Constitution

"PROTECTIVE DISCRIMINATION" FOR BACKWARD CLASSES IN INDIA
Author(s): Marc Galanter

Source: Journal of the Indian Law Institute , Jan.-Mar., 1961, Vol. 3, No. 1 (Jan.-Mar.,
1961), pp. 39-70
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43953782
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" PROTECTIVE DISCRIMINATION " FOR BACKWARD
CLASSES IN INDIA
Marc Galanter*
The Constitution of India is prefaced by a resolve " to secur

all of its citizens .. EQUALITY of status and opportunity...."1
Accordingly, it confers on all citizens a fundamental right to be free
of discrimination by the State on grounds of race, religion and caste.2
In specific contexts government is further forbidden to discriminate on
grounds of place of birth,3 residence,4 descent,5 class,6 language 7 and
sex.8 Additional provisions outlaw untouchability 9 and protect the
citizen from certain kinds of discrimination on the part of private
persons and institutions. 10
It is envisaged that Government will not only refrain from
discriminating but will actively undertake to remove existing discrimina-
tory practices in the private sphere.11 But this attack on discrimi-
nation is only one facet of the constitutional scheme to secure equality.
The Constitution also directs and empowers the Government to under-
take special measures for the advancement of backward groups. It is
a " Directive Principle of State Policy " 12 that :
♦Assistant Professor of Social Sciences, The University of Chicago.

1. Constitution of India, Preamble.
2. Governmental discrimination on grounds of race, religion and caste is
prohibited generally by Art. 15(1) and more specifically by Art. 16(2)
(in regard to state employment), Art. 23(2) (in regard to compulsory public
service), Art. 29(2) (in regard to state-run and state-aided educational
institutions) and Art. 325 (in regard to electoral rolls).
3. Art. 15(1), Art. 16 (2).
4. Art. 16(2). But Cf. Art. 16(3).
5. Art. 16(2).
6. Art. 23(2).
7. Art. 29(2). Cf Art. 30(2) and see Arts. 29(1), 30(1), and Art. 350 which
grant rights regarding language. '
8. Arts. 15(1), 16(2), and 325.
9. Art. 17.
10. Art. 15(2) prohibits discrimination by private individuals in regard to use of
facilities and accommodations open to the public ; Arts. 28(3) and 29(2)
forbid discrimination in private educational institutions.
11. See Arts. 46 35(ii), and 25(b) (ii).
12. The directive principles of state policy are not themselves justiciable, but
it is " the duty of the State to apply these principles in making laws."
(Art. 37). Mere conformity with directive principles does not make a
measure constitutional ; " the directive principles of State policy . . . run

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40 "PROTECTIVE DISCRIMINATION 5: 5 FOR BACKWARD CLASSES IN INDIA
The State shall promote with special care the educational and
economic interests of the weaker sections of the people, and, in
particular, of the Scheduled Castes and the Scheduled Tribes,
and shall protect them from social injustice and all forms of
exploitation. 13
Consonant with this directive, the general provision forbidding
discrimination by the State (Article 15) is qualified14 by Art. 15(4),
which provides that the State may make
. . any special provision for the advancement of any socially
and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.
as subsidiary to the chapter of Fundamental Rights . . . . " State of

Madras v. Champakam D or air ajan, [1951] S.G.J. 313, 316. But these direc-
tive principles are to be taken into account in determining the scope and
application of Fundamental Rights. Md. Hanif Querishi v. Bihar , A.I.R.
1958 SC. 731.
13. Art. 46.
14. Art. 15(4). This proviso also qualifies Art. 29(2) (the specific provision
against discrimination in state-aided education). It was added by the
Constitution (First Amendment) Act, 1951, sec. 2, after the Supreme Court
in State of Madras v. Champakam Dorairajan , [1951] S.C.J. 313, held that a
state had no power to reserve seats for backward communities in state -
maintained educational institutions. The Court held such reservations to
be violative of Art. 29(2), rejecting the contention that the directive
principle in Art. 46 laid down a principle of preference which might
lawfully be embodied in legislation. The Court noted that Art. 16(4)
made express provision for reservation in the field of government employ-
ment and " the omission of such an express provision from Art. 29 cannot
but be regarded as significant." Id. at 316. See also Jagwant Kaur v.
State of Bombay, A.I.R. 1952 Bom. 461 (D.B.).
But Cf. Om Prakash v. State of Punjab , A.I.R. 1951 Punj. 93 (D.B.), an
earlier case in which reserved seats for Harijans in educational institutions
were upheld on the ground that " Art. 46 must be taken as an exception
to 29(2) . . . ." and thus the State could constitutionally promote the
educational interests of Scheduled Castes by adopting a system of reservations.
It is notable that the Constituent Assembly rejected the inclusion in the
original Constitution of a provision similar to Article 15(4). Prof. K.T. Shah's
proposal to amend Art. 15 to allow the State to make special provision for
the £* advantage, safeguard or betterment " of the " Scheduled Castes and
Scheduled Tribes" (VII Constituent Assembly Debates 655) was rejected
by the Assembly. VII Constituent Assembly Debates 664. [hereafter abbre-
viated as CAD] Dr. Ambedkar, chairman of the Drafting Committee,
opposed the amendment as providing an opening for segregated facilities.
VII CAD 661. It should be noted that the Shah amendment is narrower
in scope than Art. 15(4) which applies to Backward Classes as well as
Scheduled Castes and Scheduled Tribes.

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MARC GALANTER 41
Similarly, Article 16, which forbids dis

ment employment, is qualified in Art
make
" any provision for the reservation of

favour of any backward class of cit
of the State, is not adequately repre
the State". 5
In authorizing preferential treatment for the backward on the

basis of membership in backward groups, India is experimenting with
a method of ameliorating group differences that has been little used
(and is very possibly constitutionally prohibited) in dealing with
minority problems in the United States. i6 The American observer,
though familiar with measures designed to outlaw discrimination, finds
this principle of " protective discrimination " novel and strange. 17
But it is by no means a novelty in India. In the latter part of the
15. Cf. Art. 335, which provides : "The claims of the members of the Scheduled
Castes and the Scheduled Tribes shall be taken into consideration, consist-
ently with the maintenance of efficiency of administration, in the making of
appointments to services and posts in connection with the affairs of the
Union or of a State."
These differences should be noted : (1) Art. 335 is confined to Scheduled

Castes and Scheduled Tribes while Art. 16(4) extends to all backward
classes; (2) Art. 335 seems to include any method of preference, while
Art. 16(4) is confined to reservations; (3) Art. 335 extends to all appoint-
ments "in connection with the affairs" of the State which may be broader
than the "services under the State" referred to by Art. 16(4).
See also Art. 320(4), which provides that public service commissions need ' j
not be consulted as respects the manner in which any provision referred
to in clause (4) of Article 16 may be made or as respects the manner in
which effect -may be given to the provisions of Article 335.
16. Governmental agencies in the United States may constitutionally provide
facilities and benefits to groups defined by criteria of income, occupation,
education, etc. Even though the groups so defined may, in a given area,
be substantially identical with a particular minority group, it seems clear
that benefits may not be provided for the use of one racial group and not
another. Cf. Commonwealth of Pennsylvania v. Board of Directors of
City Trusts , 77 Sup. Ct. 806, 1957, holding that a state is constitutionally
forbidden to act as trustee of a school for "white maie orphans." Since
the state cannot administer such facilities when they are provided by a
private donor, presumably it could not establish them in the first place.
Although this case was not one in which the special preference was given to
the more backward group, there is no reason to think that the use of racial
criteria would be any more permissible in that situation.
17. There is one instance of permissible "minority" legislation - that concern-
ing American Indians. Not only are the various tribes the only groups of
American citizens entitled to application of "personal law" in large fielcļs

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42 " PROTECTIVE DISCRIMINATION " FOR BACKWARD CLASSES IN INDIA
British period preferences and arrangements for distribution of power

and benefits according to membership in communal groups were
accepted methods for the adjustment of the political balance of
communities as well as for the amelioration of the condition of the
lowly.-8 The new constitución definitely and drastically confines the
use of " protective discrimination " to the latter purpose. 19 It is
outlawed as a generally applicable principle of governmental opera-
tion. It is envisaged as an exceptional and temporary measure to be
used only for the purpose of mitigating the inequalities between
communities and it is designed to disappear with these inequalities. It
is not a device to consolidate and protect a group's separate integrity.20
of criminal and civil law, but federal legislation conferring rights and
benefits upon persons as members of these tribes is a long standing practice.
In so far as they enjoy special benefits, they may be thought of as the object
of "protective discrimination." However, no generalization can be made
from their case, since American law regarding Indian rests on the principle
that Indian tribes are distinct and independent political communities
associated with the United States by treaty, a status quite different than
any other American minority group. For a comprehensive consideration
of the legal status of American Indians see F. S. Cohen, Handbook of
Federal Indian Law (Washington : United States Government Printings
Office, 1141).
18. Quotas and preferences in recruitment for government service were not
uncommon. Report of the Backward Classes Commission (Delhi, 1116)
[hereafter abbreviated as BCC] Vol. I, pp. 126 ff. Similar arrangements
occurred in education, housing, revenue and agricultural administration.
The Government of India Act, 1111, provided for communal representa-
tion for Mohammedans, Sikhs, Anglo-Indians, Indian Christians, Depressed
Classes, Aborigines and other groups. Similar communal representation is
provided by the Government of India Act, 1131.
19. Proposals for reserved seats in legislatures, reserved cabinet posts, and
reserved posts in public service for minorities (Muslims, Christians, Sikhs
Anglo-Indians, and Parsis among others) were eliminated from the final
draft. See XII CAD 229 if. Cf. the rejection of the proposed elimination
of the qualifying word " backward " from Art. 16, which would have
allowed provision of communal reservations in public service ' VTT PAn AU
682, 704. ' PAn AU
20. There are constitutional provisions f
integrity of groups: religious denomin
to manage their own religious affair
institutions (Art. 26) ; groups with a dis
guaranteed " the right to conserve th
linguistic minorities have the right to
institutions (Art. 30 (1)). No similar
groups. Although at least some cast

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Marc galanter 43
This departure from the genera

mental impartiality in regard to
has been questioned and deplored
anxiety that preferences arid rese
and will become extremely diffic
when the discrepancies that inspi
been asserted that distribution of
forces communalism by preser
further injecting caste into polit
tion to seek public largesse throu
been predicted that distribution
will inevitably increase and event
tion principles of the Constitution
Several recent decisions suggest
governmental power to make suc
judicial review regarding such jsc
trace the judicial construction of t
preferences. The legal issues are
perhaps Indians, like Americans,
tions of public policy as legal issu
has been given to the impact and
this area. In surveying these qu
drawing some tentative conclus
understanding of an outsider. I
for, to some extent, by the object
fully aspire.
Although it is not possible to separate them entirely, I have
emphasized problems of backward classes rather than Scheduled Castes
and Tribes, since it is in the former area that the problems engendered
by the protective discrimination principle are most acute. Preferences
for Scheduled Castes and Tribes involve unique problems, 22 but in
good part the observations made here are applicable to that area.
" religious denominations," the denominational rights run subordinate to the

anti-discrimination provisions. See Sri Venkatarama Devaru v. State of
Mysore , [1958] 1 Mad. L.J. 109 (Sup. Ct.).
21. Srinivas, "Caste in Modern India", 16 J. Asian Studies 529 (1957); Ghurye,-
Caste and Class in India (Bombay, 1957) 201 ff.; Report of the Backward
Clases Commission, Vol. I, pp. vi if. (Covering letter of the Chairman.)
Minutes of Dissent : Dr. Singh, III BCC at 3 ; Shri Arunangshu III,
BCC at 5 ; Shri P. G. Shan, III BCC at 7 ff.
22. Especially reserved seats in Parliament and the state legislatures. Arts,
330, 332. No such provision is made for backward classes. Howeve.

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44 " PROTECTIVE DISCRIMINATION 4ł FOR BACKWARD CLASSES IN INDIA
SECTION I
The extent of Preferences 23
There is no indication in the Constitution that the State need
reserve any minimum number of posts in government service or seats
in educational institutions ; nor divert any minimum part of its
resources to benefits. Preferences are not mandatory but only permitted.
Articles 15(4) and 16(4) do not confer on backward groups any
Fundamental Right to such arrangements, but rather are an exception
to the rights that others would otherwise enjoy to complain of such
arrangements as violative of the Fundamental Rights granted in
Articles 15, 16 and 29. It is clear that Government may constitu-
tionally omit to make any such preferences. Since it may make none
at all, it undoubtedly may make as few as it wishes.
The Constitution does not provide any maximum or limitation on
reservation. 2i In Venkatarama v. State of Madras , 25 the Supreme
Court upheld reservations for Harijans and backward Hindus of four
out of fourteen posts. In Kesava Iy enger v. State of Mysore 26 a reserva-
tion of seven out of ten posts was upheld. The High Court there
conceded that " reservation " in Article 16(4) signified a " small
fraction " or " small portion of the main " (presumably less than one-
half), but that " [e]ach Backward Class
whose claim for appointment can be sustain

Thus the State could reserve such a portion
munity and could, on this basis, give all th
ward groups.
It seems evident, as was stated in the Kesava Iyengar case, that
the State can make reservations for component parts of the total
backward group and is not confined to one aggregate reservation. Such
a breakdown of reservations has been recommended specifically on the
ground that a single uncompartmented reservation would help only
the relatively advanced groups among the backward classes and would
reservation of seats in local political bodies is permissible for backward
classes. See note 42 infra .
23. In the sequel unless the context indicates otherwise, " reservations " is used
to denote arrangements regarding government employment, " benefits "
to describe any arrangements under Art. 15 (4), and " preferences " as a
generic term including both.
24. While preferences under Art. 335 are limited to those consistent " with the
maintenance of efficiency of administration," see note 15 supra ; no such
limitation appears in Art. 16 (4).
25. [195 1 [ S. C.J. 318.
26. A. I. R. 1956 Mysore 20 (D. B.).
27. Id. at 24.

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MARC GALANTER 45
be disadvantageous to the more backward.

arrangements for " layers " of backward
opposed on the ground that such distincti
But differential or layered preferences
Nothing in the Constitution would seem t
broad power to make " any provision "
into a requirement of a single uncompartm
The expansive view taken in the Kesava ly
total reservations to exceed fifty per cent, a
tion of ail posts, is not entirely free from d
the Constitution, defending Art. 16(4) befo
indicated that the reservation authorized
and gave the example of an aggregate rese
of posts as falling outside the power besto
Though the draftsman visualized judici
reservation, the text of Art. 16(4) itself
for it, unless the word " reservation " is c
a minority (less fifty per cent.) of posts - no
single backward group, as the Court in t
but for the aggregate of all backward gr
28. IBCCXXI, 141.
29. Report of the Commissioner for Scheduled Castes and Scheduled Trib
[hereafter abbreviated as RCSCST] 1957-58, P. 9. This opinion is appar
tly shared by the Ministry of Home Affairs.
Yet the Commissioner agrees that it is necessary to compartmentalize b
fits for backward classes on the one hand and Scheduled Castes and Tribes
on the other, lest the former benefit from all the preferences intended for
the latter. RCSCST 1952, p. 70.
30. In Madras a section of backward classes labelled " most backward " recei-
ves additional preferences. In Uttar Pradesh there are two lists of back-
ward classes : the first receives educational concessions only ; the second
receives concessions in both education and state employment. Id. 1957-58,
P. 9.
31. It is envisaged that preferences for Scheduled Castes and Tribes will be
more extensive than those for backward classes, a distinction correspond-
ing to their relative lack of resources and opportunities. It would be
strange were Government prohibited from distinguishing among backward
classes in order to make preferences commensurate with the backwardness
of the recipients.
32. Dr. B. R. Ambedkar, chairman of the drafting committee, at VII CAD
701.
33. Such a limitation was apparently inferred by the Chairman of the Back-
ward Classes Commission. Cf. his recommendation of maximum 49%
reservation of Government posts with his recommendation of a 70% reser-
vation in existing educational institutions. I BCC IX. XII.

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46 " PROTECTIVE DISCRIMINATION ił FOR BACKWARD CLASSES IN INDIA
inferred from the word " reservation," it might apply only to the
percentage of total posts reserved or it might limit the percentage
among appointments currently being made. For example, if a state
reserves thirty per cent, of Grade I posts for members of Group X,
may eighty or one hundred per cent, of current appointments be
reserved for X's until the 30 per cent, is reached ? Such temporary
reservations of up to one hundred per cent, have been employed by
some States. M It is hard to believe that the Constitution allows a
state to reserve fifty per cent, of appointments for an indefinite period,
but not a larger share of current appointments for some limited
period. 35
Some judicial control over the extent of reservations may be

necessary to preserve their character as an exception and prevent
Government from erecting it into a general principle of operation.
But while a strict " percentage " limitation has the obvious advan-
tage of definiteness, it is complicated by its connection with the
question of whom the State may designate as backward. If backward
groups may be allowed reservations commensurate with their ratio in
the population, would a similar limitation . be placed on the total
number who may be designated as backward ? Or if, as has sometimes
been the case, some ninety percent, of the population was designated
as backward, may not the State reserve a commensurate number of
posts ?
A " percentage " limitation would have little meaning in the area
of State power to confer benefits under Art. 15(4). A percentage limi-
tation might be applied to the number of seats a State ,may reserve in
educational institutions. But may the State provide scholarships or
housing or other benefits exclusively for backward groups ? Apparently
Art. 15(4) permits facilities for the exclusive use of backward groups.36
Numerical standards seem inapplicable in this area.
The extent of both reservations and benefits might be reviewed on
a different ground - their conformity with the " equal protection "
34. RCSCST, 1953, p. 134 ; RCSCST, 1954, P. 171.

35. A related quantitative question arises. How large a block of jobs must be
covered by a particular scheme of reservation ? Can a scheme of reserva-
tion cover a particular agency only ? A particular grade of posts ? Must
all appointments throughout the State be included ?
36. Jagwant Kaur v. State of Bombay , A. I. R. 1952 Bom. 461 (D. B). Consult
Note 15 supra.

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MARC GALANTER 47
clause of Article 14. 37 This would amount to a rule of "reasonable-

ness " which would free the courts from the arbitrariness of the
" percentage " test. One can visualize " reasonable " reservations in-
volving more than fifty per cent, and abuses involving less. Judicial
control of the percentage of reservations cannot be separated from the
review of standards for designating the backward. The quantum of
preference is itself no indication of its legitimate constitutional use.
SECTION II
The scope and operation of schemes for preference

Both Article 15(4) and Article 16(4) permit special provisions for
backward classes; Article 15(4) applies to the State in all of its deal-
ings, while Article 16(4) is confined specifically to the field of Govern-
ment employment. It has been held that more general fundamental
rights provisions are displaced in relation to a certain area by pro-
visions specifically pertaining to that area. 38 Thus the area of employ-
ment, offices and appointments under the State is controlled by
Article 16 alone and preferences in this area must be within the scope
of Article 16(4). This includes judicial office 39 as well as administra-
tive posts, but it does not include elective office. 40 Article 15(4)
extends to all areas of Government activity which are not controlled by
a more specific provision. 41 Thus preferences in housing, education,
welfare schemes and local political arrangements 42 must be within the
scope of Article 15(4).
37. Art. 14 provides that " The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of
India." In regard to judicial review under Art. 14 and its application to
the area of protective discrimination, see infra
38. Dattatraya v. State of Bombay , A.I.R. 1953 Bom. 311 (D. B.) (Art. 16
displaces Art. 15 in the area of Government employment) ; University of
Madras v. Shantha Bai , A.I.R. 1954 Mad. 67 (D.B.) (Art. 15 displaced
from area controlled by Art. 29 (2)). See also State of Madras v. Champakam
D or air ajan, [1959] S.C.J. 313. Gf. Jennings, Some Characteristics of the
Indian Constitution 41 ff. (Oxford, 1953.)
39. Kesava Iyengar v. State of Mysore , op. cit. supra , note 26.
40. Dattatraya v. State of Bombay , op. cit. supra , note 38.
41. Thus Art. 15 would also be displaced from the area covered by Art. 29(2)
and Art. 23(2) (compulsory public service).
42. Art. 15 applies to political arrangements. Panchayat elections in which
constituencies were delimited by caste have been held void. Bhopalsingh
v. State , A. I. R. 1958 Raj. 41 (D. B.). The Supreme Court has indicated
that Art. 15 prohibits communal electorates in municipal elections. Nain
Sukh Das v. State of U. P., A,I,R, 1953 S.C. 384. Cf ' A.R.V. Achar v,
State of Madras , infra,

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The wording " any provision " in Article 16(4) and " any special
provision" in Article 15(4) gives the State 43 great leeway in pres-
cribing the method of operation for such schemes. Article 16(4) dealing
with Government employment confines the State to the method of
" reservations." 41 Presumably this rules out other possible ways of
encouraging these groups in Government employment. But it is broad
enough to include preferential rules of recruitment, such as waiver of
age requirements, application fees and minimum educational qualifica-
tions. 45 State power to establish preferences for employment is not
confined to posts directly under the State : where the State acts as
employing agency for State-aided schools, it may make such preference
a condition of the aid. 46 Outside the Government employment area
the State is not limited to reservation as a method. Thus the State
may provide such benefits as educational facilities, fee concessions or
housing exclusively for backward groups. 47
Reserved seats in elective bodies at the local level are covered by Art. 15 (4).
A. R. V. Achar v. State of Madras , High Court at Madras, Writ Petition No. 568 of
1952 (Subba Rao, J., Aug. 25, 1952), affirmed on other grounds in I.L.R. [1954] Mad.
908 (D.B.), upholding reserved seats on municipal council for Scheduled Castes and
women. Cf. Dattatraya v. State of Bombay , op cit. supra , note 38, holding that
Art. 15 (3) authorizes such reservations for women. Presumably Art. 15(4) does no;
authorize reserved seats in Parliament or State legislatures, since representation in
these bodies is controlled by Parts IV and XVI of the Constitution, which provides
such reservations only for Scheduled Castes and Scheduled Tribes.
Art. 325 outlaws separate electorates for Parliament and the State legislature. It
is clear that Art. 15 (4) does not qualify Art. 325 and would not authorize separate
electorates for seats in those bodies, even if it were construed to authorize
reserved seats in them. However, Art. 325 is not concerned with elections to local
bodies and is not an obstacle to the use of separate electorates there. Achar v. State
of Madras, I.L.R. [1954] Mad. 908 (D.B.)
43. The " State " is not confined solely to legislative bodies. Provisions for
preference may be made by the executive as well. Kesava Iyengar v.
State of Mysore , op. cit. supra, note 26, Cf. Venkataraman v. State of Madras ,
op. cit. supra , note 25.
44. When making provision for Scheduled Castes or Scheduled Tribes, the
State is not confined to the method of reservation. See note 15 supra.
45. See cases cited in note 43.
46. Art. 16 (4) has been held to allow a State to provide that its Public Service
Commission may give preference to Scheduled Caste teachers in filling
vacancies in State-aided schools run by religious minorities. This provision
of the Kerala Education Bill was particularly objected to on the ground
that Scheduled Caste teachers might know nothing of the religion of the
minority by whom the school was run. Denying that it violated
Art. 29 (2), the Supreme Court upheld the provision asa permissible condi-
tionfor receiving grants-in-aid from the State. In re Kerala Education Bill
1957, A.I.R. 1958 S.C. 956, 983.
47. Jagwant Kaur v. State of Bombay , note 14, supra ,

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MARI : GALANTER ' t: : > : V : 49
The scheme of preference must be administered só as i ¿ operate1 īn 1

favour of the backward class. In Raghuramulu v. Štāte of Andhfa 'Pradesh ^ ~
admission to a State-run medical school was denied to backward class
candidates, although their scores 1 vere higher than candidates admitted
in the "general competition," oA thè gťóund that the fifteen per cent.
reservation for backward classes had been filled. The interpretation of
the reservation as a ceiling on admissions
instead of advancing the cause of the backward classes... pre-
vented some members of these classes from getting seats which they
would otherwise have got if all the seats were brought under a com-
mon pool. 49
Such rules, said the Court, were to be confined in their operation to

cases in which the backward classes were benefited and their appli-
cation in cases where it did not operate for the advancement of the
backward classes violated the fundamental rights of the latter. For,
Article 15(4) authorized the abridgement of fundamental rights in
order to make special provision for backward classes but could not be
used to abridge the rights of backward classes. Thus if backward
classes secure more seats by merit than are reserved for them, the reser-
vation cannot be used to limit them to a prescribed number. This
principle, which has been upheld by the Supreme Court, 50 seems
equally applicable to reservation of posts under Article 16(4) which
empowers the State to make reservations " in favour of" backward
classes.
On the other hand, members of backward classes are not entitled

to a compartmental system of selection which transforms a reservation
into an award of a guaranteed number of seats over and above those
obtained by merit. In Puppala Sudar san v. State of Andhra Pradesh, , 51 an
unsuccessful backward class candidate for admission to a medical
college contended that a higher-ranking backward class candidate
should be given a seat from the general pool rather than a reserved
48. A.I.R. 1958 A.P. 129 (D.B.).

49. Id. at 131.
50. The Supreme Court has upheld the position that reservations are not to be
construed as compartments. A Scheduled Tribe candidate who had made
the special declaration required to stand for the reserved seat in a double-
member Parliamentary constituency was held not disqualified from being
elected to the general seat. The Supreme Court found the reservation
(authorized by Art. 330) was to be construed as a guaranteed minimum and
not as a barrier to election to additional unreserved seats, V. V. Gir%
v. D. Suri Dora, A.I.R. 1959 S.G. 1318.
51, ArI.R. 1958 A.P. 569 (D.B.).

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"50 - - kfeOtt«3TÍV35 DISCRIMINATION " FOR BACKWARD CLASSES IN INDIA
• seat,': thu? enabling petitioner to obtain a reserved seat. But the Court
sáià that the selection should not be made in separate compartments in
such a way as to allow backward class candidates to compete for both
general and reserved seats to the detriment of others. Reservations are
to operate as a guaranteed minimum. Backward class candidates, it
was held, may obtain additional seats by merit, but cannot require that
reservation operate as a guarantee of seats over and above those
acquired by merit. In view of the broad discretion enjoyed by the
State as to the extent and method of reservation, there would seem no
constitutional objection to the State employing such an " over and
above merit " scheme. But it is clear that the reservation provided
here by the Andhra Pradesh Government was not of this kind. And
the same broad discretion indicates that no member of ä backward
ria« has a justifiable right to demand the State employ such a
scheme. 52
SECTION III
Designation of groups entitled to preferences
The Constitution permits preferences for three categories of grou

(a) Scheduled Castes ;54 (b) Scheduled Tribes ;55 (c) other (socially
52. That schemes for reservation are not to be construed as reserving a spec
number of posts over and above those gained by merit seems as appli
to reservations of Government posts under Art. 16(4) as to benefits un
Art. 15(4) or Arts. 330 and 332.
53. Preference for a fourth group, Anglo-Indians, are explicitly provided, r
than merely permitted. Reserved posts in certain services and sp
grants to Anglo-Indian educational institutions are guaranteed
Arts. 336(1) and 337. These preferences are on a diminishing scale fo
ten-year period. Since these grants are provided and guaranteed and
merely authorized, there is no occasion for this group to be treated un
Art. 15(4) or Art. 16(4).
On the limits of State power to place conditions on the receipt of these gran
Bombay Education Society v. State of Bombay , 17 S.G.J. 678 (1954); In re the
Education Bill, 1957. A.I.R. 1958 S.C. 956.
The Constitution provides that these concessions shall cease after ten years from
the commencement of the Constitution. Presumably this would not forbid further
concessions after the ten year period in the unlikely event the community should be
deemed backward.
The Constitution not only provides a formula for determining the amounts of
grants and reservations, but defines membership in the Anglo-Indian community
Art. 366(2) . The definition is in terms of race or descent, but it has been held that a
person who fits this definition may be a member of another group, this racial defi-
nition does not conclusively define the status of those it describes. Wilson Reade
v. C . S. Booth , A.I.R. 1958 Ass. 128.
54. Arts. 16, 46, 335, 341. Cf Art. 330 and Art, 332,
Ibļd,

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MARC GÁLÁNTEŘ 51
educationally) backward classes.56 " Backward

senses : ( 1 ) as a generic term including the first
as well ;57 and (2) only those backward groups
the first two categories.58 It will be used in the
sense.
The Constitution itself does not define these groups no

provide any standard by which they may be determined.59
of Scheduled Castes and Scheduled Tribes it does prescribe
and an agency for designating them. The President is emp
specify, after consulting with the Governor of a state, tho
races or tribes or parts of or groups within castes, races and tr
shall for purposes of this Constitution be deemed to be Sche
in relation to that state. . . . "60 He may similarly specify "trib
communities or parts of or groups within tribes or tribal co
to be the Scheduled Tribes.61 Once promulgated, these
varied only by an act of Parliament.62 It is further provi
President shall appoint a special officer "to investigate
relating to the safeguards for the Scheduled Castes and
Tribes " and report to Parliament on their working.63 Acc
the office of the Commissioner of Scheduled Castes and Scheduled
Tribes was established in 1950 as a continuing body with co-ordinating
and reporting, but not administrative, functions.
56. Whereas Art. 16(4) refers to "any backward class," Art. 15(4) mentions
classes that are " socially and educationally backward." If the difference
in wording, never explained, can support any inference, it is that Art. 15(4)
covers, ^narrower class of groups while Art. 16(4) includes as well, those
backward in other respects than " socially and educationally." It should
be noted that Backward Classes Commission and the Government of India
have made no distinction whatsoever. So far the point has not been raised
before the courts.
57. See Art. 15(4) supra , p. 40
58. See Arts. 16(4) {supra, p. 41), 46 (supra, p. 40). Cf Art. 340, infra
p. 52, where it is apparently used in this restricted sense. The frequently
use'd term " other backward classes " is identical with the narrower
meaning.
59. Section (25) of Art. 366 defines Scheduled Castes as those so designated
under Art. 341 ; section (26) of Art. 366 defines Scheduled Tribes as those
designated under Art. 342 ; no definition of " backward classes " appears
at any point in the Constitution.
60. Art. 341(1). See Constitution (Scheduled Castes) Order, 1950.
61. Art. 342(1). See Constitution (Scheduled Tribes) Order, 1950.
62. Art. 341(2), Art. 342(^2). The list of Scheduled Castes was revised by
Parliament in 1956. See Constitution Scheduled Castes and Scheduled
Tribes Order (Amendment) Act, 1956.
63. Art. 338.

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52 íť PRotEGtiVË Discrimination h for backward classes iń iKďiA
Not only is the wider and more inclusive group of (socially and
educationally) backward classes undefined in the Constitution, but no
such method and agency for their determination is provided. Article
340 provided for the establishment of a Backward Classes Commission
to be appointed by the President :
. . .to investigate the conditions of socially and educationally
backward classes. . . .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 such difficulties and to
improve their condition
The absence of any machinery for

of backward classes apparently stem
nation of backwardness should be
Article 16(4), the chief draftsman e
question of which communities are b
local Government. A backward com
backward in the opinion of the Gove
It was anticipated that backward
Castes and Scheduled Tribes, were to
Central Government was assigned a m
This delegation to local authorities r
of the variation of standards and p
then provided benefits for backwar
be justified by the variation in lo
prescribing universally applicable te
to preserve flexibility in the designi
also have been presumed that "backwar
politically to look out for their own
Scheduled Castes and Tribes, centra
not required to insure inclusion of t
No special central machinery for s
ward classes is provided in the Cons
Commissioner of Scheduled Castes an
64. VII CAD 702.
65. This corresponds to a general distinction in the locus of financial resp

bility for welfare schemes. E.g., in the biennium 1956-58, Central fun
accounted for less than 2% of expenditures sanctioned for welfare schem
for backward classes but more than 25% for Scheduled Castes and mo
than 35% for Scheduled Tribes. RCSCST 1958-59, pp. 16-17.
66. Some of these differences are brought out in the debate on the adopti
Art. 16(4). VII CAD 689 ff.

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MARC galanter 53
such other groups as the President may spe

of the Backward Classes Commission.67
This investigative commission was established in 1953 and
directed to
determine the criteria to be adopted in considering whether any

sections of the people ... (in addition to the Scheduled Castes and
Scheduled Tribes . . .) should be treated as socially and educationally
backward classes ; and, in accordance with such criteria to prepare a
list of such classes. . . ,68
These directions indicate a shift to the notion of uniform centrally-

established standards and a central master list of backward classes
Accordingly, the Commission compiled a list of over two thousand back-
ward groups and recommended various measures for their economic,
educational, social, cultural and political advancement.69 The Commis-
sion listed as criteria useful in classifying communities as educationally
and socially backward : trade and occupation, security of employment,
educational attainments, representation in Government service and posi-
tion in the social hierarchy. 70 It did not use these standards directly to
isolate classes of backward persons but to isolate backward communities.
The unit to which these tests were applied were for the most part caste
and sub-caste groups.71
The Commission's list is clearly not a conclusive enumeration -
binding on Central and State Governments - of groups that may consti-
tutionally be given preferences under Articles 15(4) and 16(4). The
State need not make special provision for every group enumerated by
the Commission. It may make special provision for " any " backward
class, but it is under no constitutional obligation to make such provision
for every class designated as backward by the Commission orany other
agency. This is even more apparent as regards reservation of posts, for
Article 16(4) requires that the beneficiaries be a backward class which
" in the opinion of the State " is inadequately represented in the
67. Art. 338(3).

68. I BCC 2.
69. It has been estimated that 913 of the 2399 groups listed have a tota
1 16 million members (over 32% of the total population of India.) T
does not include women as a separate group, although the Commiss
recommended that all women in India comprised a backward class. N
does it include Scheduled Castes and Scheduled Tribes who make up ove
15% and over 5% respectively of the total population. (Figures are as
1951 census).
70. I BCC 45-47.
71. Cf I BCC xiii.

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54 " protective discrimination FOR backward CLASSES IN INDIA
services, implying a broad discretion to select among backward groups^

Preferences may be given to a group which does not appear on the
Commission's list. The Constitution gives no indication that State power
to provide preferences for "any" backward class is limited to those
enumerated by the Commission.72 Neither the Constitution nor judicial
decisions upholding schemes for reservations on the basis of lists compiled
by various States indicate that the State lists are to be supplanted by
the Commission's list.
The Ministry of Home Affairs not only expressed disappointment

with the criteria and conclusions of the Commission, but requested that
the State Governments conduct ad hoc surveys to determine suitable
criteria.73 When the replies from the State Governments " were not
found helpful," the Central Government requested the Office of the
Registrar- General of India to conduct ad hoc surveys to determine such
criteria. In the meantine, the Central Government requested that state
Governments provide benefits for "people who come within the
category of backward classes in accordance with their existing lists
and also with such others who in their opinion deserve to be con-
sidered as socially and educationally backward in the existing circum-
stances.74 As the result of a three-state sample survey, based on census
materials, the Ministry of Home Affairs has recently suggested
adoption of occupational criteria of backwardness.75 Thus central par-
ticipation in designation of backward classes has moved from the
specially-constituted Backward Classes Commission to regular
executive departments and from preparing of lists to the active
suggestion of standards. But the Constitution would not seem to confer
on these central proposals any conclusiveness as the exclusive employ-
able standards. It is the " State " in the broad sense of all Governmental
organs that retains the power of designation.76 And it may be ques-
tioned whether existing data are complete or refined enough to provide
a single uniform standard of backwardness suitable for all purposes and
all places. It seems evident that at least in the immediate future,
72. Cf. Dr. Ambedkar's explanation, VII CAD 702, quoted supra p. 52.
This conclusion is reinforced by the fact that the Commission is
not a continuing body with power to revise its list in accordance with
changing circumstances or upon receipt of more accurate information.
73. Government of India, Ministry of Home Affairs, Memorandum on the
Report of the Backward Classes Commission (Delhi, 1956).
74. Id., p. 5.
75. RCSCST 1958-59 pp. 11-12.
*6. The "State" in Arts. 15(4) and 16(4) must be interpreted as defined in
Art. 12 as including Governments as well as legislatures and State and local
as well as central authorities. See note 43 supra .

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MARC GALANTER 55
designation of * backward classes"

on a local and piecemeal basis. Current practices differ widely
from State to State.77
The governmental power to designate backward classes and the

scope of judicial review of its exercise will be examined from two
viewpoints.
(A) What differentia may be used in selecting such a " class " ?
and (B) What showing of backwardness is required ?
A. " CLASS The Constitution designates as the permissible
recipients of preferences not backward individuals or families, nor yet
backward castes, religious communities, occupational or regional groups,
but backward " classes These " classes " are restricted neither to
economic classes nor to classes in the sense familiar to modern social
science.78 The term seems to be used in the broad connotation of any
group of persons having certain common characteristics. In particular
it would seem to include, though it is not confined to, those classifications
otherwise forbidden in Articles 15, 16 and 29(2) - e.g., racial, religious,
and caste groups. For Articles 15(4) and 16(4) are exceptions or
provisos to these articles, limiting the operation of their provisions. If
the proviso that " nothing in this article " shall prevent the State from
"making preferences for backward classes is not broad enough to
authorize use of the forbidden classifications, then it was arguably un-
necessary to have any proviso at all since other classifications would be
permissible without it. And the history of Articles 15(4) and 16(4)
indicates they were included with this purpose.79
It seems generally accepted that the State may use caste as a classi-
fication in defining backward classes. The Constitution leaves no room
for doubt that the President and Parliament may use caste as a
criterion in defining Scheduled Castes. 80 But the caste criterion does
not enjoy similar impunity when used to define backward classes. In
the case of Scheduled Castes, the caste criterion is not only explicitly
77. For a summary of State practices, see the yearly reports of the Commissioner
for Scheduled Castes and Scheduled Tribes.
78. Cf. Article 23(2) where class is used in what appears to be an economic
sense.
79. The entire debate in the Constituent Assembly on Art.

around the question of which " communities " were intend
cluded. While some members expressed concern about
" backward " and apprehension about leaving it to the c
proposed to omit the adjective entirely, allowing unrestrict
reservations. VII CAD 673-702. On Art. 15(4), see note 14
80. Article 341. Seep. 51 supra.

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authorized by the Constitution, but its use is confined strictly to the

President and Parliament ; in the case of backward classes it enjoys no
such explicit constitutional sanction, nor is its use similarly confined to
the highest central authorities. While Scheduled Castes were to be
designated only by the President after consultation with a Governor
(and now by Act of Parliament), backward classes for the purpose of a
particular measure may be defined not only by Central and state
legislatures but by administrative departments as well. 81, Again,
Scheduled Castes are comprised of untouchables, who traditionally
suffered disabilities and restricted opportunities precisely on the ground
of membership in a particular caste. It is not clear that caste in and
of itself represents the same kind of barrier and source of disabilities to
members of other backward groups. 82
Nevertheless, the courts along with government agencies and The
Backward Classes Commission have accepted caste as a permissible basis
of classification. In the Venkataramana 83 case reservations were upheld
for " backward Hindus, " a list of castes designated as backward by the
Madras Government. The Backward Classes Commission uses caste as
the unit of designation of backwardness predominantly throughout its
report. 84
It might be wondered whether it is similarly open to the State to
use " varna " 85 as a basis of classification. This criterion was advocated
by a member of the Backward Classes Commission, 86 but his conten-
tion that backward classes should be defined as being " Sudras " was
rejected by the Commission. 87 It may be assumed that "varna" is
included within " caste " as it appears in the prohibitions of discrimina-
tion in Articles 15, 16 and 29. "Varna" has long been recognized as
81. See note 76 supra. It is possible that more than one list of backward
classes be employed in a State. See, e.g., the situation in Kerala reported
at RCSCST, 1958-59, p. 10.
82. Cf. the observation of M. N. Srinivas that " the barrier of untouchability"
cuts off Untouchables from the opportunities for group social mobility that
do exist within the caste system. " A Note on Sanskritization and Westerni-
zation, " XV Far Eastern Quarterly 365, 377 (1956).
83. Op. cit. supra note 25.
84. Cf. p. 53 supra. And cf. the misgivings expressed about the use
of caste by the Commission in the Forwarding letter of the Chairman,
I BCC vi-vii, xiii-xiv, and by the Ministry of Home Affairs in its memo-
randum, op. cit. supra note 73.
85. i.e., the four- fold division of society propounded by the classical Hindu law-
books.
86. Minutes of Dissent by Shri S. D, Sf Chąurasia, III BCC 22 ff.

87, I BCC 44?

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MARC GALANTER 57
having little application to present so

uncertain in many cases. To employ
of interminable litigation over varna
that " varna " would not be included
purposes of Articles 15(4) and 16(4) s
with the social and educational bac
eradicate.
Whether religious criteria may be used to define backward classes

has never been decisively litigated. While the Supreme Court in the
Venkataramana 89 case rejected the inclusion of Muslims and Christians
as backward classes, it was silent as to the permissibility of using religious
criteria. In State of Jammu and Kashmir v. Jagar Nath 90 a cabinet order
authorizing direct appointments to certain posts " to remove the
communal disparity " was held void. The High Court held the religious
preference invalid since there was no designation of the preferred group
as backward. 91 Similarly, reserved seats for Muslims and Indian
Christians on the Madras Corporation Council were held invalid. 92
Neither Court reached the question of whether an entire religious com-
munity might be designated a backward class.
The President, it has been held, may use religious criteria in desi-
gnating membership in Scheduled Castes. The exclusion from Schedul-
ed Castes of persons " professing a religion different from Hinduism "
has been upheld as a valid exercise of his power to specify "part [s]
within .... caste [s] " as Scheduled Castes. 93 The courts found this
88. E.g. Maharajah of Kolhapur v. Sundaram Ayyar , A.I.R. 1925 Mad. 497
(D.B.) ; Brindavano v. Radhamani , I.L.R. 12 Mad. 72 (1888). Fora
recent example see Ňagi. v. Rajkunwar, A.I.R. 1956 Nag. 138 (D.B.).
90. A.I.R. 1958 J. & K. 14 (DB), aff'g. A.I.R. 1958 J. & K. 1 (SJ).
91. An alternative ground for rejecting the scheme would be that the device
employed was not " reservation," but the Court did not deal with this
question.
92. A. R. V. Achar v. State of Madras , High Court at Madras, Writ Petition
No. 568 of 1952 (Subba Rao, J., Aug. 25, 1952), afTd. I.L.R. [1954] Mad.
908' (DB). In the same case, reservations for Scheduled Castes were up-
held as valid under Art. 15(4),
93. Gurmukh Singh v. Union of India , A.I.R. 1953 Punjab 143 (Special Bench)
(Sikh member of enumerated caste may be constitutionally excluded from
benefits) ; Michael v. Venkateswaran , A.I.R. 1952 Mad. 474 (D.B.) (Chris-
tian convert from listed caste may be denied right to stand for reserved
seat in Legislature). Cf. Karwadi v. S hamòharkar, A.I.R. 1958 Bom. 296
(D.B.) holding that mere declarations which fall short of public entrance
into another religion do not disqualify one for claiming preferences.

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religious classification a reasonable one in view of the fact that Scheduled

Castes are intended to include those who suffer under the stigma and
disabilities of untouchability, a condition which supposedly exists only
within Hinduism and which change of religion supposedly effaces, at
least in part. However, finding that the President was given entire
discretion to define Scheduled Castes, the courts have refused to review
the appropriateness of his criteria in their application to a particular
factual situation which might be an exception to the general association
of untouchability with Hinduism. 94
But as with caste, the permissibility of the religious criterion in the
Scheduled Caste area is not necessarily an appropriate precedent in the
area of backward classes. The President and Parliament are explicitly
given broad and exclusive power to define Scheduled Castes. The
implicit power of the State to define backward classes is not necessarily
as unfettered as the power granted to the President by the broad
wording of Article 341. Again, the relevance of religion to defining
untouchability is apparent, though it may not be applicable in marginal
cases ; there is no reason to accord it such relevance in defining back-
wardness.
A word might be inserted here about the other grounds of classi-
fication forbidden by Articles 15, 16 and 29(2). Articles 15(4) and 16(4)
are an exception to the prohibition on classification by race,95 sex,96
94. It is well known that conversion does not always bring an end to disabi-
lities : I BCC 28 ; cases cited note 93 supra. For a detailed and dramatic
instance of continuing disabilities among Christians, see Michael Pillai
v. Barthe , A.I.R. 1917 Mad. 431 (DB).
95. That the use of racial classifications is not entirely hypothetical is indicated
by the designation of the small Eurasian community of Travancore as a
Backward Class. I BCC 29. Cf. the provisions for Anglo-Indians, dis-
cussed note 53 supra.
96. It is clear that the State may provide benefits for women. Article 15 is
qualified by a proviso that the State may make "... any special pro-
vision for women. .. Article 15(3). Unlike special provision for back-
ward classes, that for women need not be favorable to them. . Yusuf Abdul
Aziz v. State of Bombay , [1954] S.C.R. 930. Article 15(3) qualifies only
Article 15 itself and does not engraft an exception on the prohibition of
sex as a criterion in Article 16. See Dattatraya v. State of Bombay ,
A.I.R. 1953 Bom. 311 (D.B.) and Venkataramana v t State of Madras, op.
cit. supra note 25. (And cf. Champakam Dorairajan v. State of Madras ,
op. cit. supra note 12 where the presence of a backward classes proviso in
Article 16 was thought to make the absence of one in Article 15 signifi-
cant). Article 16 concerns Government employment specifically and
overrides the more general Article 15 in this area. See note 38 supra .
Reserved posts for women would depend on their designation as backward
classes. That such an eventuality is not too far-fetched is indicated by the
recommendation of tļie Bąćkwąrd Cląsses Commission that #11 woinen iņ

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MARC galanter 59
place of birth, residence,97 desc

and caste, any of these may be
subject to whatever general s
pertinence are employed by the co
The use of any of these forb
permissible for the purpose of de
for other purposes these classificat
constitutionality that ordinarily a
tion between groups.98 Thus their
India should be considered a backward class. I BCG 31. While recom-
mending special concessions in education, the Commission did not mention
Government service. Id. at 32. Cf. the suggestion of the court in the
Dattatraya case that special provision for women might not be discrimi-
natory on grounds of " sex. . . .only " since women as a group have been
subject to other common influences and disabilities which make them a
definable group.
97. It has never been doubted that territorial criteria may be used in desig-
nating backward classes. The listings of State Governments and of the
Backward Classes Commission frequently define groups on territorial lines.
This raises the problem of migratory members. It has been suggested for
example, that members of groups that are Scheduled Castes in their
original State should be treated as backward classes in other States,
I BCC 155, or that they should be regarded as Scheduled Castes for a
generation. RCSCST, 1958-59, p. 11. At present they are not so
regarded. Id.
98. State action has been invalidated for providing restrictions, immunities,
rights and privileges on the basis of :
Caste : Sanghar Umar Ranmal v. State, A.I.R. 1952 Sau. 124 (D.B.) ; Pratap-
singh v. Rajasthan, A.I.R. 1955 Raj. 5 (D.B.) ; Bhopalsingh v. State, A.I.R. 1958 Raj.
41 (D.B.). See Nain Sukh Das v. State of U.P., A.I.R. 1953 S.C. 384.
Religion : Pratapsingh v. Rajasthan, supra. See Nain Sukh Das v. State of U.P.y
supra. Though Article 44 directs the eventual elimination of separate personal law
for members of different religions, the continuing validity of disparate rules of personal
law and the power of the State to create new rules of personal law applicable to mem-
bers of particular religious communities has been upheld. State of Bombay v. Narasu
Appa Mali, A.I.R. 1952 Bom. 84 (D.B.) ; Srinivasa Aiyar v. Saraswathi AmmaL
A.I.R. 1952 Mad. 193 (D.B.). But c.f. Sheokaran Singh v. Daulatram, A.I.R.
1955 Raj. 201 (F.B.), where a rule of Hindu law regarding recovery of interest was held
invalid as discriminatory against non-Hindus.
Place of birth : Janikiraman v. State of Andhra Pradesh, A.I.R. 1959 A.P. 185
(S.J.). Cf. Jangi Lai v. Baijnath Singh, A.I.R. 1952 V.P. 17.
Residence: Kishori v. Board of Revenue, A.I.R. 1957 Raj. 182. (D.B.). But cf.
Joshi v. Madhya Bharat, A.I.R. 1955 S.C. 334.
Language : State of Bombay v. Bombay Educational Society, 17 S.C.J. 678
(1954) (language qualification for instruction in State-aided school a violation of

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is saved by Articles 15(4) or 16(4)." But even if it is within the scope

of these provisos it is still subject to be tested by the general require-
ment of equal protection of Article 14. In examining claims based on
Article 14, classifications enjoy the presumption that State action is
reasonable and justified.100
To be permissible under Article 14, a classification must (1) use
" an intelligible differentia which distinguishes the persons or things
that are grouped together from others left out," and (2) " the differentia
must have a rational relation to the object sought to be achieved. . . "101
There must be " a nexus hjetween the basis of classification and the
object of the Act . . ." 102 These general standards apply to the use of
such criteria as caste, religion and race for defining backward classes.
(1) Ordinary caste and religion are thought to be "intelligible
differentia" for distinguishing among groups of personsē Their use
may be expected to engender problems of the meaning of membership
in such groups. Who is a member of a caste for the purpose of being
entitled to benefits and reservations ? 103 Is membership in a caste to be
determined solely by birth ? By allegiance ? By the opinion of its
members ? By the opinion of the general neighbourhood ? Does one lose
caste by conversion ? By excommunication ? 104 By assimilation ? By
joining a Hindu sect that repudiates caste ? Similarly, who is a com-
municant of a particular religion ? 105 Those born into it ? Those
who have been converted to it ? Those who adhere to its precepts ? What
is the effect of unorthodoxy ? Of excommunication ? Are the tests
used for application of personal law applicable in this area ?
Art. 29(20); but cf. Rajendra Rao v. Stale, A.I.R. 1955 Or. 1 13 (D.B.) where a
requirement of proficiency in the State language as a qualification for State employment
was upheld.
99. Patanjali Sastri, C.J. , in Kathi Raning Rawzt v. State of Saurashtra [ 1952]
S.G.R. 435, 442.
100. AI. Hanif Qureshi v. Bihar , A.I.R. 1958 S.C. 731.
101. Budhan Choudhry v. State of Bihar, [1955] S.C.R. 1045, 1049; B idi Supply
Co. v. Union of India, 1956 S.C.R. 487.
102. Id.
103. Earlier law on determination of membership in a caste is not extensive ;
litigation was rarely over membership in a caste, except as to the validity
of excommunication, but about the " varna " status of a given caste.
104. Recognition of excommunication as loss of caste membership for the purpose
of enjoying preferences would give formidable new sanctions to admittedly
backward assemblies.
105. There is more decided law on this, concerning the validity of marriages,
inheritance and co-parccnary rights where conversion (and sometimes re-
conversion) are involved.

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MARC GALANTER 6Í
The courts have been faced already w

arising out of the use of caste, religion
Castes and Scheduled Tribes.106 The case
to contest elections for reserved seats. Pr
with reference to Scheduled Castes and T
mining membership in backward classes
ward classes for a particular purpose mig
by incorporating broad definitions of me
how far it might employ a narrower or mo
(2) These criteria are to be confined t
tational relation to the object to be achi
social and educational backwardness p
backward.
It is submitted that the forbidden classifications might be used to
distinguish groups which have suffered under disabilities or lack of
opportunity because of, e.g., caste or religion or language ; and so long
as the State does not have available detailed data on the relative back-
wardness of different sections of the population, the use of relatively
crude classifications such as caste and religion might be considered a
reasonable method of isolating backward groups. But it should be
noted that the Backward Classes Commission did not find adequate data
even on caste lines. 108
106. See Chatturbhuj Vithaidas Jasaní v. Moreshwar Parashram , [1954] S.G.R.

817 (holding that a Mahar did not cease to be such by virtue of adherence
to a Hindu sect which repudiated caste and setting forth in detail the tests
of membership) ; Karwadi v. Shambharkar , A.I.R. 1958 Bom. 296 (D.B.)
(active supporter of neo-buddhist movement who refrained from public
avowal of Buddhism remained a Mahar) ; V. V. Giri v. Dora. A.I.R. 1959
S.C. 1318, aff'g A.I.R. 1958 A.P. 724 (D.B.) (Moka Dora did not lose tribal
membership by adopting customs of and being accepted as a Kshatriya) ;
In re Thomas , A.I.R. 1953 Mad. 21 (D.B.) (convert to Christianity loses
caste) ; Mulai v. Lai Dan Bahadur Singh , IX Election Law Report?
8 (Gonds did not become Kshatriyas instead by virtue of proclamation of
former Prince.)
107. Were a caste designated as backward and membership defined narrowly,
exclusion from benefits would be challenged as a denial of equal protection
under Art. 14. The State would then be required to show that its differ-
entia had a reasonable relation to the object to be achieved.
108. The Commission reported that neither administrators nor census olncials
were able to supply the relevant data and that figures supplied by the com-
munities themselves were unreliable and exaggerated. I BCC, 7. Cf. the
frequent observation of the intensification of caste feeling resulting irom
collection of caste data in the census. Id., xviii ; Ghurye, Caste and Class
in India , 92 (Bombay, 1957).

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62 " PROTECTIVE DISCRIMINATION ,s FOR BACKWARD CLASSES IN INDIA
The unreliability of caste as a criterion is emphasized by the local

nature of the caste system. Local variation in the position of a caste-
group may make a State-wide generalization of little value. Members
of the same caste in different parts of the same State and even within
the same district may differ greatly in social standing, resources and
opportunities. It is questionable how far lists of castes covering any
sizeable area would isolate groups with distinctive social, economic and
educational characteristics. To the extent that considerable discre-
pancies in condition exist within a caste, it is to be feared that the more
prosperous segment will be the recipients of the lion's share of the bene-
fits, thus subverting their purpose of helping the most disadvantaged.
The caste criterion presents the additional danger that social and
economic backwardness may easily become confused with low ritual
status. Although the ritual or ceremonial standing of a caste is one of
the factors affecting the extent of social and educational opportunities of
its members, there is no reason to assume any exact correspondence.
Preferences are intended for those suffering the greatest deprivation of
resources and opportunities. This depends on many other factors as
well as ritual position. 109
The religious criterion might be thought to be more suspect than
caste, since it commonly involves a larger group with more economic
and social levels, while caste is often associated with a traditional occu-
pation and with a greater affinity of habits and social position among
its members. While none of these criteria can be condemned per se,
it is suggested that each particular instance of their use must be con-
sidered on its own merits. To the extent that better data become avail,
able, use of such criteria might be regarded with increasing suspicion-
Such suspicion might be allayed to the extent that other " neutral"
standards are combined with the forbidden classification - eêg., an
economic ceiling for enjoyment of benefits, particularly if the desig-
nated group is large and varied in circumstance. It is presumably
possible to find differentia of backwardness with greater inherent con-
nection with the conditions to be remedied. The problems of collecting
109. Ritual position may itself be indirectly affected by governmental patronage

and the increased educational and economic opportunities afforded a group
receiving benefits. And it is questionable whether any standards set up by
governmental agencies for estimating the position of a caste in the local
hierarchy could in fact do so or whether such governmental estimates will
become one among many determinants of the local caste structure. It is
arguable that in any event the Constitution gives the Government no man-
date to officially confirm or confer ritual position on any group.

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MARC GALANTER 63
data along the lines of other class

greater.
There are indications of a movement in the direction of non-com-
munal criteria of backwardness. The Ministry of Home Affairs has
recommended to the States an occupational test with an income ceil-
ing. 110 The Bombay Government has put into effect an income
criterion, abolishing all communal criteria. 111 Other States were
reported considering the use of economic and social indices either as an
alternative to communal criteria or in conjunction with them. 112
Whether tests like cash income or occupation are sufficiently precise in
isolating those most deserving of help may be questioned, but at least
the road is open for further refinement and elaboration of criteria.
Once it is accepted that communal criteria are to be used in con-
junction with other indicia of backwardness, the question arises whether
it would not be simpler to use the latter exclusively. The answer would
seem to depend on the range and distribution of income, education and
opportunity within communal groups, a subject on which there is as
yet little reliable data. If it turns out that there is actually consider-
able uniformity of circumstances, these criteria might be practicable.
But, paradoxically, the very data that would assure equitable administra-
tion of preferences on caste lines would permit dispensing with caste
criteria altogether.
B. " BACKWARDNESS ". The courts have several times been
called upon to decide whether classes designated as backward by State
Governments were properly included among " backward classes " for
purposes of the Constitution. Preferences for members of a particular
110. As reported in the Annual Report of the Commissioner of Scheduled Castes

and Scheduled Tribes, the Ministry's proposal was that a list of backward
occupations be drawn up. This list was to comprise :
"(a) any non- [sic?] agricultural occupation in any State of India in
which 50% or more of the persons belong to the Scheduled Castes
or the Scheduled Tribes.
"(b) any non- agricultural occupations in which general literacy percen-

tage of the persons depending thereon is less than 50% of the
general literacy in the State."
RCSCST 1958-59 p. 12. This is to be used with a family income ceiling
of Rs. 1 ,000 per year, a figure based on the notion that the average family
consisted of 5 members and per capita income in the countryside did not
exceed Rs. 200.
111. Id.
112. The Punjab Government was considering an income ceiling test with
higher ceiling for members of communities " socially looked down upon
M

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group are not permissible if that group is not a backward class. In

Venkataramana v. State of Aladras ,113 the Madras Government had filled a
group of posts in accordance with its Communal G.O. which divided
all available posts according to quotas among Harijans, Backward
Hindus, Muslims, Christians, Non-Brahmin Hindus and Brahmins. The
Supreme Court held that reservation was permitted solely for backward
classes and that it was " in the circumstances impossible to say that
classes of people other than Harijans and Backward Hindus may be
called Backward Classes." 114 The denial to petitioner, a Brahmin, of
the opportunity to compete for the seats reserved for other non-back-
ward groups was caste discrimination within the prohibition of
Article 16(1) and (2). In the Jagar Nath case 115 the court held that
Government could not specify preferences for members of a particular
community irrespective of their membership in a backward class.
Thus some finding by the State that the group (for whom the
reservations are made) is a backward class is required. The question
then arises : what criteria may the State use in determining whether a
group is backward ? Are the courts empowered to exercise any control
over the standards employed by the State for this purpose ?
In Mysore the State Government, having designated as backward
classes " all communities other than Brahmins who are not adequately
represented in the services," reserves seven out of each ten posts for
these communities. This was upheld as within Article 16(4) by the
High Court in Kesava Iyengar v. State of Mysore. 11(5 Although the
criteria by which these groups were classified as backward do not
appear, it seems that backwardness was defined largely in terms of
" under-representation " in the services. Finding that " doubtless the
State is the sole authority to classify the communities as ' backward
classes " 117 the court declined to scrutinize the adequacy of this
classification. The State list was actually a Government order passed in
1921 - thirty-four years before - and the fact that the Government had
not seen fit to revise the list was accepted as sufficient evidence of its
current accuracy.

114. Id, at 319. Cf. Achar v. State of Madras , op. cit. supra note 42.
1 16. Op. cit. supra note 26.
117. Id. at 28. The same classification has recently been extended to the areas
integrated into Mysore by the reorganization of States in 1956t RCSCST
1958-59, p. 12,

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MARC GALANTER 65
Article 16(4) permits reservations in f

of citizens which in the opinion of the
sented in the services under the State." The determination of the in-
adequacy of representation is left entirely within the discretion of the
State. Such a determination of inadequacy is a necessary but not a
sufficient condition for reservation. Before reservation is permissible,
the inadequately represented class must first be determined to be back-
ward.
It is submitted that the courts may surely decline to accept in-

adequate representation itself as conclusive of the fact of backwardness.
Thus, in the Jagar Nath case the Government order, presumably based
on a finding that Muslims were " under-represented," was not sufficient
to satisfy the Court that they thereupon comprised a backward class.
It might be argued that under-representation is itself a species of
backwardness, recognized as such by the Backward Glasses Commission,
and that Article 16(4) which is not, like Article 15(4), confined only to
the "socially and educationally backward," authorizes reservations for
groups which are backward in this specific respect. Inadequate
representation has been employed by the Backward Classes Commission
as one of its criteria for general guidance in designating backward
classes.118 But it is clearly used there as an index of educational attain-
ment and social mobility - i.e., as a test of social and educational back-
wardness - rather than as a kind of backwardness independent of these.
The absence of "socially and educationally" in Art. 16(4) does not
justify dispensing with some requirement of backwardness beyond mere
under-representation. For to treat it as sufficient reason to permit
reservations is to read the word "backward" out of Article 16(4) entirely.
It would also open the door for communal quotas. For if mere under-
representation is a sufficient criterion and if (as it undoubtedly may)
the State may apportion reserved seats among specified communities,119
a system of communal compartments is possible much like that condemn-
ed as unconstitutional by the Supreme Court in the Venkataramana
case.120

119. See text p. 4 supra.
120. One difference should be pointed out. The communal quotas in the
Venkataramana case assured each group a certain number of seats ; its
members could not obtain more. Under the Mysore arrangement the
number of seats reserved for each community is a minimum and it would
be possible for members of these groups to compete for and obtain part of
the unreserved 30% (This would seem required by the principle that
reservations are to serve as minimums but not as a ceiling. See Raghu-
ramulu v. State of Andhra Pradesh , discussed supra at p. 49).

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The justification for accepting under-representation as itself a con-

clusive criterion of backwardness is the notion that members of any
communal group are entitled by right to a portion of seats commensurate
with their ratio to the total population. The Constitution repudiates
this notion by making it a Fundamental Right of every citizen not to
have another preferred on the ground of his caste or religion.121 The
only exception to this Fundamental Right is in favour of members of
backward classes. However broad the discretion enjoyed by the State to
designate backward classes, it does not include the power to deem as
backward any group which may be "under-represented" - for this would
turn the exception into a general principle.
At present there is no clear indication of the extent to which the
courts will require a satisfactory showing of backwardness or what indicia
they will accept or require. In the Kesava Iyengar case the High Court
was unwilling to scrutinize the Government's determination at all,
beyond satisfying itself that such a determination had been made. But
the High Court in Jagar Nath demanded some further showing beyond
mere " under-representation." In the Venkatar amana case, too, the
Supreme Court's refusal to accept the groups other than Harijans and
Backward Hindus as backward, though it seems that some of the others
might easily have been shown to be "under-represented" - indicates that
the area is not totally outside the realm of judicial scrutiny.
The sweeping language of Articles 15(4) and 16(4) indicates that
the Constitution makers relied primarily on the discretion of the politi-
cians and administrators of the future rather than on the courts to keep
the principle of preference within boundaries consistent with the Consti-
tution's overall scheme of eliminating caste, religious and other discrimi-
nation. These provisions are an expedient - hopefully a temporary one
- giving the executive and legislatures broad discretion in their applica-
tion. ^However, this discretion is not so broad as to exclude entirely
judicial review of determinations of backwardness. 121a The Constitution
121. See page 39 supra and cases cited in note 98 supra. It might be noted that
earlier proposals for reserved seats and posts for religious minorities were
eliminated from the final version of the Constitution. IX C.A.D. 701 if. ;
cf. note 19 supra.
121-a. The recent decision of a Division Bench of the Mysore High Court in
Ramakrishna Singh v. Stałe of Mysore , A.I.R. 1960 Mys. 338, holding a
Mysore Government notification ultra vires Art. 15, requires mention here.
The learned writer of this paper could not discuss this case because he
received its report after the completion of the paper. He has however
intimated that he would send a comment on this case to this Journal
[Ed.]

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MĄRC GALANTER 67
gives Fundamental Rights to individual citize

city rather than as members of communal gr
the fundamental right that another, exceptin
class, shall not be preferred by the State on t
in a particular group. This right is reinforced
to the judiciary to enforce it.123 However, it
the extent that the còurts scrutinize designat
see that Government has used its discretion within the limit of those
exceptions. Furthermore, such review would seem essential to effect the
policy of these exceptions. For to the extent that the granting of
preferences is unrestrained, the less the assistance the intended beneficia-
ries - the most backward - will receive.124 Such review was envisaged
by the draftsmen of the provisos.125
Review of designations of backward classes is not foreclosed by
existing precedents. The forbearance of the courts from questioning
the President's determination of Scheduled Castes is not an appropriate
precedent, for in that case the highest central authorities were given
explicit and exclusive authority and entire discretion to make these
determinations. But there is no warrant for extending this to the area
of backward classes, whose designation is not so confined and may be
made by agencies whose accountability is more parochial and who are
more likely to share, or at least be responsive to, local prejudices and
pressures.
" Untouchables " (Scheduled Castes) and " tribais " (Scheduled
Tribes) are comprised of a limited number of definable groups, already
in existence and forming a minority of the total population. But back-
ward classes comprise no such definite group - it is a category indefini-
tely expandable, which might include a majority as well as a minority.126
122. State of Madras v. Champakam Dorairajan, [ 1951] S.G.J. 313, 315 . Venkata-
ramana v. State of Madras , op. cit. supra note 25.
123. Art. 32. Cf. Art. 226.
124. Review would thus be in conformity with the' policy laid down by Art. 46,
a Directive Principle of State Policy. While these Directive Principles are
not themselves justiciable, they are to be taken into account by the Courts
in determining the scope and application of Fundamental Right. See note
12 supra.
125. VII C.A.D. 702. Cf. the criticism that Art. 16(4) would provide " a para-
dise for lawyers," VII C.A.D. 699.
126. See, e.g., the situation in Mysore where backward classes include the entire
population except for Scheduled Castes, Scheduled Tribes and Brahmins
and constitute a majority of the total population. RCSCST, 1958-59
p. 12. Scheduled Castes would seem to have little to gain from expansion
of their numbers and the consequent dilution of benefits ( the quantum of

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The distribution and social position of Scheduled Castes makes it un-

likely that they could exercise a preponderant influence on the Central
Government but it is not improbable that backward classes could exercise
such influence on the local or State level. Different dangers are involved
and different safeguards are required. Thus, refusal by the courts to
review the exercise by the highest central authorities of their exclusive
power to designate Scheduled Castes would seem to imply no similar un-
reviewable authority in local agencies designating backward classes.
Granting the inherent difficulty of defining such an intangible as
backwardness and the scarcity of detailed information on the social and
economic condition of various sections of the population, the reluctance
of the courts to establish definite standards is understandable. Were
the courts to require a conclusive showing, based on reliable evidence,
that a given group is backward, State schemes might be subjected to
endless litigation127 and their administration unduly burdened.
It is submitted that such a danger does not justify complete abdica-
tion of review. There is some scope for judicial review even without
the courts themselves prescribing definite standards of backwardness.
The use by the State of some reasonable standards might be required -
e.g., literacy, occupation, income, etc. As a minimum it might be
required that the recipients be listed by the Backward Classes Commission
or that there have been some independent investigation of their circum-
stances using standards deemed acceptable. Similarly, the courts might
require that the determination be based on an investigation recent enough
to be reasonably relied upon as reflective of current conditions. Another
conceivable test would be a reqúirement of an economic ceiling for the
enjoyment of benefits, especially if the designated group is a large one.
The use of such safeguards might be taken as indication of reasonable-
ness, just as the use of bare caste or religious criteria should be suspect.
Conclusion.
! While forbidding discrimination by the State, the Indian Cons

; tion empowers the State to grant benefits and reservations to
• backward groups. The State enjoys broad discretion in determini
extent and method of operation of these schemes, leaving little scope
judicial review. The courts, however, must ensure that these sc
which is outside of their control.) But a situation involving tangible in
tive to existing backward classes to expand the category of backward c
is less difficult to imagine.
127. Ironically such litigation might be reminiscent of the older litigatio
the varna status of particular castes, with the difference that groups w
now trvy to prove they were truly backward*

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MARC GALANTER 69
are administered so as to work toward

classes, but that they are not admin
duly. There is somewhat greater sc
mental designations of backward gr
mitted to use in defining backward
forbidden, such as caste and religio
rational relation be shown between
tion of backwardness. Furthermore,
ing that the group has been determ
use of some reasonable criteria. T
mere under-representation may be r
Within this limited area of judicia
this experiment in protecting and
ossify into a scheme of communal q
ment of the equality it is designed t
****
America can remain a land in which majorities

are forbidden to tyrannize political minorities, a lan
happens to an individual is deemed important to the
whole, a land in which means as well as ends are
concern, only if Americans want this kind of lan
Court cannot decree its preservation. The Suprem
reflect the expressed or latent convictions of all
aggregate are America. UChartes EvansL Hughes,
aphorism he no doubt regretted having uttered, o
the Constitution is what the Supreme Court says
the Supreme Court, however, providing the eth
animates its decisions, is the massive though sometim
of public sentiment. In the end, the Constitution
what the People of America will it to be. That is
everybody's business.
- Waltern Gellhorn, American Rights (1960) p. 200

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COURTS AND THE EXECUTIVE
It is of the essence of the rule of law that every author

the State including the Executive Government should con
bound by and obey the Law. It is fundamental to the
polity that India has adopted and which is! embodied in t
tion that the courts of the land are vested with the powe
preting the law and of applying it to the facts of the cas
properly brought before them. If any party to the p
considers that any court has committed any error, in the
ing of the law or in its application, resort must be had to
or appeals as the law provides. When once an order has
which the court has jurisdiction to pass, it is the duty of
bound by it to obey the order so long as it stands, and it
to the subversion of orderly administration and civil Gov
parties could disobey orders with impunity. If such is
as regard private parties, the duty to obey is all the mor
in the case of Governmental authorities, otherwise there
a conflict between one branch of the State polity, viz., th
and another branch, the judicial. If disobedience could
ed, it would result in orders of courts ceasing to have an
and judicial power itself becoming a mockery. When
Government obeys a law, or gives effect to an order of a
against it, it is not doing anything which detracts from
but rather, invests the law and the courts with the di
are their due, which enhances the prestige of the executi
ment itself, in a democratic set-up.
-^Ayyangar, J. in State of Bihar v. Sonabati Kumari ,

S. C. 221, 231.

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"PROTECTIVE DISCRIMINATION" FOR BACKWARD CLASSES IN INDIA

Author(s): Marc Galanter

Stable URL: https://www.jstor.org/stable/43953782

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The Constitution of India is prefaced by a resolve " to secur

♦Assistant Professor of Social Sciences, The University of Chicago.

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as subsidiary to the chapter of Fundamental Rights . . . . " State of

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Similarly, Article 16, which forbids dis

" any provision for the reservation of

In authorizing preferential treatment for the backward on the

These differences should be noted : (1) Art. 335 is confined to Scheduled

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British period preferences and arrangements for distribution of power

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This departure from the genera

" religious denominations," the denominational rights run subordinate to the

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whose claim for appointment can be sustain

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be disadvantageous to the more backward.

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Some judicial control over the extent of reservations may be

34. RCSCST, 1953, p. 134 ; RCSCST, 1954, P. 171.

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clause of Article 14. 37 This would amount to a rule of "reasonable-

The scope and operation of schemes for preference

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The scheme of preference must be administered só as i ¿ operate1 īn 1

Such rules, said the Court, were to be confined in their operation to

On the other hand, members of backward classes are not entitled

48. A.I.R. 1958 A.P. 129 (D.B.).

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Designation of groups entitled to preferences

The Constitution permits preferences for three categories of grou

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educationally) backward classes.56 " Backward

The Constitution itself does not define these groups no

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The absence of any machinery for

64. VII CAD 702.

65. This corresponds to a general distinction in the locus of financial resp

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such other groups as the President may spe

determine the criteria to be adopted in considering whether any

These directions indicate a shift to the notion of uniform centrally-

67. Art. 338(3).

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services, implying a broad discretion to select among backward groups^

The Ministry of Home Affairs not only expressed disappointment

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designation of * backward classes"

The governmental power to designate backward classes and the

79. The entire debate in the Constituent Assembly on Art.

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authorized by the Constitution, but its use is confined strictly to the

86. Minutes of Dissent by Shri S. D, Sf Chąurasia, III BCC 22 ff.

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having little application to present so

Whether religious criteria may be used to define backward classes

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religious classification a reasonable one in view of the fact that Scheduled