COMPARE THE ANALYSIS OF SOCIALLY BACKWARD AND EDUCTIONALLY

BACKWARD : JUDICIAL INTERPRETATION

By

Name of the Student: Ch. Sai Manasa

Roll No.: 18LLB022

Semester: IV

Name of the Program: 5 year (B.A., LL.B. / LL.M.)

Name of the Faculty Member: Dr. N Bhagyalakshmi

Date of Submission: 12-12-2020

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

1
ACKNOWLEDGEMENT:

“I would sincerely like to put forward my heartfelt appreciation to our respected Law and
poverty faculty Ms. Bhagya Lakshmi mam forgiving me a golden opportunity to take up this
project regarding COMPARE THE ANALYSIS OF SOCIALLY BACKWARD AND
EDUCTIONALLY BACKWARD : JUDICIAL INTERPRETATION. I have tried my
best collect information about the project in various possible ways to depict clear picture
about the given project topic.”

2
TABLE OF CONTENTS

SYNOPSIS...............................................................................................................................................5
INTRODUCTION:....................................................................................................................................8
DIRECTIVE PRINCIPLES AND JUDICIARY...............................................................................................10
JUDICIAL INTERPRETATION OF THE CRITERIA FOR BACKWARDNESS...................................................12
JUDICIAL INTERPRETATION OF SPECIAL PROVISIONS AS ENABLING PROVISIONS...............................13
BACKWARD CLASSES WELFARE AND THE GOVERNMENT....................................................................14
FIRST BACKWARD CLASSES COMMISSION ..........................................................................................15
SECOND BACKWARD CLASSES COMMISSION......................................................................................17
CONCLUSION.......................................................................................................................................19
CASE ANALYSIS:...................................................................................................................................23

3
TABLE OF CASES:

1. M.R. BALAJI AND OTHERS V STATE OF MYSORE 1963 AIR 649

2. K.C. VASANTH KUMAR AND OTHERS V. THE STATE OF KARNATAKA
1985 AIR 1495
3. CHAMPAKAM DORAIRAJAN V. THE STATE OF MADRAS 1951 SCR 525.
4. STATE OF KERALA V. N. M. THOMAS AIR 1976 SC 490.

4
SYNOPSIS
TITLE OF THE PROJECT: COMPARE THE ANALYSIS OF SOCIALLY
BACKWARD AND EDUCTIONALLY BACKWARD : JUDICIAL INTERPRETATION

INTRODUCTION

Reservation, in India, is a type of affirmative action that tries to allocate fixed number of
seats in educational and social institutions for various under-represented communities. It is
stated as a response to discrimination done by upper caste persons in India. Thus, when India
attained independence, the constitution gave special provision for certain communities to
have a minimum representation in various fields. The Constitutional provision of reservation
for socially and economically backward classes is meant to provide access to education and
jobs for the scheduled castes, scheduled tribes.

The Supreme Court has interpreted the constitutional provisions under articles 15(4) and l6(4)
on several points such as the quantum of seats and posts to be reserved under them in
accordance with the intention of the makers of the Constitution.2 It is contended, however,
that on the vital question of the kind of beneficiaries covered by the expression " socially and
educationally backward classes " in article 15(4) the interpretation of the Supreme Court in
Chitralekha v. State of Mysore (and to some extent in M. R. Balaji v. State of Mysore ) is
irreconcilable with the intention of Parliament. As Subba Rao, J., who delivered the judgment
of the majority of the Court in the Chitralekha case while setting forth a proposition of far-
reaching significance on the question of the relevance of caste in determining the meaning of
backwardness in article 15(4) incorporated certain observations of Gajendragadkar, J. (as he
then was), in the Balaji case, it is necessary to refer to the latter case fir

OBJECTIVE:

1) “To study laws on reservation.”

2) “To critically analyze the Article 15(4) of Indian Constitution.”

SCOPE OF THE STUDY

The researcher is limiting the application of laws in India and by taking into consideration all
the instances and cases available since the initiation and enforcement of the laws.

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RESEARCH QUESTION:

1) By what test should it be decided whether a particular class is socially and

educationally backward or not?

LITERATURE REVIEW:

M. P. JAIN: Indian Constitutional Law:

This edition has been extensively and meticulously revised, taking into account the changes
brought by recent legislative amendments as well as important judgments of Supreme Courts
and High Courts.

RESEARCH METHODOLOGY:

The researcher is applying doctrinal study for the project which primarily involves the
analytical and descriptive study of primary sources especially laws on reservation in
Constitution and related case laws.

Sources of Data:

a) Primary source: Constitution of India, and the case laws which were decide by
Supreme Court and High Court.
b) Secondary source: M. P. JAIN Indian Constitutional Law, Sohoni's Code of
Criminal Procedure,1973, 22nd ed and journals on similar concept legal data sources
such as Manupatra, SCC Online, Westlaw, etc.

CHAPTERIZATION

INTRODUCTION

DIRECTIVE PRINCIPLES AND JUDICIARY

JUDICIAL INTERPRETATION OF THE CRITERIA FOR BACKWARDNESS

JUDICIAL INTERPRETATION OF SPECIAL PROVISIONS AS ENABLING

PROVISIONS

BACKWARD CLASSES WELFARE AND THE GOVERNMENT

FIRST BACKWARD CLASSES COMMISSION

6
SECOND BACKWARD CLASSES COMMISSION

CONCLUSION

7
INTRODUCTION:
With the beginning of Independence, it was understood that opportunity would be useless, if
the organic products thereof were not made accessible similarly to each resident of India. The
essential idea of majority rules system is brought out in the Preamble to the Constitution of
India, which takes steps to make sure about to every one of its residents " Justice, social,
financial and political" ; and " balance of status and of opportunity" . The point, as reflected
in the Preamble, is to achieve social and financial changes to address the irregularity existing
in the general public. The Constitution likewise ensures certain key rights to residents and
incorporates explicit arrangements to defend the rights and interests of in reverse classes and
for the assurance of the more vulnerable segments of the general public. The difference
between the created and the lacking, presence of social disparities deterring the cycle of
social and social headway, the industriousness of out of date social foundations all these and
numerous different side effects of backwardness existing in the general public in India
required the consideration of arrangements identifying with the upliftment of such classes in
the Constitution itself. The massiveness of imaginative test raised by these issues was no
place in more honed center than in the field of social remaking. These disparities in the
general public endured since hundreds of years and on Independence, it pulled in the
consideration of the producers of the Constitution who concluded that unique arrangements
should be remembered for the Constitution for the insurance of these classes.

Out of the then existing in backward classes, the most noticeable were the Scheduled Castes
and the Scheduled Tribes. The untouchability stigma is the proclaimed basis for grouping
Scheduled Castes. The Scheduled Tribe was comprised of those that were exposed to social
alienation and isolation from everyone. They were ancestral networks particular in their
example of life. The term 'scheduled Caste' has been characterized in article 366 (24) and the
term 'scheduled Tribe' has been characterized in article 366 (25) of the Constitution. The
interests of these two classes have been explicitly alluded to and secured in the Constitution.1

There have been and are classes other than Scheduled Castes and Scheduled Tribes who are,
and can be considered as backward at the social level. Such classes have been referred to also
in the Constitution as ‘Backward Classes’ in articles 15(4), 16(4), 338(3) and 340(1). 2 Article
46 of the Constitution enjoins upon the State Government to promote with special care, the
educational and economic interests of the weaker sections of the people and particularly of

1
Art 366 of Indian Const.
2
Art 15(4), 16(4), 338(3), 340(1) of Indian Const.

8
the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all
forms of exploitation. Article 15 (4) enables the State to make special provision for the
advancement of socially and educationally backward classes or for the Scheduled Castes and
Scheduled Tribes.3 Article 16 (4) similarly provides an exception in respect o f matters
relating to reservation of appointments or posts in favour o f backward class of citizens which
in the opinion of the State, is not adequately represented in the services under the State. 4
These special provisions in the Constitution for the protection of the backward classes
proceed on the recognition of the social, educational and economic backwardness of these
classes and the intense need to make special efforts for their welfare. The ultimate ideal is to
make every citizen of India, belonging to whatever group, a member of a homogeneous
nation without distinctions. It is in the context of these facts that the problem of backward
classes is of vital importance for the social, political and economic advancement of the nation

Reservation is a part of the fundamental rights guaranteed to the socially, economically

suppressed, deprived and historically disadvantaged people of India. Reservation of seats in
the legislature including Union Parliament, there is practically no dispute. Other Backward
Classes (OBC) do not enjoy any reservation of seats in the legislature. But in the sphere of
education and government services OBC do enjoy reservation. In some States like
TamilNadu, Kerala, Karnataka and Bihar, OBCs have become a dominant force in the
bureaucracy. Thus, the transience of backwardness has given rise to clash of interests both at
the political and legal levels5 (Sagar Preet Hooda). Indian Judiciary has pronounced some
Judgments upholding reservations and some judgments for fine tuning its implementations.
Lot of judgments regarding reservations has been modified subsequently by Indian
Parliament through Constitutional amendments. Some judgments of Indian judiciary have
been flouted by State and Central Governments. Some of the judgements prelude the way for
future concern. In this regard, this paper makes an attempt to study the major judgments on
reservation particularly in education given by Indian judiciary in the post-Mandal period.

3
Art 15(4) of Indian Const.
4
Art 16(4) of Indian Const.
5
Sagar Preet Hooda(2001), Contesting Reservations: The Indian Experiment on Affirmative Action, Jaipur:
Rawat Publications, 2001.

9
DIRECTIVE PRINCIPLES AND JUDICIARY
It is significant to note that Article 46 of the Directive Principles of State Policy has been
invoked by several State Governments like the Governments of Tamil Nadu, Andhra.
Pradesh, Kerala and Karnataka for the upliftment of Backward Classes including Scheduled
Castes, and Scheduled Tribes Immediately after the Constitution came into effect in 1950, the
Government of Tamil Nadu invoked Article 46 of the Directive Principles of State Policy to
provide reservation of seats in educational institutions, Government services and other
programmes. However this kind of reservation of seats in educational institutions made by
the Government of Madras was nullified by the High Court of Madras and the Supreme Court
of India in the famous case of Champakam Dorairajan v. the State of Madras 6 in 1951. The
Supreme Court of India held that the Communal G.O. of Madras Government was contrary to
Article 29(2) of the Constitution. The argument of the Madras Government that the
classification of Backward Classes was done in pursuance of Article 46, which enjoined the
State to promote with special care the educational and economic interests of the weaker
sections, was rejected by the Supreme Court of India on the ground that the Fundamental
rights were sacrosanct

The judgements quashing the Communal G.O. of the Government of Madras was a severe
blow to the interests and progress of Backward Classes. This led to an agitation started by
Periyar E. v. Ramaswami and his party Dravida Kazhagam, against the quashing of the Com-
munal G.O. of the Government of Madras and demanding an amendment to the Constitution
of India. This agitation spread to all the parts of Tamil Nadu and also to other parts of South
India. In this situation, under the influence of Kamaraj, the then Chief Minister of the
Congress Government of Madras, the Government of India under the Prime Ministership of
Jawaharlal Nehru, proposed the First Amendment to the Constitution of India to safeguard
the interests of the Backward Classes.

Since the First Amendment to the Constitution of India came into effect in 1951, these
'Special Provisions' of the constitution, Article 15 (4) and 16(4) have become the legal basis
for the 'reservation policy' (also called as Preferential Treatment or Protective Discrimination
or Compensatory Discrimination). The State Governments under this reservation policy have
been reserving seats in educational institutions and posts in public services for the benefits of
Backward Classes. 7

6
1951 SCR 525.
7
Article 15(4), 16(4) of Indian Const.

10
The 'Special Provisions' under Articles 15(4) and 16(4) have also become the basis for the
appointment of Backward Class Commissions by the State Government to inquire into the
conditions of the Backward Classes, to suggest criteria of identifying them and to recommend
measures for the advancement of socially and educationally backward classes. A few of the
Commissions that have been appointed and re- ported under the above 'Special Provisions'
are: Kumara Pillai Com- mission Report of 1965 and Damodaran Commission Report of.
1970 of Kerala, Manohar Prashad Commission Report of 1978 of Andhra Pradesh, Bakshi
Commission Report of 1978 and Rane Commission Report of 1983 of Gujarat, Sattanathan
Commission Report of 1970, Ambashankar Commission Report of 1985 of Tamil Nadu and
Havanur Commission Report of 1975 and T. Venkataswamy Commission Report of 1986 of
Karnataka

Subsequent to the Forty-Second Amendment to the Constitution of India, the Directive

Principles of State Policy acquired primacy over the Fundamental Rights of Constitution.
However, in 1980 in the case of Minerva Mills v the Union of India 8, the Supreme Court held
the Forty-Second Amendment as unconstitutional, so far as Article 31(c) of the Constitution
is concerned on the ground that the Indian Constitution is built on a balance between Part III
(Fundamental Rights) and Part IV (Directive Principles) and to give absolute primacy to the
one over the other would disturb the harmony between the two parts of the Constitution.

In the Judgement of the Supreme Court of India in the case of K.C. Vasanth Kumar and
Others v. the State of Karnataka9, Justice E.S. Venkataramaiah upheld the reservation like
that of the 'Special Group’ of Backward Classes, done on the basis of low occupation-cum-
low income but opened to all castes and communities in Karnataka, by observing:

"It is apparent that this Special Group is a creature of social, economic and political
necessity. Since a classification made on the above said basis has received the approval of the
Constitution Bench of equal strength and its correctness is not challenged before us, we treat
this classification as a valid one even though a criticism of this kind of classification was
made not unjustifiably

This classification would include persons of all castes, groups and communities
provided the two tests, namely, occupation test and income test, are satisfied."10

8
1980 AIR 1789
9
1985 AIR 1495
10
Id.

11
Further, the learned Judge, referring to the benefits under Article 46 of the Constitution
stated: "At this stage, it should be made clear that if a fresh determination of some castes or
communities have to go out of the list of Backward Classes prepared for Articles 15(4) and
16(4), the Government may pursue the policy of amelioration of weaker sections of the
population amongst them in accordance with the Directive Principle contained in Article 46
of the Constitution."11

JUDICIAL INTERPRETATION OF THE CRITERIA FOR BACKWARDNESS

The 'Special Provisions' for the Backward Classes has been a subject of serious controversy
since the First Amendment to the Constitution of India came into effect in 1951. The
candidates of the forward castes and upper classes have been challenging the reservation
policy of the State Governments before the High Courts and the Supreme Court of India as a
denial of "equal protection of law", denial of 'equality before law", "discriminatory" and
violation of Fundamental Rights guaranteed to citizens under Articles 14, 15 and 16 of the
Constitution."12

In the early years, the Supreme Court of India in the cases of Balaji V. State of Mysore and
Chitralekha V. State of Mysore took a rigid stand in refusing to accept caste as a factor of
backwardness, treating social backwardness as. a result of poverty, not recognising 'Class'
and 'Caste’ as synonymous, directing that ‘Other Backward Classes' should be comparable to
Scheduled Castes and Scheduled Tribes and lastly, objecting to reservation above 50 percent
in educational institutions and Government service as excessive.

However over the years the Supreme Court of India has been taking a liberal attitude,
specially after 1968, towards caste as a factor for social backwardness, accepting 'Caste' and
'Class' as synonymous, "Caste-cum-Means" tests as factors for the identification of socially
and educationally Backward Classes as can be seen in the famous cases.

The main point of dispute in this controversy has been between the 'social backwardness’ as
represented by 'Caste and 'economic backwardness' as represented by 'Poverty' as the
determinants of socially and educationally Backward Glasses or Other Backward Glasses,
under Articles 15(4) and 16(4) of the Constitution. 13

11
State of Kerala V. N.M. Thomas AIR 1976 SC 490.
12
Art 14,15,16 of Indian Const.
13
Id.

12
Finally, the issue seemed to have been resolved by the Supreme Court of India in the
judgement in the case of K.C. Vasanth Kumar and Others v. State of Karnataka 14 Chief
Justice Ghandrachud, Justice D.A. Desai, Justice Chinnappa Reddy, Justice A. P. Sen and
Justice E.S. Venkataramaiah. All the five judges delivered separate judgements in this case,
but there is general agreement among the majority of the judges that 'Caste-cum-Means' must
be the main criteria for the identification of socially and educationally Backward Classes or
other backward classes. Chief Justice Chandrachud expressed his opinion stating:

"A somewhat unusual exercise is being undertaken by the Court in giving expression to its
use without reference to specific facts. In so far as Other Backward Classes are concerned,
two tests should be conjunctively applied for identifying them for the purpose of reservations
in employment and education: One, that they should be comparable to 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”

These changing and progressive views of the Supreme Court of India on the issue of the
criteria of backwardness may go a long way in solving the problem of 'socially and
educationally backward classes' or Other Backward Classes in India, though it may generate a
new set of problems for other Classes.' This remarkable change on the part of the Supreme
Court has been partly due to the change in the social composition, and partly due to the
realistic attitude of the judges of the Supreme Court of India

JUDICIAL INTERPRETATION OF SPECIAL PROVISIONS AS ENABLING

PROVISIONS
It is equally important to know that, for a long time, the judicial view regarding the 'Special
Provisions' has been that Articles 15 and 16 (4) of the Constitution are ' exceptions' to
Articles 15(1) and 16 (1) of the Constitution. According to this view, the claims of the
Backward Classes could be recognised and implemented only through 'exceptional clauses'.

However, in the case of State of Kerala V. N. M. Thomas 15 the Supreme Court of India, by
majority, rejected this notion of 'exceptions' and observed that the State is free to choose any
'means to achieve equality for the Other Backward Classes'. As per the judgement of the

14
1985 AIR 1495.
15
AIR 1976 SC 490.

13
Supreme Court of India, these 'Special Provisions' are in the nature of 'Enabling Provisions'
and because a 'discretionary Power of the State' under Articles 15 (4) and 16 (4) to adopt any
measure for the advancement of 'socially and educationally backward classes'. As Dr.
Paramanand Singh observes:

"It is clear that the Supreme Court of India has discarded the old way of thinking that Articles
15(4) and 16 (4) are exceptions to equality guaranteed and declared that these Articles are
themselves aimed at achieving the very equality broadly proclaimed and guaranteed by
Article 14, 15 (4) and 16 (4)."16

Accordingly, in the light of the views expressed by the Supreme Court of India, the State can
make any special provision for the advancement of socially and educationally backward
classes under Article 15 (4) of the Constitution. Similarly, under Article 16 (4), the State can
make any provision for the reservation of posts in the services of the State in favour of
Backward Classes. This discretionary power given to the State by the Constitution and now
recognized by the Supreme Court of India will enable the State Governments and the Union
Governments to take whatever measures necessary for the advancement of socially and
educationally backward classes or Other Backward Classes.17

BACKWARD CLASSES WELFARE AND THE GOVERNMENT

In pursuance of Articles 38 and 4618 of the Directive Principles of State Policy, the Union and
State Governments are directed to take two-fold measures to ameliorate the social and
economic conditions of weaker sections including the Other Backward Classes by taking:

(1) Preventive measures to check social injustices and other forms of exploitation that
exist in the Indian society;
(2) Positive measures to promote social, educational and economic interests of these
sections of the people.

It shall be the duty of the Union and State Governments to fulfil the above expectations of the
makers of the Constitution by making appropriate laws, policies and programmes.

Since 1950, the Directive Principles of State Policy have become the basis for launching Five
Year Plans for the development of the nation; and for various anti-poverty programmes like
16
Art 14,15,16 of Indian Const.
17
Id.
18
Art 38,46 of Indian Const.

14
the Twenty-Point Programme and Integrated Rural Development Programmes and other
social welfare measures to realize socio-economic justice. The multi- dimensional Twenty-
point Programme launched in 1975 and restructured in 1986 aimed at the eradication of
poverty of the masses in general and Backward Glasses in particular, including Scheduled
castes Scheduled Tribes and Other Backward Glasses majority of whom live mostly in rural
areas.

As pointed out by the Mandal Commission in its Report on Backward Classes in India:

"It may appear that the upliftment of Other Backward Classes is a part of the larger national
problem of removal of mass poverty. This is only partially correct. The deprivation of Other
Backward Glasses is a very special case of larger nation- al issue and the basic issue is that of
social and educational backwardness and poverty is only a direct consequence of caste -
based handicaps.”19

The above observation brings out the linkage between caste and poverty of the Backward
Classes. Just like social backwardness of a caste is the result of poverty, poverty is also the
result of economic backwardness of a caste. One determines the other. Hence, removal of
poverty of the masses is, in a way, removal of social and economic 'backwardness* of the
Backward Classes. In accomplishing this national goal, two Commissions have been
appointed by the President on the recommendation of the Government of India under Article
340 of the Constitution - the first Backward Classes Commission in 1953 and the second
Backward Glasses Commission in 1978.

FIRST BACKWARD CLASSES COMMISSION 20

The first Backward Glasses Commission was appointed under the Chairmanship of Sri Kaka
Kalelkar in 1953 and it submitted its Report in 1955 after a nation-wide study of the problems
of the Backward Classes.

The Kaka Kalelkar Commission adopted the following criteria for identifying socially and
educationally Backward Classes:

(i) Low social position in the traditional caste hierarchy of Hindu society; (ii) Treating all
women as backward class; (iii) Lack of general educational advancement among the major

19
Government of India, Report of the Backward Classes Commission , 1980, p. 57.
20
Government of India, Report of the Backward Classes Commission , 1955.

15
sections of a caste or community; five) Inadequate or absence of representation in
Government Service; and (v) Inadequate representation in the field of trade, commerce and
industry. The Commission also prepared a list of 2,399 Backward Castes or communities for
the entire country as 'Backward' and 837 of these castes and communities were classified as
'Most Backward'.

The Commission, based on the above criteria, recommended the following percentage of
reservation for Backward Classes:

(1) Reservation of 70 percent seats in all technical and professional institutions for qualified
students of Backward Classes; and, (2) Minimum reservation of vacancies in all Government
services and local bodies for Other Backward Classes on the following scale

Class I - 25 percent

Class II - 33 percent

Class III & IV - 40 percent

The Commission further recommended that:

(1) The adequacy of representation to be reviewed after ten years; (2) A new Ministry called
as 'Ministry for the Advancement of Backward classes to be created at the Centre and States;
and (3) Undertaking caste-wise enumeration of population in the future census.

The Report of the Kaka Kalelkar Commission was not unanimous as there were five Minutes
of Dissent. Kaka Kalelkar, Chairman of the Commission, took a different stand on the
Commission's re- commendations. In his forwarding letter to the President of India, Kaka
Kalelkar opposed the recommendations of the Report on two grounds:

(1) The acceptance of caste as the basis for backwardness would lead to the growth of
communalism and casteism; which would ultimately destroy the unity of the nation;

(2) Caste-wise determination of Backward Glasses would have a most unhealthy effect on the
Muslim and Christian sections of the nation, who were excluded from the purview of the
Commission.

16
Consequently, the Government of India did not accept the recommendations of the
Commission since 'its conceptual design carried within itself the logic for its rejection. "21
The Government of India took a decision in 1961 that no All India List of Backward Classes
be drawn up nor any reservation made in the Central Government Services for any group of
Backward Glasses other than the Scheduled Castes and Scheduled Tribes.

Finally, in August 1961, the Ministry of Home affairs, Govern- ment of India advised all the
State Governments stating;

"While the State Governments have the discretion to choose their own criteria for defining
Backward Glasses, in the view of the Government of India it would be better to apply
economic tests than to go by caste. As the State Governments may adhere to their own tests,
any All India List drawn up by the Central Government would have no practical utility.”

Even after three decades, the same policy of the Government of India continues without
major change in its approach to the problem of Backward Classes. The State Governments, as
a result are burdened with the problems of Backward Classes, and also to adopt their own
reservation policies for the advancement of the Other Backward Classes under Articles 15(4)
and 16(4) of the Constitution. This has resulted in the diversity of policies adopted by the
State Governments towards the Other Backward Classes in India.

SECOND BACKWARD CLASSES COMMISSION

The next important step by the Government of India towards the Backward Classes was the
appointment of the second Backward Classes Commission under the Chairmanship of B. P.
Mandal in 1971. The second Backward Classes Commission, submitted its report in
December 1980.

The Mandal Commission recommended its list of Backward Classes by adopting the
following criteria for the identification of Other Backward Classes:

(i) Social backwardness of the caste to be the main criterion for the determination of
Backward Glasses among the Hindus; (ii) The backward groups of Muslims given to lowly
and unclean occupations to be treated as Backward classes; and, (iii) The Christian converts
from the Harijan Community to be given the status of Backward Classes.

21
Government of India, Report of the Backward Classes Commission , 1980.

17
The Commission, on the above basis, prepared the State wise lists of Other Backward
Classes. The Commission estimated the population of Other Backward Classes to be 52
percent of the total population and recommended a reservation of 27 percent for the Other
Backward Classes in the fields of education and public employment.

The Commission also proposed the following over-all scheme of reservation for Other
Backward Classes:

1) Candidates belonging to Other Backward Classes recruited on the basis of merit in an open
competition should not be adjusted against their reservation quota of 27 percent. (2) The
above reservation should also be made applicable to promotion quota at all levels. (3)
Reserved quota remaining unfilled should be carried forward for a period of three years and
de-reserved thereafter. (4) Relaxation in the upper age limit for direct recruitment should be
extended to the candidates of Other Backward Classes in the same manner as done in the case
of Scheduled Castes and Scheduled Tribes. (5) A roster system for each category of posts
should be adopted by the concerned authorities in the same manner as presently done in
respect of Scheduled Caste and Scheduled Tribe candidates.22

The Government of India has not yet accepted the recommendations of the Second Backward
Glasses Commission (Mandal Commission) so far, though Parliament has given its general
approval and also the recommendations of the Commission have been welcomed by many
State Governments. The events in Gujarat, Bihar and now in Andhra Pradesh must have
influenced the Government of India in postponing its decision.

However, there has been a criticism in Parliament and general public that the delay in the
decision of the Government of India on the recommendations of the Mandal Commission is
not in the interest of the Other Backward Classes. For want of a reservation Policy of the
Government of India, the Other Backward Classes or 'socially and educationally backward
classes' have been denied adequate representation in the all-India services, Central Services
and the Public under- takings of the Government of India. The Backward Classes hold that
the earlier the Government of India enunciate a national policy on Backward Classes and
their decision on the recommendations of the Mandal Commission, the better it would be for
the Backward Classes and the nation.

22
Government of India, Report of the Backward Classes Commission , 1980, p. 58.

18
CONCLUSION
Ever since the Constitution has come into effect in 1950, there has been a continuous debate
on the legitimacy of the constitutional safe- guards provided for the advancement of the
Backward Classes and also the reservation policy pursued by the State Governments for the
benefit of the Other Backward Classes:

1) It has been argued that the 'Special Provisions' provided by the Constitution for the
Backward Classes contradicts the very principle of equality before law and equality of
opportunity envisaged in the Constitution.

2) There is a view that reservation of seats for the Backward Classes in educational
institutions and public services would bring down the standards of education and quality of
the civil services. It is charged that reservation policy would endanger the merit system and
also efficiency of public services.

3) Reservation policy is also criticised on the ground that it would encourage casteism in
politics and public administration. By drawing caste into politics and public administration,
more power would be placed in the hands of the dominant castes at the cost of smaller castes
and weaker sections because of democratic process and decentralization of power. The policy
of reservation in the hands of certain castes may become vested interests and reservation may
be perpetuated longer than necessary.

4) It has been argued even in stronger terms that growth of caste politics would encourage
communalism and separation among the backward castes and communities in such
proportion that it would become a threat to the unity and integrity of the nation.

5) Lastly, it has been criticised that caste-wise reservation policy is repugnant to the ideals of
secularism and socialism enshrined in the Constitution of India and it may become an
obstacle in the establishment of a casteless and classless society in India. It may delay or even
hinder the development of secular and socialist forces in India.

Notwithstanding the above criticisms, 'Special Provisions' by the Constitution of India for the
advancement of Backward Classes can be justified as inevitable and also necessary:

1. The inclusion of certain provisions in the Constitution of India has fulfilled the assurance
given to the Backward Classes by Jawaharlal Nehru in the historic Resolution on Aims and

19
Objectives of the Constitution, which was adopted in the Constituent Assembly on 22
January 1947.

2. The fathers of the Constitution did realize that there were certain sections of the people
who suffered from social, economic and political deprivation for centuries and who required
certain concessions to liberate them from those conditions which stunted their growth and
progress by giving initial encouragement to enable them to join the national mainstream.

3. Also, the constitutional safeguards provided by the Constitution have been contributing to
the removal of inequalities and injustices that the Backward Classes have been suffering for a
long time in history and whatever 'adventitious aid' given by the State under the 'Special
Provisions' will help to achieve greater freedom and equality.

4. The Constitution of India has been conceived by the fathers of the Constitution as an
instrument of social change, specially for scheduled castes, scheduled tribes and other
backward classes who constitute nearly 70 percent of the total population of India. If
interpreted with empathy by the Judiciary and if implemented faithfully by the Legislature
and the Executive, the 'Special Provisions' meant for Backward Glasses will accelerate the
process of the establishment of a new and just social order in India.

5. Lastly, the constitutional safeguards and the reservation policy done under the 'Special
Provisions' of the Constitution have been contemplated not only by the Constitution - makers
but also by the policy - makers not as mandatory but enabling provisions, not permanent but
temporary or transitional until such time they are necessary for the enlightenment and
advancement of the Backward Classes. The critics must have not only consideration but also
respect for the constitutional safeguards well intended by the fathers of the Constitution,
instead of rejecting them.

Perhaps the best solution from the long-term point of view to the problem of Backward
classes and other citizens would be for the State to secure to all citizens two basic rights: (1)
Right to education; and (2) Right to employment, as promised under the Directive Principles
of State Policy, and as a part of its commitment to constitute India into a Secular, Socialist
and Democratic Republic, as resolved in the Preamble to the Constitution. From this
perspective, the 'Special Provisions' for the Backward Classes and the dialectics of 'caste' and
'class' with the gradual modernisation of society are bound to have far-reaching effects on the
social, economic and political tranforma of India.

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CASE ANALYSIS:

1) M.R. BALAJI AND OTHERS v STATE OF MYSORE

Citations: 1963 AIR 649

Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar P.B, Wanchoo K.N, Gupta, K.C. Das,
Shah J.C.

Date of Judgement: 28/09/1962

Appellant: M.R. Balaji and Others

Respondent: State of Mysore

Facts: The case arises from an order passed by the State of Mysore regarding reservation of
seats in educational institutions. In an order passed on July 26, 1958, all the communities
except those who belonged to the Brahmin community were identified under the definition of
educationally and socially backward classes and Scheduled Castes and Scheduled Tribes.
75% of the total seats in educational institutions were reserved for them. Similar such orders
were also passed on May 14th 1959, July 22nd 1959, June 9th 1960 and July 10th 1961. The
percentage of seats reserved varied in different orders. These orders were challenged before
the Court. Following this, the State of Mysore passed another order on July 31st 1962 in
which the backward classes were divided into two categories- backward classes and more
backward classes. It was also said in such an order that 68% of the seats were reserved in the
engineering and medical colleges and other technical institutions for the educationally and
socially backward classes and Scheduled Castes and Scheduled Tribes and the rest 32% left
for the merit pool. This order was challenged by 23 petitioners by a writ petition under
Article 32. The petitioners contended that but for the reservations made by the impugned
order, they would have been entitled to admission in the respective colleges for which they
had applied. They stated that such a classification made under the order was irrational and the
reservation of 68% an act of fraud regarding Article 15(4).

Issues:

1. Whether the impugned order was an act of fraud regarding the constitutional power
conferred on the State by Article 15(4)?

2. Whether the order can create two categories as backward and more backward classes on
the basis of caste?

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3. Whether the reservation of 68% of seats in accordance with provisions given under Article
15(4)?

Law involved:

Article 15 of the Indian Constitution prohibits discrimination of Indians on the basis of

religion, caste, race, sex or place of birth.

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly
or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this article shall prevent the State from making any special provision for
women and children

(4) 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 the Scheduled Tribes

Judgement:

The Supreme Court on its judgement allowed the writ petitions and directed that an
appropriate writ or order or direction must be issued restraining the respondents. It was also
held that the petitioners were entitled to their costs, one set of hearing fees. Regarding the
issues raised, the Court came to the following conclusions:

1. Article 15(4) is a proviso and an exception to both Article 15(1) and Article 29(2). Article
15(1) states that no person shall be discriminated on the basis of caste, race, religion, sex or
place of birth. Article 29(2) states that no citizen shall be denied admission to Government or
Government aided educational institutions based on caste, religion, race or language.

2. Backwardness must be both social and educational. Even though Hindus consider caste
system important, it cannot be the basis for classification. The categorisation of people into
the backward and more backward class is not supported by Article 15(4).

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3. Reservation made under Article 15(4) must be reasonable. It should not affect Article 14
which ensures equality among people. The article aims at the advancement of socially and
educationally backward classes. It should not be such as to defeat or nullify the main Rule of
equality contained in Clause (1). While it is not possible to predicate the exact permissible
percentage of reservations, it can be stated in a general and broad way that they should be less
than 50 per cent.

4. While making an adequate reservation under Article 16(4), care should be taken not to
provide for an unreasonable, excessive or extravagant reservation because that would by
eliminating general competition in al large field and by creating widespread dissatisfaction
among the employees materially affect their efficiency. Like the special provision improperly
made under Article 15(4) reservation made under Article 16(4) beyond the permissible and
legitimate limits is a fraud on the Constitution.

2) State of Kerala V. N. M. Thomas23

The Supreme Court of India, by majority, rejected the notion of 'exceptions' and observed
that the State is free to choose any 'means to achieve equality for the Other Backward
Classes'. As per the judgement of the Supreme Court of India, these 'Special Provisions' are
in the nature of 'Enabling Provisions' and because a 'discretionary Power of the State' under
Articles 15 (4) and 16 (4) to adopt any measure for the advancement of 'socially and
educationally backward classes'. As Dr. Paramanand Singh observes:

"It is clear that the Supreme Court of India has discarded the old way of thinking that Articles
15(4) and 16 (4) are exceptions to equality guaranteed and declared that these Articles are
themselves aimed at achieving the very equality broadly proclaimed and guaranteed by
Article 14, 15 (4) and 16 (4)."24

3) Champakam Dorairajan v. the State of Madras25

The Supreme Court of India held that the Communal G.O. of Madras Government was
contrary to Article 29(2) of the Constitution. The argument of the Madras Government that
the classification of Backward Classes was done in pursuance of Article 46, which enjoined
the State to promote with special care the educational and economic interests of the weaker

23
AIR 1976 SC 490.
24
Art 14,15,16 of Indian Const.
25
1951 SCR 525.

23
sections, was rejected by the Supreme Court of India on the ground that the Fundamental
rights were sacrosanct

4) K.C. Vasanth Kumar and Others v. the State of Karnataka 26, Justice E.S.
Venkataramaiah upheld the reservation like that of the 'Special Group’ of Backward Classes,
done on the basis of low occupation-cum-low income but opened to all castes and
communities in Karnataka, by observing:

"It is apparent that this Special Group is a creature of social, economic and political
necessity. Since a classification made on the above said basis has received the approval of the
Constitution Bench of equal strength and its correctness is not challenged before us, we treat
this classification as a valid one even though a criticism of this kind of classification was
made not unjustifiably

26
S 1985 AIR 1495

24