ST shall be taken into consideration consistently with the maintenance of efficiency of administration." Another Article in the Constitution which deals with a provision for reservation is Article 15(4) which states that "nothing in this Article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes." The said Article was inserted by the 1st Amendment Act of 1951 following the Supreme Court judgment delivered in the case of Champakam Durairajan v. State of Madras, AIR1951 SC 226 by a seven judge bench of the Supreme Court. Communal Reservation and Early Judgments of the Supreme Court The fact of the aforesaid case are briefly as follows. The State of Madras, before the commencement of the Constitution had apportioned between the four distinct groups of districts seats to medical colleges and engineering colleges in certain proportions in what is called a Communal Government Order. For every 14 seats the following basis of selection was used 1. Non Brahmins - 6 2. Backward Hindus - 2 3. Brahmins - 2 4. Harijans - 2 5. Anglo-Indian and Indian Christians - 1 6. Muslims - 1 Ramgovind Kuruppath, 2003. 1

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These protective provisions were made on certain principles based on academic qualifications. Further, in case are medical colleges not less than 20 percent of the seats were filled by women from its region and it was open for the selection committee to admit a larger number of women from among the qualified candidates. The petitioner in the present case was a member of the Brahmin community who although had not applied to the medical College, stated that the State had agreed to reserve a seat for her should the application in the High Court succeed. It was contended that this provision of reservation was violative of the fundamental rights granted under Articles 15(1) and 29(2). The Supreme Court speaking in one voice held that "The right to get admission into any educational institution of the kind mentioned in Clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens. This right is not to be denied to the citizen on grounds only of religion, race, caste, language of any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission those grounds, he certainly cannot be heard to complain of an infraction of his fundamental right under this Article. But, on the other hand, if he has the academic qualifications and is refused admission only on grounds of religion, race, caste, language or any of them then there is a clear breach of his fundamental right." With respect to the contention of the State that under Article 46 The State is charged with promoting the special care of the educational and economic interests of the weaker sections of people and in particular of the scheduled castes and scheduled tribes and protection from social injustices and all forms of exploitation the Court held that directive principles under Part IV of the Constitution were not enforceable and it is only obligatory on the part of the State. With respect to the issue of reservation the Supreme Court held that "it will be noticed that Article 16 which guarantees the fundamental right of equality of opportunity in matters of public employment and provides that no citizens shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, and be ineligible for or discriminated against in respect of any employment or office under the State but this Article as a proviso under clause (4)." The Court held that "If clause (1) is the rule then clause (4) would have been wholly unnecessary and redundant.... It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds. The protection of backward classes of citizens may require appointment of members of backward classes in State services and the reason why power has been given to the State to provide for reservation of such appointments for backward classes may under those circumstances be understood. That consideration however, was not obviously considered necessary in the case of admission into an educational institution and that may well be reason for the permission from Article 29 of a clause similar to Article 16(4)."

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Page 3 of 11 In this manner the Court found the Communal Government Order to be opposed to the Constitution since it proceeds on the basis of religion, race and caste. It therefore found the Communal Government Order to be void under Article 13 of the Constitution. The next case in this regard was Venkataramana v. State of Madras, AIR 1951 SC 229 which was delivered by the same Bench on the same day. This case was with reference to applications invited by the Madras Public Services Commission for the posts of District Munsiffs in the Madras Subordinate Civil Judicial Service. The posts were to be filled by direct recruitment and it was notified that the selection of would be made from the various castes, religions and communities in pursuance of the rules prescribed in the Communal Government Order namely for harijans 19, Muslims 5, Christians 6, Backward Hindus 10, Non Brahmin Hindus 32 and Brahmins 11 (of 71 posts). The petitioner possessed the requisite qualifications for the post of District Munsiff but was not appointed. This was challenged on the ground that it was violative of Article 16(4). The Court held that "Clause (4) expressly permits the State to make provision for the reservation of appointments of posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services of the State. Reservation of posts in favour of any backward class of citizens cannot, therefore be regarded as unconstitutional... it is, in the circumstances impossible to say that classes of people other than harijans and backward Hindus can be called backward classes. As regards the posts reserved for harijans and backward Hindus it may be said that the petitioner who does not belong to these two classes is regarded as ineligible for those reserve posts not on the ground of religion, race, caste etc but because of the necessity for making a provision for reservation of such posts in favour of a backward class of citizens, but the in eligibility of the petitioner for any of the posts reserved for communities other than harijans and backward Hindus cannot be regarded as founded on the ground only of his being a Brahmin." SEMINAL VIEWS ON ARTICLE 16(4) The term backward classes was included under clause (4) of Article 16 by the Draft Article 10(3) at the instance of B. R. Ambedkar. Justice B. P. Jeevan Reddy elucidates upon the views of B. R. Ambedkar in the Indra Sawhney case. He states in Paragraph 28 of the judgment "His (BR Ambedkar's) speech, which put an end to all discussion and led to adopting of draft Art. 10(3), is worth quoting in extenso, since it throws light on several questions relevant herein: " ..... there are three points of view which it is necessary for us to reconcile if we are to produce a workable proposition which will be accepted by all. Of the three points of view, the first is that there shall be equality of opportunity for all citizens. It is the desire of many Members of this House that every individual who is qualified for a particular post should be free to apply for that post, to sit for examinations and to have his qualifications tested so as to determine whether he is fit for the post or not and that there ought to be no limitations, there ought to be no hindrance in the operation of this Ramgovind Kuruppath, 2003. 3

Page 4 of 11 principle of equality or opportunity. Another view mostly shared by a section of the House is that, if this principle is to be operative - and it ought to be operative in their judgment to its fullest extent - there ought to be no reservations of any sort for any class or community at all, that all citizens, if they are qualified, should be placed on the same footing of equality so far as the public services are concerned. That is the second point of view we have. Then we have quite a massive opinion which insists that, although theoretically it is good to have the principle that there shall be equality of opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration. As I said, the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be reservations in favour of certain communities which have not so far had a 'proper look-in' so to say into the administration. If honourable Members will bear these facts in mind - the three principles we had to reconcile, - they will see that no better formula could be produced than the one that is embodied in sub-Cl. (3) of Art. 10 of the Constitution. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now - for historical reasons - been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services. Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public service to the fullest extent, what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the State and only 30 per cent are retained as the unreserved. Could anybody say that the reservation of 30 per cent as open to general competition would be satisfactory from the point of view of giving effect to the first principles, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-Cl. (1) of Art. 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation. If honourable Members understand this position that we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as "backward" the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain. That I think if I may say so, is the justification why the Drafting Committee undertook on its own shoulders the responsibility of introducing the word "backward" which, I admit, did not originally find a place in the fundamental right in the way in which it was passed by this Assembly ..... Somebody asked me: "What is a backward community"? Well, I think any one who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government." The above material makes it amply clear that the objective behind Cl. (4) of Art. 16 was Ramgovind Kuruppath, 2003. 4

Page 5 of 11 the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be made broad-based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted there into and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Art. 16(4) is empowerment of the deprived backward communities --- to give them a share in the administrative apparatus and in the governance of the community." THE BALAJI RULE The case of M R Balaji vs State of Mysore, AIR 1963 SC 469 is extremely important for the reasons that the issues dealt with therein were largely similar to and had immense precedential value in deciding the Indra Sawhney case. Briefly, the facts of the case are as follows. In this case the Constitutional validity of a government order passed by the State government of the 31st July, 1962 making reservation under Article 15 (4) was challenged. The said order divided the backward classes into two-backward classes and more backward classes. For the backward classes it made reservation of 28 percent and for the more backward classes it made reservation of 22 percent. Other than this that already existed 15 percent reservation for scheduled castes and 3 percent reservation for scheduled tribes. In total there was 68 percent reservations in educational institutions in the State. This order superseded all previous government orders made by the State and it is necessary to outline the same. 1. 26th July, 1958-Order issued that all communities rather than the Brahmin community fell within the definition of educationally and socially backward classes and provided for the said communities and tribes reservation of 75 percent of the seats notwithstanding the existing reservation (15+3). This was challenged before the High Court and the order was quashed since the State admitted that there was a drafting error. 2. 14th May & 26th July, 1959 - All communities excepting Brahmins, Baniyas and Kasyats among the Hindus, Muslims, Christians and Jains were classified as educationally and socially backaward. 65 percent of the seats were reserved for these socially and educationally backward classes and when it was challenged before the High Court in the case of Ramakrisha Singh Ram Singh v. State of Mysore, AIR 1960 Mys. 338, the High Court upheld the pleas raised by the petitioners and quashed the impugned orders. 3. Mysore Backward Classes Committee(wrt Interim Report ) headed by Mr. Nagen Gowda was appointed to investigate the problem and advise the government as to the criteria which should be adopted in determining the educationally and socially backward classes and the special provisions which should be made for their advancement. The committee made an interim report and in the light of the said report the State passed and order on 9th June, 1960 regulating admissions for that year into the professional and technical colleges. The effect of this order was that 60 percent of the seats were left open for what may be conventionally described as the 'merit pool' and 40 percent were Ramgovind Kuruppath, 2003. 5

Page 6 of 11 reserved for the reservation pool, 22 percent of which were reserved for the backward classes, 15 percent for the scheduled castes and 3% for the scheduled tribes. This was challenged in the case of SA Partha v. State of Mysore, AIR 1961 Mys. 220 and this order was also quashed by the High Court which also stated that the reservation in favour of scheduled castes and scheduled tribes and other backward classes should be worked out so as to avoid a successful challenged under Articles 15(1) and 29(2). 4. The Nagen Gowda committee(w. r. t Final Report) made its report in 1961 and in the light of the said report the State proceeded to make an order under Article 15 (4) on the 10th July, 1961. The order expressed the proposal made by the committee that the backward classes should be subdivided into categories-backward and the more backward, and it adopts the test laid down by the report as it considered it to be 'realistic and practicable'. However the recommendations of the committee was 68 percent and this was rejected by the government on the ground that such a large percentage of reservation would not be in the larger interests of the State. That is why according to the order 48 percent was fixed as total reservation in favour of the backward classes, the scheduled castes and scheduled tribes together; that means that 30 percent was reserved for the backward classes. [The Supreme Court considering the report stated that "The report proceeds on the basis that higher social status has generally been accorded on the basis of caste for centuries; and so, it takes the view that the low social position of any community is, therefore, mainly due to the caste system. According to the report there are ample reasons to conclude that social backwardness is based mainly on racial, tribal, caste and denomination and differences, even though economic backwardness might have contributed to social backwardness. It would thus be clear that the committee approached is problem of enumerating and classifying the socially and educationally backward communities on the basis that the social backwardness depends substantially on the caste to which the community belongs though it recognised that economic condition may be a contributory factor. The classification made by the committee and the enumeration of the backward communities which is adopted shows that the committee virtually equated the classes with the castes." ... the committee further decided that amongst the backward communities two divisions would be made (i) the backward and (ii) the more backward. In making this distinction the committee applied one test. It enquired "Was the standard of education in the community in question less than 50 percent of the State average? If it was, the community would be regarded as more backward; if it was not, the community should be regarded as backward."] The issues raised in this case are as follows 1. Whether the appointment of a commission and subsequent steps to be followed under Article 340 do not constitute condition precedent to action being taken under Article 15(4) - It cannot be said that it is not competent to the State to make an order under Article 15(4) unless a commission has been appointed by the President under Article Ramgovind Kuruppath, 2003. 6

Page 7 of 11 340(1) and a copy of the report of the said commission is laid for the house of Parliament under Article 340(3). Though the Constitution contemplated the appointment of a commission by the President, whose report and recommendations, it was thought, would be of assistance to the authorities concerned to take adequate steps for the advancement of backward classes and the subsequent steps that were to follow it did not constitute a condition precedent to any action being taken under Article 15(4). 2. Whether a provision for reservation can be made by an executive order - It would be unreasonable to suggest that the State must necessarily mean the legislature and not the government. Besides, where the Constitution intended that a certain action should be taken by legislation and not by executive action it has adopted suitable phraseology in that behalf. Therefore, when Article 15 (4) contemplates that there can be special provisions, the said provision can be made by an executive order and a legislation for the purpose is not necessary. 3. Whether classification can be made 'solely' on Caste - The backward classes for whose improvement special provision is contemplated by Article 15 (4) are in the matter of their backwardness comparable to scheduled castes and scheduled tribes. The backwardness under Article 15 (4) must be social and educational. It is not either social or educational, but it is both social and educational. In dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be irrelevant, its importance should not be exaggerated . If the classification of socially backward classes of citizens was based solely on the caste of the citizens, it may not always been logical and may perhaps contain the vice of perpetuating the castes themselves. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. 4. Whether the classification of backward and more backward based on the State average is valid - The recommendations of the committee stated that all castes whose average was less than the State average of 69 per thousand should be regarded as backward communities. The Court held that even assuming that the test applied was a rational and permissible under Article 15 (4) are community which satisfied the said test or was just below the said test could not be regarded as backward. It is only communities which were well below the State average that could properly be regarded as educationally backward classes of citizens. Classes of citizens whose average of student population worked below 50% of the State average were obviously educationally backward classes of citizens. Therefore the State was not justified in including in the list of backward classes castes or communities whose average of student population per thousand was slightly above, or very near, or just below the State average. 5. Whether the reservation of 68% is valid - ... The order of the Mysore Government dated 31/7/1962 reserving seats for backward classes in technical institutions has categorised the backward classes on the sole basis of caste which is not permitted by Article 15 (4); and the reservation of 68% made by the impugned order is plainly Ramgovind Kuruppath, 2003. 7

Page 8 of 11 inconsistent with the concept of special provision authorised by Article 15 (4). Therefore, the impugned order is a fraud on the constitutional power conferred on the State by Article 15(4). The Balaji Rule : "In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 percent; how much less than 50 percent would depend upon the relevant prevailing circumstances in each case."(Para 34) RESERVATION, PROMOTION AND N M THOMAS It has always been a settled issue that reservation is permitted with respect to appointment the government posts since there is a proviso under Article 16 (4) of the Constitution. However, the issue whether such reservation would extend to promotion etc. was decided upon in the case of State of Kerala v. N M Thomas, AIR 1979 SC 490. Facts : This was a case that dealt with the validity of Rule 13 AA of the Kerala State and Subordinate Services Rules , 1958(hereinafter called rules). According to the rules any person was a member of the subordinate services and had the requisite qualifications therefore eligible for promotion had to write a test as prescribed under Rule 13 of the rules. Rule 13 AA provided that a member of the scheduled caste or scheduled tribe was allowed "temporary exemption" from passing the test although Rule 13 A provided that "any person who is not pass the said test... within two years of the introduction of the test he shall be promoted thereto temporarily. If a member so appointed does not pass the test within two years from the date of introduction of the said test or when the said test also involves practical training within two years after the first chance to undergo such training he shall be reverted to from the class, category or grade or post from which he was appointed and shall not again be eligible for appointment under this Rule" (basically demoted to his earlier position). Decision of the High Court : NM Thomas was a member of the forward classes and he challenged this Act before the High Court of Kerala. The High Court was of the view that Rule 13 AA violated Article 16 (1) and that Article 16 (4) which provides for making reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of the State, is not adequately represented in the service under the State has no application. This Court relied on the decision of the Supreme Court in the case of General Manager, Southern Railway c. Rangachari, AIR 1962 SC 36, where it was held that Article 16 (4) is an exception to Article 16 (1) and that it does not take in all the matter is covered by Article 16 (1) as it is concerned only with reservation of appointments and posts in favour of backward classes and that but for Article 16 (4) there could be no reservation of posts in favour of backward classes under the guarantee of equality of opportunity in the matter of employment. Issues: The issues that were to be decided by the Court this case may be listed as follows 1. Whether Article 16 (4) is an exception to Article 16 (1)? 2. Whether reservation is permissible in the matter of promotions under Article 16 (4) Ramgovind Kuruppath, 2003. 8

Page 9 of 11 and whether it would impair efficiency? On the first issue the Court held that (Per Matthew, J) "The guarantee of equality before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal.... But the language of Article 16 (1) is in marked contrast with that of Article 14. Whereas the accent in Article 14 is on the injunction that the State shall not deny to any person equality before the law or the equal protection of the laws, that is, on the negative character of the duty of the State, the emphasis in Article 16 (1) is on the mandatory aspect, namely, that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State implying thereby that affirmative action by government would be consistent with the Article if it is calculated to achieve it."(Para 91) "I agree that Article 16 (4) is capable of being interpreted as an exception to Article 16 (1) if the quality of opportunity visualised in Article 16 (1) is a sterile one, geared to the concept of numerical equality which takes no account of the social, economic, educational background of the members of the scheduled castes and scheduled tribes. If equality of opportunity guaranteed under Article 16 (1) means effective material equality then Article 16 (4) is not an exception to Article 16 (1). It is only an emphatic way of putting the extent to which the quality of opportunity could be carried viz. even Article point of making reservation."(Para 103) On the second issue the Court held that "Article 16(1) cannot include within its compass the power to give any adventituous aids by legislation or otherwise to the backward classes which would derogate from numerical equality. If reservation is necessary either at the initial stage or at the State of promotion or at both to ensure for the members of the scheduled castes and scheduled tribes equality of opportunity in matters of employment, I see no reason why that is not permissible under Article 16 (1) as that alone might put them on parity with the forward community is in the matter of achieving the result which the quality of opportunity would produce."(Para 100) "Article 16(1) and Article 16 (2) do not prohibit the prescription of a reasonable qualification for appointment or for promotion. Any provision as to the qualification for employment or appointment to an office reasonably fixed and applicable to all would be consistent with the doctrine of equality of opportunity under Article 16 (1)."(Para 109) On the question of efficiency the Court held that "Rule 13 AA has been enacted not with the idea of dispensing with the minimum qualification required for promotion to a higher category or class, but only to give enough breathing space to enable the members of the scheduled castes and scheduled tribes to acquire it. The purpose of the classification made in Rule 13 AA vis-a-vis of putting the members of the scheduled castes and scheduled tribes in one class and giving them an extension of time for acquiring the test qualification prescribed by Rule 13 and Rule 13 A is to enable them to have their due claim of representation in the higher category without Ramgovind Kuruppath, 2003. 9

Page 10 of 11 sacrificing the efficiency implicit in passing the test. That the passing of some of the tests does not spell in the realm of minimum basic requirement of efficiency is clear from Rule 13 A... Rule 13 AA is not intended to give permanent exemption to the members of the scheduled castes and scheduled tribes from passing the test but only reasonable time to enable them to do so."(Para 113) The next case that dealt with the question of reservation for SCs, ST's and OBC's was K C Vasanth Kumar v. State of Karnataka, AIR 1985 SC 1495. In this case certain guidelines were laid down for reservation for SCs, ST's and OBC's . This case also gave due importance to economic backwardness as a determining factor for any policy of reservation. This judgment was to serve as a guideline to the commission to be appointed by the Karnataka Government for examining the question of better educational and employment opportunities for SCs, ST's and OBC's . It is an important case for the reason that each of the five judges found it necessary to give their reasoning in the judgment and there are five judgments in the case. The relevant portions of the judgments of the various have been culled out and outlined in the following paragraphs. Chandrachud, CJ held as follows "The reservation in favour of the scheduled castes and scheduled tribes must continue as at present, there is, without the application of a means test, for further period not exceeding 15 years. The means test, that is to say, the test of economic backwardness ought to be made applicable even to the scheduled castes and scheduled tribes after 2000 AD. Insofar as the other backward classes are concerned two tests should be conjunctively applied for identifying them for the purpose of reservation is in employment and education: One, that they should be comparable to the scheduled castes and scheduled tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State government may lay down in the context of prevailing economic conditions. The policy of reservation is in employment, education and legislative institutions should be reviewed every five years or so." Justice Desai was of the opinion that economic backwardness should be the sole criterion and stated thus "The only criterion which can be realistically devised is one of economic backwardness... if economic criterion for compensatory discrimination of affirmative action is excepted, it would strike at the root cause of social and educational backwardness, and simultaneously take a vital step in the direction of destruction of castes structure which in turn would advance the secular character of the nation. This approach seeks to translate into reality between constitutional goals: one, the strike at the perpetuation of the castes ratification of the Indian society as to arrest aggressive movement and to take a firm step towards establishing a castor society; and two to progressively eliminate poverty by giving an opportunity to the disadvantaged sections of the society to raise their position and be a part of the mainstream life which means eradication of poverty. This approach does not deal with reservation in favour of Ramgovind Kuruppath, 2003. 10

Page 11 of 11 scheduled castes and scheduled tribes." Justice Chinnappa Reddy in giving his views as to the quantum of reservation(there is neither statistical basis nor expert evidence to support the assumptions that efficiency will necessarily be impaired if reservation exceeds 50% if reservation is carried forward or if reservation is extended to promotional posts) disagreed with Justice Desai and stated that "If poverty be the cause castes is the primary index of social backwardness, so that social backwardness is often readily identifiable with reference to persons caste. So sadly and oppressively deep-rooted is castes in our country that it has cut across even the barriers of religion. The caste system has penetrated other religions and dissentient Hindu sects to whom the practice of caste should be an anathema and today we find that practitioner of other religious rates and Hindu descendants are sometimes as rigid adherents to the caste system as the Conservative Hindus... class poverty, not individual poverty is the primary test." Justice A P Sen also disagreed with economic backwardness as an indicator by stating that "Economic backwardness is only one of the tests to determine social and educational backwardness. If that test were to be the sole criterion of social and educational backwardness the reservation for the advancement of such classes the special treatment under Article 15 (4) would fail. The predominant and the only factor for making special provisions under Article 15 (4) or for reservation of posts or appointments under Article 16 (4) should be poverty, and caste or a sub caste or group should be used only for purposes of identification of persons comparable to scheduled castes and scheduled tribes, till such members of backward classes attained a State of enlightenment and there is eradication of poverty amongst them and they become equal partners in a new social order in our national life." Such was the settled position on reservation before the 'landmark' judgment of Indra Sawhney v. Union of India. [See Para. 121 of Indra Sawhney v. Union of India, AIR 1993 SC 477 for summary of the questions dealt with in the case. For a brief overview of the Mandal Commission Report and the political turmoil that warranted its implementation check out the pages in the note book. See also Sociology Notes: Module II for general info on the Mandal Commission Report and general readings on reservation]

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