JUDICIARY AND RESERVATION POLICY - Shodhgangashodhganga.inflibnet.ac.in/bitstream/10603/621/11/11_chapter5.pdf · CHAPTER 5 JUDICIARY AND RESERVATION POLICY 5.1 Introduction Judiciarl

CHAPTER 5

JUDICIARY AND RESERVATION POLICY

5.1 Introduction

Judiciarl being (he guardiali 01 the fundamental rights o l the citizen has more

than often been hl-ought to play a ~ e r y significant role in matters pertaining to

resm~ation pollc). It h;~s olien acted ar a check and balance on the government. On

many occasiorls it h a warned, restricted and annulled govelnment decisions which

when seem to dfcet the ~ildividual's iiglits dctninentally. In consonaxe with principles

of judicial actixism and jud:.cial interpretation it even lay d o m rules where the law is

either silent or c v n t ~ q lo principles ol natural justice and also interprets certain laws

and provisions ro li1;lke 11 t ~~or<s lucid and intelligible. I t has gone into great depths in

examining thc vcr! method!; of collci:ting information, veracity of those facts as writs

and petitions haw been lilcd in varic>us lligh Courts and Supreme Court questioning

even the minutest aspect. ol re:;en,arion policy. Thc present chapter intends to examine

the valious intcl-pretatii~n g i \ w by tl~c I ligh Courts and the Supreme Court on several

apects of rescr\aiio~l pi~licq Also the: problems faced hy the judiciary in dealing with

reservation po l i~) is also exanined.

5.2 Communal Reservations

The Supreme C'clurt ivas brought into the picture for the first time to play its role

in the fa~rrous c a w ('l~;u~~pal\:rln Iloi-ail.ijan V .;r;ltc o i ~ a d m s . ' (A.1.R 1951 p. 226).

The 'Cladras ( io \e~-~unen t brought ahout a comiii~~nal government order-

with the ititcnti~)n 01' providing representation to various communities in

educational institutions and jobs. Elen the Blalunins who constituted 3 % of the

pop~~lation were aliottccl I :5% of thc vacancies. 'This particular government order was

challenged bei0rc the Llatlra,~ High C ~1urt on the grounds as being ultra vires of the

constitution o l India iuld contrary to the principles of hndamental rights. The Madras

High Court iin~rullrd the govenunent order and the Government went in appeal before

the Supretne ('OUII. l l l e S~lpreme C o ~ m pointed out that reservations in appointments or

posts could bc ixlde 111 i;ivour of on! backward classes of citizens, which are not

adequately represented n1 tlie :iewices under Article 16 (4 by the state, but the omission

01' such a11 csprcss provision tiom Article 29 cannot be regarded as significant. "lt may

he &ell that tlrc 1ntenti1111 of the consritution was not to inti-oduce at all communal

consideration in niattcrs of admission into the educational institution maintained by the

state or recei\ irig aid OLI I of'state funds" (Singh. S. N. 1996: 49-50). On these grounds

the Supre~ne ( ' I ILI I I tlis~nlsscd the Madras Governrnent's appeal.

In piiihuancc of this decision the government in order to prevent

intervention I T > tllc c ~ ~ u r t s on reservation brought in the first constitutional

amendliient incot-poratitlg r i i c l e 15 ( 4 ) into the Constitution.

5.3 Caste as a Criterion

I'lre 11ig.1113 ~.'o~itro\er:iy with ~\.gard to resesvation policy is on two grounds

ie.. i t takes c;l\(c. as ii i-ritc~ion and i t ciluatrs caste with class,. The controversy has

gaincd in st1c11y111 I the alleg;~tiol~ being levelled that by taking caste as a

criterion woitld only Ii~ster castcisrn and cause sectat-ianism in the country. The

courts hiivc generally allowed t i ~ i n g caste as a criterion in determining

backwariiness It has a150 on nuttlct-ous occasions allowed equating caste with

class.' In Vcnka t ran~~na \'. Statc ol'hladras the Supreme ctrurt upheld reservations

tbr "backward Hindus". a list of caslrs, designated as backward by the Madras

(iovemment (i\ . l .K 1951 !i.C. 229). in Kanlakrishna Singh V . State of Mysore it

was argued that "Class" in Alticle I5 I 4) included "Caste by implication. since that

Article specified 'Scheduled Castes' as opposed to "Backward (Ilasses''.

I'he Court hcld that "('lass" ir~iluded persons grouped together on the basis

of their castes. though i t ivould cert;.~inly be open to the goverliment to determine

class on any otticr bitsis.

Keliance solt.1) on caste ha. Ixen repudiated by the (lourts. Caste can

serve as one anlong thc several measuring rotis of backwardrtess, Ignoring several

other relevant ikctors like occupat iu~~. educational standards et a1 cannot be

accept;lble.

T-he C'OLII-t titrther (enlarged rhc ambit of the term backward class by

including conittlunities also along b i t11 backward caste. This was because caste

system since i t is conlined tc Iiindu rclision only. the benefits ol'reservation might

1101 esiend lo nicrnbers 01' other comnlunities who are also placed in similar

situation ;is ihc l%;~ck\\a~-ti ('lasses. l Ie~ice in Ralaji V.. Statt: of Mysore the court

laid docvn e~lucatrt~n;~l hocA\\;~rdness al.;i! ,IS a criterion for determinin~ backwardness

\\bile at thc sanic timc obicc~ing to casic l~,tzk\v\.ordncss alone as ;I criterion. The coutt

took strenuous ohjcctiiln .o exclrlsi\c reliance of Mysore o n Caste and noted that

occupation ;i11(1 place 0 1 ' Ihahitatioti are also relevant to determination of the

backwardness of".! cilmnlunity o l pcisons" (A.I.R. 1963 SC 659). "It is for the

attainment ot'sociai and economic iuslice that Article 15 (4) authorizes the making of

special provision IOr the aduancemc~lt of the communities there contemplated even if

such provisions may hc inconsistelit with the fi~ndamental rights guaranteed under

Article 15 or 2') 1 2 ) . Ilic court concluded that "only those communities which are

well below thc stale average (of liti:racy) can properly be regarded as educationally

backward classes ol'ctti~ens" (A.l.li 1963 S C ~ ~ O ) . '

5.4 Kesewation by Conversion

Since reservatiiin benefits ;ire confined to caste group among Hindus in

Majority of Statcs in indi~t. sever;iI cases of people reconverting themselves to the

Hindu faith have L O I I I ~ . t,.) notice. lhis has caused much consternation among

Backward ('lasses ntcmher:i wh11 Ice1 that they have been usurped of their

privileges b> an outsiilcr. 'The Supt-erne Court in Chathurbhuj Vithaldas Jasani Vs

Moreshwar I'arashram case laid down three factors to be considered when a

convert is to be tleel~li~tl entitled to henetits of reservation allotted to a particular

caste group: ' I I ) the ~eactiorts of il-te old body, (2) the intentions of the individual

himself and I ; ) the ruics of Ihe nc\v iirder" (1954 SCK at 838:). It means that the

old ordcr in \ \ i ~ c h 11c i.on\er\ed hin~sclf into should have no objection in admitting

him Into the li~ld. I lie individual should snap all his ties with his old faith and

ohscrvc tile l i ~ i l ~ ~ l s atid otl~er code 1 1 ci)~iduct laid down by the new faith and also

slior~ld 1101 i t1 . i t i ? I ~ ~ ; I I I I ~ C I lay clainii 11' tlic pri\.ilcyes entitled to the mcmhers of his

old faith. I h c rules 0 1 ' new ordei- sliould also have provision in admitting new

members into its fhld esactly in the same way as expelling one. This means that

there should hc some elaborate ritu;rlh. functions and conditions in the new order

which thc nc\r con.<etl s h ~ ~ u l d undergo bef'ore being enrolled as a member of the

1 new order.

5.5 Reservation by Adoption

Rehervatioli policy is envisaged ancl implemented with the intention of

alleviating various ioc~al . economic and educational deprivation undergone by a

person right froni his hitth. Hencc when a person belonging to an upper caste is

adopted by t i lower zastc person at a later stage he has not undergone the

deprivation underwent hq a lower caste person. Neither the adopted nor his natural

father were iictilns ol elements of social deprivation or caste disabilities which

reservation ~(I I IL . ! il~telicicd to erase oft. Ilence a person so adopted is not eligible

for bt:nefits acctnii~ig ,1111 of reserivltlon policy. The Mysore High C o ~ ~ r t gave

incisive solutioli to the ndopiion problem in Shantha Kumar V State of Mysore

( 9 ( I ) M I.. I . 2 I ): Shantha Kumar the son of a supervisor in the National

extension her\ ice \+;I?, giveri i r ~ adoptio~i to a coolie. The adoption supposedly took

place three \ctirs carlicr when the boy was 16, but the deed of adoption was

execu~.ed just tlirce t~ionths of the application to the medical college. The selection

committee relused to regard hitn ;is a member of the Backward class and he

petitioned thc I ligh court to overturn that decision. The Court observed that the

rationale l i ~ r i-cscl-\atiir~i 1 :~s B;lcL\va~-d classes was to offset the unfavourable

etrvil-onmeiitt~l < . O I ~ ~ I ~ I O I I ! , o t ' s ~ ~ c h PCI-SIIIIS. 13111 the applicant had not suffered any

environmental ilisad~;lnkiges wliilc l i \ ing w ~ t h his natural father for his first sixteen

years. " cannor he siud to destroy ot- ililllify the advantage" (1071 (1) Mys L. .I. at 23)

conferred by his c;lrI~er upbringing. 111 the case of a late adoptee who "had all the

while imbibed thr e~lvironrnental ailvclr~tage of his natural father's income and

occupation" (Ibid) i t IS the income alrd occupation of the natural father rather than

of the adoptive tather that is relevant in determining eligibility for benefits for the

backward ciasscs. Othenuise, adoption could be used to divert benefits from the

intended beneliciarie.

5.6 Kescwatioo through Marriage

-The COLIIZ has once again upheld its view that a person should have undergone

the tiisabilities and deprivations of hackward classes before getting entitled to

reservation benefits. In the case of 3 nlarriage between an upper caste person and a

backward clai, pcl-sot~. thc fi~nner ,b\oi~ld never be eligible for reservation benefits

since he has not undergonv or was silhiect to social or educational backwardness. In

IJrmila (iinda L's i Jliion of India a woman of high caste origin married to a scheduled

caste man applled li)r a reserved post and claimed that by the Hindu theory of marriage

she had become his Sapinda and castt: lcllou (AIR 1975 Del 115). The court put aside

these spit-itual considerations "and ileld that as one who was not personally

handicapped \Ilc could !lot take ad\:intagc of thc special provisic~ns contemplated by

Articles l5(4) atid 10 (4) because slit is not onc of thcm ........ She is a high caste

Hindu who uah not suhject to any such backwardness either socially or educationally"

(.UK 1975 l ) ~ i I 1 ( > I I ( I pt:nnit I ICI to compete might det:at the purpose of such

~~rovisions h! i l~vc~ . t iny I-~cnclits ;I\ \<I! ti-om legitimate beneficiaries and open

possibilities o t :~huse. i I-mila Ginda is Lievoid of any assertions or assimilation affinity

of conditii>tir t> r acceptance by the hush~ulds group.

5.7 Educational Backwardness

Othcr than caste, educational hackwardness has been fixed as a criteria for

determining bt~ck\\a~-dnes:,. This acquires immense significance as a person even

though belongs to backward caste has to attain the minimurn prescribed educational

qualilicatior~s hclbrc getting entitled to reservation benefits, like securing admission to

a professional collese or even a joh. I hree indicators have been chosen by various

state govcrnmcnts iri dctcrn~ining educa~ional backwardness i.e. literacy rate, access to

educational lic~lities. mental attitudc towards education. A caste if it is to be

deemed as edi1cation;llly backward \hould be well below the state average of

literacy rate tixed h\i t h ~ ; slate.' In Balaji Vs State of Mysore the court stated that

-'only those citl~iniunitics which are uell below the state average (of literacy) can

properly be rcg~rcied as edl.tcational1y backward classes of citizens" (AIR 1963 SC

660). I~lowe\cr. the cou1.l refused to entertain the view that literacy rate alone

cannot be considered a sole criterion for determining educ:ational backwardness.

The court sug~estetl scilne other pl.inc~ple of' criteria to be evolved in determining

the same. fit~\\c\.el- i t i i~dn't make esplicit o r lay down any specific criteria other

than literacy rate In iletcrrnining educ;~ltonal backwardness.

5.8 AccessibiliW to Educational Facilities

Educatiorial back\\ardness in India can particularly be attributed to lack of

acccss to ~ L ~ L I ~ ; I I I ~ I I I : I ~ l;rc~itii:s. This II:I.> I-esultcd in sevelal area? i l l thc rcgion being

de:iignati-(I as hackn~ard. tiencc pcoplc residing in these are=; have been unable to make

much adva~rcemcnt i l l the socio ccononiic milieu. which !her> caused such persons

hailing frciln t h e ~ ;Ireas being ini.luded in the list of con~munities for

reservation. Such a decision was challenged at the court. In Dilip Kumar V s

Government of IJI' the Supreme Cour t decreed that "the shortage of Higher Secondary

Schools in XI area and low marks m the pre-medical test obtained by residents of the

area, were insufficient to classify all those residents as educationally backward (A.1.R

1973 SC at 505) . Thc Supreme Court in a later case declared that "lack of educational

institutiota and educational aids" might be one factor in educational backwardness of an

area and that "hecause of lack of educational facilities keep them stagnant and they have

neither meaning and values nor awarericss for education" (A.I.K. 1975 SC at 567 State

of IJ.P Vs. I'radip landon).

5.9 Attitude towards Education

l'hcrc scen~s to exist a lack of awarcncss with regal-d to the benefits and

advancement that would accrue in getting educated. Such an attitude has resulted

in several cu~irmunitics developing a lack of seriousness of not an apathy towards

cducatiun. ln,lia whilc declaring her\elf as a \?.elfare state. accepted educational

advancement ;is onc of her prime aiius. This necessitated the aforementioned

sections oi tht. population being persuaded to taking to education. In order to

provide all incct~tiv,: to such i t was dccided to accommodatr: such communities in

the lis,t of hachmard c(~mrnunities. HLII such ;I step was questioned in a court of law

p:lrticl.llarl> u i t t i regal-ci lo thr difticl.ll~! in idetitit'ying such i:ommunities. In state

i I . IJr;t<lip I i~nilon thc Suprem~, ('onrt held that whili: "lack of educational

institutions , I I ~ i.iiucat~.onal aids' might he one Sictor in the educational

backwardnc\s of an area, the court put thc stress on attirudes towards education

thar~ o n ; ibst .~~cc ( ~ t facilities "traditional apathy for education on account of social

and enviro~inicntal conditions of occupational handicaps. (illustrates) educational

backwardness'. (AIR 1975 SC at 567)'.

5.10 Economic Criteria

I tic ( I ~ I C ;itid most popular and widely acclaimed alternative to caste

criterion sttggcstcd is rconolnic criterion. It has according to proponents the

advantage ot eliminating the afflue~it sections among backward classes from the

list of beneliciarics (11' r,eservation policy and also of benefiting the genuinely

poorer section> o t society regardless of caste or religion. lieservation policy in its

present patter11 woulcl only benefit individuals belonging to certain castes o f the

tlindu religit~i~. as thc casle system is peculiar only to the fortner. Hence it ignores

rnc~nbers ol'otlie~. lreligior;, whose socio economic and educational plight is similar

if not \vcirse !lint tl;lckward Classes The court has on several occasions taken

cognizance ot ~li is emcrging opinion However it has refused to grant priority to

s~tch c~~isidci.,itio~is ~it ier over ruling or rejecting all other criterion. The main

reason attsibutcd by the ci,u~-t in isejecting this view is that there can be no shared

traits of ccoii<~mic ilisad\'ont;ige and hence no homogeneity exists for a class to be

dcsignatetl as hack\\ard 0 1 the basis of economic criteria. There is no assurance

that cntit-L, rnciilhefi o f 21 family w o ~ ~ l d be pursuing their traditional occupation

designatetl ; I \ h,~cL~\;u-cl Sl.1~11 \;~ri,ttions in occupation and thereby in income

\\oiil<j in:iht~ I I ~,\~l-c.mel> difticul~ ) n classil')ing a society into backward and

for\vard o n t i l ~ basis { ~ i ' (economic criterion. In Janki I'rasad Parilnoo V State of

Jammu & t i ~ \ h ~ n i r (AIR. 1973 SC' at 941) the court fouttd it erroneous to place

"econoniic i.onsliieratior~ above considerations which go to show whether a

particular class is socially and educaiionally backward".' Neither small cultivators

nor small permissions is a class in the sense of "a homogenous social section ....

with common traits ancl identifiable by .... common attributes" (Ibid at 941).

Instead these are "a~~ifici;il groups" created by the state for the purpose of

receiving thcsc henetits. The nub of the court's difficulty is revealed in its

discomli)rt \vith the notion that ollc cultivator or pensioner might qualify as

backward u l ~ i l e his brol.her with a slightly large holding or a slightly higher

pension woi~ld not (Ibid 941).

The cirurt also held the view that the affluent sections among the backward

clas:ies shouici bc t:ucluded from the henefits of reservation policy. Such members

of backward classes who ar-e advanced socially, economically and educationally

were referred to as "creamy layer". Rut in guaging backwardness economic

criterion alone should not be considered. The social and educational status should

also br conslcieretl In the Mandal cilse the majority opinion pointed out that such

exclusion should not merely be on cconomic grounds ~~t l less economic advancement

was so high ihal i t necessaril:~ meant social advancement. 8

Soni~. , I I 111.2 Jilticlilties that one encounters in inlplcmenting the lueans test

rnay be iiolc<l. IIcal lilcomcs are often suppressed. certificates are often issued

withoiit \ c r i l i ~ ~ i t i ~ ~ ~ . ; i i i i l i:e~.tiliciltcs .!re I'~-eili~ently submitted. I'he court directed

ihc g.o\clnn~~,irl 0 1 I I I L ~ I ; I 1;) :;pecil! 11lc bxsis oi 'cxcI~sion-\h ' l~ct l~el on the basis of

incomc. cxtelit of hi~lillng or othcr\vise-of creamy layers within a period of four

months. I'lie Oilicc b1.ernorandu111 of 1990 (directing the implementation of

Matidal Co~ni~ i i s s io~ i '> recomme~ida~ions) would be operative only subject to such

specilication\ (All< I ' N 3 S(' 477 at i80) ."

Some states like Kerala resorted to delaying tactics in complying to the

Supreme (lorlrt verdict. They remained adamant in their stand that as per the

Kerala State I3i1chwnr-d CLasses (Kcscrvation of appointments of posts in the

services under the State) Act 16 o l 1 4 9 ~ ' ~ passed by the state legislature, there are

no socia11> ;~dva~icecl section in any backward classes who have acquired the

capacity to coiiipccr \vith tbrward classes in the State of Krrala. l lence till the

mernbers 01' the 1 )tt~cl- Hackward ( lasses acquire the capacity to compete with

forward commun~~ies . thcri: is no cluestion of implementing the 'Creamy Layer'

principle among thc ()thcr Back\\arii Classes in the State. There by the Supreme

Court o n its OL\I I ~i~ltiilti\!e dircctcd the High Court of Kel-ala to appoint a

conlmittec to i~ic:itil! the (cream) layers among the Other Backward Classes of

Kerala. 'She t11g11 C't)urt appointcci .I committee under the chairmanship of Justice

K.J Soseph i liet(l.) a t ~ d directed i t IO submit a report to the Supreme Court on or

before 26"' I,chruar) 1'107. ,which \\;IS extended till 1/6/1997 by the Supreme Court

as per- its ci~-cler dated 21'' I;~,bruar.y 1997." The committee received 596

representati~c. .sr~ggi.>tions t i l l 15'" lanuary 1997."

I'he Joseph ~'c)~nn?ission on the basis of its investigation concluded that

thete chisr i~rllici~ciit numbel-s o f 'il.eamq. layer' among the hecli\vard classes of

K~ralti. Oil rlic li,~\i., 0 1 ' data l i~~t i i>l i rd to i t . about the c;istc coni1)ositioti of 78

dep;rrtmcnts. even th(~ugh inadequate. h u n d that several backward castes were

I over represented in tile state: sector. Lack of sufficient data has also rendered the

work of conlniission diflicult as the.! couldn't identit) as to the number of OBC

mcrnbers who set recruited under thc merit quota. 14

The high level committee appointed by the High Court fixed an income ceiling

at Ks. 150,000 and ahove for the purpose of inclusion in 'creamy layer'. The extent of

agricultural ltind ;uid plantation fhr the purpose of inclusion in 'creamy layer' is

detennined h! tdking into consideration the capital value of the land as well as the

income tbr the above crop:;, both for agricultural as well as plantation.

Thc suprct~~e ;~lso stn~ck down the economic criteria fixed by the govel~unent of

Bihar for the identificatiorl of creamy layer. Hihar government included even IAS and

IPS and cithcr central yovemrnent officers as backwards and excluded only those

officers \vho have 1 1 ;i~inu,al inco111c 0 1 10 lakhs and also those drawing a monthly sala~y

of Hs. 10000 - alui owning a house i l l an urban area. In the case of professionals, an

income of l i b . I0 I&hs pcr annum has been lixed as a criterion. It is further provided

that the wite or husband i:; al. least a ZI-aduatc and the fanily owns immovable property

ofthe value o f ; ~ t [cast :!O lakhs."

I h e diitercnt judgements glven by the court with regard to the various

objectives 01 trserv;iti~)n pc,licy ma! he examined here:

5.1 1 Compensation or Reparation

I'hc 111rist \\l~lcl! accepted al-sunicti1 in '~vour reservation policy is that i t

sel-.+,es I ~ I c\pitirc 1 0 1 1I1c a:,: old ~11s~rimin;ition practiced arainst the down ti-odden.

Such practices ha\ sI;~ckened thr development of those classes. Hence as a

recompense or sairilice ]he forward castes has to sacrifice certain benefits to the

deprived. Susticc I'a~rdian in his judgement relies on this theory (AIR 1993 SC

477. 11 at 61 i) a> regards reservatio~l to OBC's and has taken the view that there

can be reset-cation in cscess of 5UU/o of posts. The dismal fact of this view is that it

is not the actual oppressors who gets taxed but the posterity who live in the present

where such l>udal sei ilp s now defunct and extinct. Moreover even Muslims and

Christians arc also ~iiiidc to bear the disadvantage for injustices which it neither

their present or past generation was responsible.

5.12 Proportional Equality

Justicc Mathc~l in Thomas case was of the opinion that reservations are

baseti on proportional equality (AIR 1967 SC 490 at 517-18).16 This is done by

taking into :tccoiint the disadva~~tage suffered and making the distribution

dependent L I ~ O I I p r ( ~ p o r t ~ o ~ . nt'varini~s caste in the population.

This tlieot-y also ha:s disadvantages particularly since it benefits only certain

caste groups and hence ignores the poor anlong forward castes and also of other

religions like lslar~l .~rtd Hinduisnl. Moreover caste cannot be considered a

criterion as i t is a proh~hltzd criteria under thc constitution.

5.13 Distributive .lusticme

Accorti~ng to iliis theory rescjilrces must be distributed equitably to all

classes o f p e o l ~ l ~ ~ I I I V I C , sllould not l1e am> axt ot'discrimination. Dr 'l'hommen in

his opinion r C r l 1 1 [hi?: aspeci thiis "Affirmative action is not inerely

compensator! IUSI ICC. ivli~ch it is but it is also distributive justice seeking to ensure

that commurlil! r c so~~rces are more equitably and justly shared arnong all classes

of crlizens" ( A I R I 9'15 S(' 477 at 69').

5.14 Conclusion

Judicial interLention in rcser\.ation policy was first brought about in 1951

in the C'hampakaln 1)orairajan V State of Madras case. The court's verdict was

side steppetl by elf'ectiny tlie first ainendment to the Indian Constitution. Thereby

several cases pertaining 1.0 reservations were tiled before the various High Courts

and the Suprctnc ('out-1. Verdicts tliat are mutually conflicting and contradictory

were issued by t l ~ c \.arious High C'~)urts and Supreme C o u ~ l subsequently. This

can primarill he :ittributed to the lhct that the Indian constitution has not explicitly

defined the term .-Backward Classes" and the criterion for determining

b, n~ .k wardness , llencc the courts wcrc called upon to engage in a mix of judicial

interpretatioi~ and judicial aetivisiii 10 address this probleril.

I'he greatest coriflict of views and judgements have prevailed as to whether

caste is to he ;I i:l.~tcric~n in determining backwardness. However, a majority of

judgements sterns to hive agreed upon the view that caste alone should not be

considered ;IS the solc criterion in tlie determination of backwardness. In the latest

judgcnirnt I . C . in tlit: Mandal casc. the court while refusing to conduct a new

cetisiis hasc~l o n i:asll:. o~.de.red that ,I fresh evaluation to exclude creamy layer from

the list of Otlicr l3ackward Classes to be done. Thus the courts indirectly applied

the LISC 01 ci.ot!o~~~ti criteria witIit)!~l rejecli~lg the use of caste also as a criterion in

determining hacL\\ardnu:;s. Wlieri tlic go\crnrnent o f Kerala declared to the

Supreme Coui? tllitt ('ri:nl~rly 1.aycr \\as absent among the Other Backward Classes

ol'Kerala. thc Suprcr~ru ('OLII-~ appointed a comtllission to identify the creamy layer

atnong the (0thc.r Hackward Classes The courts also specified the cri terion for

determinlt~g tile creamy 1,iycr too I his was the first time that the court actively

asserted itselt i n this affair

The c o ~ i r i ' , ~ power is confineJ to ensure whether the government has not

transgressed irs po\\cr\ prescribetl n t t h i n the l imi t o f constitutional authorization.

I t has also 801 to rccoi~cilt: the conl l ict ing principles o f equality and compensatory

discriminatior~. It also has the added responsibility to ensure that governmental

schemes works in l i vou r of the intcnded beneficiaries and that its extent or method

o f operation i l ~ ) c \ not unduly impail the rights o f others. A n observation o f the

judiciary's role \ \ i ~u l t I reveal that the co~ i r ts have acted as a check and balance on

the g,overnriicnt's ;iuthorit:y and alscl a h a final arbiter.

1 - I'WO B!.aln~li~ii ' , t~dc~its. C'l~ampaka~n Dorail-ajan and Srinivasan who we!-e refused seats ill tlrc ilredical and engineering colleges respectively on the ground that the quota fixed ibr l%rali~inin\. i e.. tu'o out [if I4 had bcen filled up according to the cotnm~lnal pover~r~~ic~ic ordcr, liled writs ut i i ie~ Article 226 o f the constitittion o f India in June 1950 c l l a l l c~~g in .~ tlie cornnlunal ~ovcl-nlnent order for protection o f their fi~ndamental rights rliidcr Art~cles 15 (1 :I and 29 (1) and PI-ayed to restraitr the state from following the c~immrinal goverr~r~~ent order any longer as i t was based solely on caste and rsligio~i. I lit. U ~ I ~ I - a s governme111 c,,ntended that Article 15 ( I ) must be read along wit11 ot1ic1 x t i c l e s 111 tlnc c~nsti t l~t ioi i . pat?icularly Article 46, bbhich charges the state "to 1)rt1111<1ic ~ l i t l n sjieciill care tllc c~lucation;~l and eco~lomic i~iterests o f the weaker scctiolis i j l t l ir people. and in pal-tic~rlar. of the scheduled castes and scheduled tribes and sinall protect them from social 111;~15ticr arid all for~iis o f exploitation". I t was pointeil out thal ;rl lI iu~~gll Articlc -16 linds a place in tlic Directive 131-inciples o f State j'olicq. ~ i l i I lint e~ilbrce;~blc. I principles laid down ar-e ~nevettlieless f i .~~ ida~~ ie~~ t i i l III ilic goverlliilicc o l t l i i ~ C O L I I ~ ~ ~ ? . and i t shall he tlie d i~ ty o f the state to nppl) rlrcw 11111icil1lcs ill nrakilng I : r \ i i as per Article 37 . The comrnit~r:il go\'ernmcnt order fi\ i~ir pro.)ii~-ti,~~inte scats III ,iifl;'rc~it co~nrntl~~it ies theref(~re. does not violate

any Iilndame~it;rl riglits according to t l ~e i r view. These contentious we~-e rejected by the Suprclne ( ou r l . \\ ir~clr ruled that ihe Directive principles o f State policy under Article 37 are e\prcs\l\ I I I ; I ~ ~ uncnforce;lble by the court and cannot override tlie provisions found in I'art Ill. ~ v l i i c l ~ not \vitlrstanding other provisions. are expressly inlade

enforceable by appr,opr~atr: writs under Article 32.

I n Partha V State ill Mysore the Court stated that the -.Caste classification w i l l be only opeti to cllallenge 11' it can be shown that the criterion adopted fol- de te r~ i~ in ing their backward~ie\s 15 usclcss as test o f backwardness so that the preference would anlount to a preferelrct: OII gro~ll id?. o f Caste alone" (A.1.R 1961 Mys 220 to 230).

' In s h o ~ i the Balajl case seclns to leave intact caste or colnmunal units as the things to be meas~ircd. \vl i i lc confining tile !-ole o f caste as a ~neasuring !rod. However, the failure to tnaki: c lorr the distinctiiln between castes as units and caste, rank as a measure 01. hack\vard~icss put both mses o f caste i n some disrepute and encouraged the no t io~ i that ..('irstc' \YIIS in al l respects eliminated from the selection o f backward classes. S < , l i r tlie ( OLI I~ lias only added to Balaji the notion that caste is a permissible but not a iii:ilidatoi? tneasure o f social backwardness. I t has not said anything about what arc rlre -('l;lssc., u f C i t i ~ c n i " whose backwardness is to be measured. In Chitralchlla L 5t;irc of ' Mysore. the Supreme Court tinds that Balaji established that ( I ) "tllc ( astc ~ I I ;i y o u p o f citizens may be a relevant circumstance in ascertaining their social hacku;~~dliesc~'' and r:? i "it cannot be the sole o r dominant test in that behalf ' . I t t l i e ~ ~ (;) 1ep11di:ites the l l i gh Court's view that "caste i s a necessaly test o f social bech\vardties>" (A.1.R 1964 SC 1823). "We would hasten to make clear that caste is o111> a relev;lnt circumstalice i n ascertaining the backwardness o f a class and there i!, tiothtli$ 111 a ) . which precludes tlie authority concerlied fro111 deter lninirr~ tlie s(1~1a1 backwardliess of a group o f citizens if i t can do so without referencr 1,) c;istc. M'llile this cot111 has not excluded caste from ascertaining the backwar~l i~css of a class o f citi7.ens, i t has not ~nade i t one o f the compell ing i r c ~ ~ ~ i i s t ~ ~ ~ c . i I ) lie authority c ~ ~ n c e r ~ i e d (nay take caste into consideration. .... but i f i t doe5 II~I. 11:. urdcr w i l l not be bed on that account.. ..." (1 A.I.R. 1964 SC at 1833). Subba K;lo .I. t l ~ c l l presents some reflections about the use o f caste units which c o r n p o u ~ ~ ~ l s the a~nhiguities: The important factor to be noticed in Al t ic le 15(4) is that it does ]lot spcak ~rI'cas~.es,, but only speaks o f classes. If the makers o f the constitution intel~ded I,) t;lhc c:i\te:. also as llnlts o f social and educational backwardness. they ,would l ia\e \aid I . . i'houglr i t may be suggested that the wider expression "Classes" i \ ubed a!; tliere are ci j~nmunities without castes, if the intention was to equate clabses \bit11 castes, nothing prevented the 1nakt.l-s o f the co l is t i t~~t ion to use the expl-essioli -'Hach\\;~ld classes or castes". The just a position o f the expression "Backu;~l-il cl;tse\" and " Scllcduled Castes" i n Article 15 (4) also leads to a ~reasollahle ~l i fercl icc that the expt-e5sion "Classes" is not synonyliious with castes. i t may he rlr;it for asccitainitig whether a particular citi7,en or s gvo~lp o f citizens belonz l o a h;~ch\\.liii cl;i\\ ,,I- not. his or thcir caste inlay have solne relevance. but it cannot be e i t l ic l tlic ,,,lc c>r tlii, dimiinant c r~ tc i i on for ascertaining the class to wli icl i he or they lbelo~i: ( \ I R 1')h.t S(' at 1833-33 ). t l e suggests that this restl-icted use o f "Caste" is neccshar! 11, p lc\cnt csploitation $11' these provisions by wel l -o f f sections within I t l I I 1 l i c v a r . I f ' i \ e intel-PI-et the exp~.cssio~i "Classes" as " Castes". !lie ol,jccl ,>I tllu c, l~i \ t~t~l t i i , ) l l w i l l hi. li-~lstrated and tlie people \ tho do not deserve all) ; d \ 1 1 1 i l i 1 1 1 I I i:ct i t to 1 1 1 ~ ehclusion o f those who really deserve it. f h i s :11ro1ii;11> 1, i l l II<>I ,I, r \ c 11; \\it11011t c ,~~ i i ;~ t i~ rg CI:ISS \\'it11 caste. C':~SIC ih 1;iheli. 21s i1111y otic

cjf tlie co~isideratioii to ;i.sccrtain iv l~et l ier a person belongs to a backward class o r not. On the other hand. 11 tlie entire silt) caste by and large, is backward i t [nay be included in tlie sclrrdulcd caste b:i f b l l i ~ \ \ i ~ i g tlie appropriate procedure laid done by the constitutioii ( A I R 1964 SC at 18; 1). With a bow to tlie complexity o f the problem the court concluded ( W ) hat we tri~ctided to emphasize is that under no circutnstance a "Class" call be eclllated to a "C;r>t<' though the caste o f an individual or a group o f individuals may be considered alortg wi th other relevant factors i n putting h i m i n a particular class (A . I .K . I064 SC at 834). Caste in the sense o f rank o r standing [nay be part o l the i i ieasuri~tg rod, cw t c in the sense o f unit cannot he the thing that is ~neasr~red IA.I .K. 1')h.l !iC at 1842)

.4 single p d g e of the Kerala liigli Court in State o f Kelxla V. Jacob Mat l iew had :itruck dobvn the state governnie~it 's order specifying E:zhavas and Muslirns as Backward ('las,es (111 tlie ground that "the predominant if not tlic sole test ( o f social and educa~iitnal backwardness ) that has weighed i n the mind of the state government is tlie test of the caste or c i~n i~t run i ty , and that this is impermissible. Here n o investigation has heen tiiade, or data or materials collected ibr tlie purpose o f enabling the state goverr~ments t80 consider . . . . which particular groups or sections.. . . . . have to be treatcd as backward classei.. . A.1.R 1964 KER 39 at 57 &58). On appeal to a 1)ivislon Herich. respondents uuged that Chitralekha made i t impermissible t o use caste unit\ in specify in!; backwarii classes. I 'he Divis ion Bench declined t o read i t t l iat way. and taking ('liitraleklra wit11 Dalaji found nothing which precludes the conclusion that if tlic wliole or ; I substantial portion o f a caste is socially o r educationally backward. tlier~ tlie nalme o f that caste w i l l be a synibol or synonym for a class o f citizens. who art. socially and ecotiomically backward and thus within tlie ambit o f Article I 5 ( . 4 ) . The I)i\ision Bunch proceeded to restore the reservations for Ezhavas, Muslims iind i .at i t i (:atholics (Mayi~hrisl inan, V and Radliakrislinan: 1965:28).

Although castc atitl co~nn~un i t y arc permissible units their use in detert i~ining tlie backward c lasx r >lands oil a dil'l'ctctit footing than their iise in designating scheduled castes. i n tlie case o f :scheduled c;istes. the caste unit is explicitly authorized by tlie c i~nst i t l~ l ion. atid i ts use is conti l ied to the President and Parliament (Art ic le 341 ). I n the case o f Backward I.:lasses. i t cl?ioys no such explicit constitutional sanction nor is its use sirnilarlq co~if ined to central authorities. Backward classes for tlie purpose o f a particular measitre ma!i be defined by not only by central and state legislatures but by admi~iislrative depan~ner~ts atid possibly even local authorities - agencies whose accoitntahility i s iiiol-c parochial .ind who are more l ikely to share, or at least be responsibc to, local prejudices a ~ l d pressures. Scheduled castes, for al l the vagaries o f tlie definition lprocess, are composcd o f a l imited n~ttnber o f definable groups, already in exisrencr and ibnilin:; a rninotity o f tlie local population. But backward classes make "13 11t1 s ~ ~ c l i cleti~iite group. tor i t i s a category indefinitely expandable. which misl i t i t ic l~tde ;I riinlorrt> .IS well a, ;I tiiitiority.

111 desigti;itirt$ tlic ;cltcduled C;I,IL.\ II~II otily may tlie President and Parlianient use caste as 'I unit hur i t was generail! anticipated tliat they would use caste as the ~na-jor cr i tcr iot~ f t t i l i ~ i o t . Sclietluleil castcs are composed o f "Untouchables" w h o traditioniiIl\ si~l'lcreti ilis;tbilitic\ : t ~ ~ d resti-icted opportunities precisely on tlie grounds I t i ~ r s l t i I I 1 1 r i c t 1 I ' S i~ i ce c;iste a f f i l ia t io t~ is cr~rcially irelevant t o tlie d c t c r t i i t ~ ~ ; r l i ~ ~ ~ i ill i ~ ~ i t o ~ ~ c l i a b i l i i ~ . tile castr i tnit is accepted as an appropl-iate way to i t i t i ~ ~ I i i l l I I I i s 0 b c h i r t i e s s Rltr u l le t i dealing bvitli

~- ~~~ ~ - -~~p~- ~~ -. .-

other bachwaril class?,;. i t is not cleat- that caste in and o f i tself represents the same kind o f barrier an11 soiircc o f disah~lities: therefore i t is not clear that tlie caste unit has the same rclevii~\cc in identifying the backward (Srinivas M N: 1956: 377).

1 The tests lor t letci i i i i i i ing group n~c~nbers l i ip were first given extensive consideratiall by tlie Supwlilt. ('ourt in C l ~ a t t i ~ i t ~ h l i ~ ~ j Vitlialdas Jasain V Moreshwar Parashram (1954. S. C.R. X I 7 ) A l l electioii i 'ommission lhad rejected the nomination papers for a reserved seat si ib~ii i l tetl b:y a M a l ~ a i who had joined the Mahanubhava Panth, a Hindu sect which rcpud~ated the ~n i i l t i p l ~c i t y o f gods and the caste system. Reversing the tribunal, the Siiprelnc Court held that the candidate remained a Mahar. The Supreme Court concluded tliat . . C o ~ i v e r s i ~ ~ l to this sect imports l i t t le beyond an intellectual acceptance o f cel-taln ideological tenets arid does not alter the converts' caste status" (1954 SC'R at 840). I h e Supreme Court held that "if the individual, ..... desires and intends to rctai~r his old social and political ties", and if the old order is tolerant o f the new faith and doe\ no( expel the cc~irvel-t. tlie conversion has no effect. "On the other hand, if the coiivert has: shown b) 111s conduct and dealings that his break from the old order is so co~iipletc and final that l ic 110 longer regards himself as a member o f the old body and there i s i ~ o reconversii~n and readmittance t o the ....... to the old fold ...... (He cannot) c l ; ~ i i n \ t c t np~~ ra l pri\'ilcges and political advantages which are special to the old order" ( 105-1 SCR at R 3 X )

The loss i l t castc tky ~:onvers io~ i theory was ctnployed in Rajagopal V Arumughan (A.I.R. 6 5 ' 10 1 ) A l ier 1115 you t l i f i ~ l conversion to Christianity, candidate Ra.jagopal had i l fcc ted a recon\crsion to Hinduism by a series o f acts clearly amount (ing) to a public declaration o f l i i s pimfessing the Hindu faith" (A.1.R 1969 SC at 107). He had made " a co~nplete public declaration" i n such a way that the change would be known lo tllo>c \\ l ioti i i t migli l interest Therefore, at the time o f the contested electio~l. lie inilispl~rahly met lhc i l i ndu ism" require~nenl. o f the Scheduled Castes Order.

However sincc ciiiivt.r>ioil to C I i r .~>~ i i~ i i i t y lhad divested him o f caste membership, the q~ ies t i o~ l arises whet he^ upon recon\ersion he had again become a member o f the A d i Dravida ('aste and thu:j rcgainrd 111s eligibility to stand for a reserved seat. In these cases. acceptance bq tlie caste was cniployed as guidance o f successful reconversion. In Rajagopal. Ilo\bcver. !he recoi i \ersio~l is conceded the question is whether he regained l i i s caste menibership. The old cases " test for reconversion is transformed into a t a t f i x ciislc meinbership. A>sumiihg \\ithout deciding that re-entry into a caste is possible. the ct)urt finds no e \ ide~ icc that it had occurred. If reentry was possible, i t would bc h\ virtue ot';~ccepta~icc h! tlic caste. In matters affecting the well being 01-

composit i<~n ( i f ' the caste, the castc Itself is the supreme judge. I t was on this principle that a I-~COII\ICII 10 I l i i i~ lui : in i c o ~ i l d I~CCOII~I. 3 ~ i ~ e ~ n b e r o f the caste. if tlie caste itself i s the Supre111c Jiidgc iicc1:pted hi111 21s B fu l l ~n ic~ i iber o f i t (A.I.R. 1969 SC at 109). Here the court f i ) k ~ i i f l l i i~ c \ id t !~~ce 11) i i i t is ty t l i i s req~i i re~nent. The vat.ious acts o f tlie candidate I l ~a l o n i i ~ ~ i i i t e ~ l to this p~ i h l i c declaration that he was a I- i ind~i do liot show that the Ad i Oravidi~s rcadn~itted h im or \tatted to irecognize hini as one o f them. Since l i is a r r ~ i t I 4 ~ 1 i 1)ravida W i ~ i r ~ a n ) "was not perfonned according to tlie rites observed h? n i i . ~ ~ i t > i . ~ s or \hat t a i l \ ' ()\I K. 1969 SC at 110). I t was i io proof o f adinirsioii 11110 l l ic i i l S t C h) " ~ i i ? i ~ i l ~ ~ ' \ o f t l ie caste in general" (A.I.R. 1960 SC at I 10). 'Thcrc \\;I\ i i i ~ c \ ~dei icc that at all? .t;igc 'a l l? htup was taken by ~neinbers of tlie caste i ~ i d i c ~ ~ t i i i g 111:it ( '1%~ c a ~ ~ d i ( l : ~ t i I \\:IS lhcing accepted ;IS ineinbcr of this caste"

~ ~ ~ ~ ~- ~-

([bid). Acccptar~ce hq 111s ilrlmediatc tamily and a feu ~relatives "Cannot be held to be equivele~it to a recognition by the ~~icnibers o f tlie Caste in general" (Ibid).

The cout-t ~Iocs II~II specify what i t ~vould consider adequate evidence of acceptat~ce would a ~pronou~ceinc~it by castc iiignitaries or a i-esolution o f a caste association >,ufficc'? KOI i s tl~et-c ail!/ indication that the caste (Whatever unit is involved ) possess any organs througl~ ivliich it migilt express itself on the question. Unlike the small comn~ctnities involved in the personiil law reconversion cases, Adi-Dravidas are a wide spread cotnposite group. Whatc\'er adequate evidence o f acceptance might be, it is (clear that the i:ourt pl;~ces on the 'reconvert" tlie burden o f proving it. Since the Supreme (:ourt had earlier ruled that the burden o f proof rests on the challenger to disprove ;I candidate's claimed rnc~nbersliip in a group (L.uxman Siddappa Naik V Katti~nani Chandappa Jampanna (A 1.R I968 SC 929). I t appears that conversion, even wlicri lbllr,\red hy reco~tversion. shifi the burden o f proof to tlie candidate.

Rajagopal did not tai-r, long in discharging this burden. Three months after his appeal was discussud hy the S~~plerne (:oktt-t, a cot~fci-ence was held under tlie auspices o f the Kolar Gold Field's Adi .Dravida Scheduled Castes Conference. This conference which Norar~hir. .I. later relerl-ed to a-. Rajagopal's "niagnutn opus" (Rajagopal V Ar~itn~lgliant (111) 107'3 (2') Mys. 1 .. 1 . 240 at 250) attracted t ~ t least a thousand persons, mostly Atli Dravida Hindus, and addressed various questions of interest to scheduled castes. At the confcrence "a relig~ons ceremony was performed ........ . .... It was a "Shuddh' or cleaiiin:: ceremony tu r-ernove tlie stigma of (Rajagopal's) being considered as ;i ('Ill-istian pursuant to the judget~ient of [the blysore High] Court and the Supren~e i.'oltrt and their publication in some news papers and it was not a cereinoilq to coiivcl? liim,, already ;I Hindu into Hinduisni i l lbid at 251). Accordingly, thc conference resolverf to "set right tlie doubt arising in (Rajagopals) election petition, recognix and a lw :~dlnir him to our caste. SI-i S. Rajagopal, who was borti in our castc. htougl~t up ;1111idst us, arid \\ho represellled our caste in Mysore legislature for the past 0-7 year\. \erviiif: efficienlly and honestly" (Ihid at 2 5 3 ) .

As the 1'172 generill eleclions appri~ached. RaJagopal and Arumugham sqitared o f f for another clectcaral contest and anuther round o f litigation. Arumugha~n objected to Rajagop;cl's nom~tiatiun papers on the ground that upon his reconversioli. Rajagopal had nor reohtained Iris membership in the caste. The returriing officer rejected Rajagopal's papers. Arumugliam was duly elected and Rajagopal challenged tlie elccti~>t~. ihc returni~ig lufficers rejection according to the High Court, was "hasty, itnwarranted and erroneous" ( lb i i l at 255). The Adi Dravida conference was "Vox p o p ~ ~ l i . . . . abuntlanl proof that lie belongs to the mainstream o f that comrn~itiity" (Ibid ;it 253) hc \+a!; a memher of'the C'astc. "Without a semblatice o f reasonable douht' ( I hid ;it 255)~

O n ;rppcLll tl ie S~tpreirle Court sce~~rcd oboitt to ire opeii the fitndatnental questio~~ o f tlre relatioir .)I ~ e l t g l ~ ~ i l to caste. A\v;iii. that t l ie col-respondence o f caste and llinduism is i~nperfect. tt ubscrvcs lhat caste identity among Christians, i s "not an infrequent p l i e n ~ ~ ~ ~ i c ~ i o ~ i 111 Soutl~ I l~dia" (Ar~rtn i ig l~ar~i Vs Rajagopal (11) A.1.R 1976 SC 939 at 945) . \\'ltetlici coilrcrt? to Cliri,~ianit) rc~i i i i i i i ~ ~ i e ~ i i b e r s o f a caste ultimately ... . .. . . . 111ii\t ~ I c j ~ t ~ i i i l < ) t i ~IIC L,tr~~ctitre o i IIIC caste mid i t s rules and tegi~lations" ( I bid) Docs cadi. chpcl c . i ~ i \ e i t ~ or does i t t~lc~.ate then1 within its fold? The court suggests that I t ~ l c t ~ i i i I t r e I d i [)I-avidas. There at-e hoth Hir~dus and

C'lrrist~ans .11i<1 inter marriage\ between then, so it seems pl-ima facie that on conversion to (~'hristianity Rajagopal "did not cease to belong to the Adi Dravida Caste"(,k.lll. 1'176 Ac 939 at 947).

l l l e coun cliaracterises a caste as "a social combination o f persolis governed by its rulcs and regul;~tioni" whicli ~iecd not be written or forlilalised (A.I.R. 1976 S.C. 939 at 948). The casts may, "if i t s rules and regulations so provide, admit new members just as i t may expel an existins member" (Ibid). It may specify particular rites or ceren~~~~r ies fbr read mission wt~uld be tlie acceptance o f the person "by .... . . . . . the other members of (he caste" (Ibid). The court was iiiost impressed by the 1968 conference, which had been held with the object, inter alia o f "readmitting (Rajagupal) ... into ):he fold o f Adi Dravida caste and not only was a ptlrificatory ceremon) perfhnncd .... with a \ icw to clearing the doubt which had been cast upon I i ih mcr~ihership. . By the dccis~on of this Court (In Rajagopal I ) but an address .... was also presented to (Rajagopal) .... felicitating him on this occasion" (A.1.R 1976 S C' 9 I 9 I ) ['he court also fi~urtd persuasive his laying the foundation stone for construction of-a new, wall o f a Hindu temple, and his honorific participation in temple ceremonies was "strongly indicative of tlie fact that he was accepted and treated as a ~iicmber of thc Ad1 Dravida cotnnii~nity" (A I R 1976 S C 939 at 950).

It wah earller established that Rajagopal had ireconverted to Hinduism and Uridisputedly I l le l the Hinduisnt requirement of the Scheduled caste order; the only questioli was o r his ci~ste rnelnber5hip. But since the court indicated its awareness that Christians wtre accepted as members of the Adi Dravida Caste, it i s not clear what reniaincd to be proved with this evidence. Its emphasis on Hindu ceremony suggest that t l ie court was interested in caste acceptance o f him As a Hindu-for if he were acccptc(l a\ a int:niber o f caste but not viewed as a Hindu. the problem o f Hinduism would hc unavoidable (Cialanter : 1984: 190-203).

5 In l<a~~i;thr~\l~na S~ngli V State of Mysol-e. the tl igh court struck down a scheme in which -15% ol'the seats in teclr~~ical and professional colleges were reserved for 164 conitnullities (A IR 1960 Mys 338) . 111 order to decide whether the reservations were constiti~tional. the tligh court u~idcnook to ascertain whether the beneficiaries of this scheme Mere "jocially and educatioiially backward classes envisaged in Article 1 S(4) ...." (AIR IYhO M b s at 346). To qualify as such. they innst have been selected by some "intclligihlc principle'. designed to fi~~-tIrer "the policy and object o f the constitution ... to ameliorate t l ie condition o f tl ie ically backward classes AIR 1960 Mys at 347). Finding that co1n1111111itie:i with l~ ig l i percentages of literacy were included, the c o u ~ i struck down that "lirer;icy alone is llic o111y possible test for determining educationally backward clas:.es" (.41111960 Mys :It 348).

The S U ~ I ~ I I I ~ ('our1 e~~cou~itered t l x questio11 of edncational backwardness in Balaji V Statt: 01' My:,ore (AIR 1963 S(' (4')) I'lie court thund i t '-doubtful if the test of the average ..i,ltlie stude~~t pol:~ulatioti III the last three t ( i ~ l 1 School classes is appropriate in detcr ln i~~ i~ ig tlic educational backu~;irdness" (AIR 1963 SC at 660). But it did not press tlre nierlts oi'tlii. s t i~~ ie~ i t s popl~lat ioi~ as a inleasure, but dircclcd i ts concern to the states cut off pl~int l'tic Mysc1l-c s c l i c ~ ~ ~ r ~ ilicli~ded as hackwar~.i a l l communities whose cnrol~nciit I I c i ~ l t ~ o r ~ ~ l l o i ~ t the itnte ;l\crage o f 6.9 h i ~ h school stndc~ith 1'" ~Iiouran(l o l pop~~l;~rlcr~i Assu~iiing ellioln~ent to he a rational test o f

~k . . c I t l ic t asked I t 1 1 i t \bas Ic$ititiiatc t treat castes and

-~ ~~ ~ ~~. -- -- ~

c o n i ~ n u ~ i ~ t ~ c z . \ % l i 1 ~ 1 1 :Ire just b e tlie state avel-age as educationally backward classes?" It irnswered that i t is i ~ o t only com~nunities "well below" the state average ilia) be deeiiied backward. (A IR 1963 SC ;at 660).

Reser-valic~tis ill adrn~s:;ions to Medical colleges in favour o f residents o f backward at-ea slatted t i ] cunle before High cour~s ill northel-n India in the late 1960s. The judicial rcspon.;e was mixed. The .lammu and Kaslitnir court al lowed reservation of places tor rcsidentr of Ladakh (Sarclool S i ~ ~ g l i V Principal, Medical college, A I R 1970 J & K 4s) and (lrle bench o f thc Allaliabad High Court al lowed I-eservations for candidate5 (I-cinr rural areas, hill arcas and ilttarakhand division because the residents o f these area:, undeniably fanned a "socially and educationally backward class" in relation l o medical education (Subhitsh Cha~idra V state o f U P A I R 1973 A l l 295,297).

However .inother Allahahad bench found these reservations troubling on tlie ground !hat tlie gc~bet~nn~ent had failed altogether to indicate the basis for regarding these lasses as socially backward and its criteria fol- f inding tliern educationally backward were insutticicnt. f l i e court appe;ircd wi l l ing to take judici;rl notice that Uttarakhand was so backward that tlie designatiun o f its residents as a socially and educationally backward class wa\ jusr:ified, but i t strtrck down tlie rural and h i l l areas reservations (Dileep K u ~ i i a r V Government of [I' A I R 1973 A l l 592). S i~n i lar ly in GUI-inder Pal Singh V state o f I'unjab ( A I R lu74 P & t1 125), reservations for candidates from "backward area wer-e sl:ruck down ,111 the ground that such preference oo residential grounds did riot distinguish between ( a ) ~i i i l l ionaire and a pauper l iv ing in such areas" and thus did not direcl benefits l o "the really deserving residents o f such areas"". (AIR 1974 P & 11 127).

The p o p i t l i ~ ~ ~ o t i o f ;I loc;~lity o r a regiotr may form a backward class. But as the area gets large^. t i \\ill heca~ne increasingly di f l icul t to show tliat its inhabitants display sufticient l i ,~n~ugenciry to qualify as a class. As in the use o f c o ~ n m ~ t n a l units, some over i~ ic lu \ ic )~ i 1s unavoidable-a fc\\ who are not personally backward may be i~~c luded . Hiit geographimcal classes ilia) be even Inore susceptible to over inclusion than co1ii111111iitit:s. Mihile the inhahitants o f geographical areas do share similar cond i t~o~ i> of bad road:,. isolation. lack o f sc l~oo l s etc. they may di f fer sharply in their resources .itid in their capacity fcit c o p i ~ ~ g wi th these shared problenis. Extending benefits tliat requires prior t r a i ~ i i ~ i s and advantages ( l ike medical admissions) to gcogl-apliical classes would one miglit expect. lead to tlie e~i joynient o f these benefits by tlie mo i l advantaged within tlie heneliciary gl-oup. tliose who are personally least socially and cd~~catiotl;~ll!, backward.

Geograplr? car) be used in con.junctio~l with others Facrors as wel l as i~~dependent ly; and i t c a n he used tu disqualify a s \\.ell as to qualify for benefits. List o f el igible group\ arc i\picaIlq based on area ancl contain area restrictions. I..ocation may be used not 0 1 1 1 10 brlec( berteticiaries but to ,.creel1 otl lrrwise eligible beneliciaries analogous to thc ~ I ~ C ~ I I I C ~ ~ ~ ~ l - o f l pr i~vis ions. Oc~\er l i~nent !nay i~npose area restrictions on the e~i, joy~iient ( ~ t ' certain benefits. Thc Suprenie Court held that i t i3 perniissible for the state to ~ i i ~ , i;i\,our;~hle tax trcatliiclit to i i i c o ~ ~ i c o f scheduled trihcs earned wi th in specilietl r ~ ~ h a l r e I to v i l i l i i l l tI1;it helicficiirl treatnrerit c1f' i l lcome earned i l I I ( I 1 ' i>f i icer V l<?i111>;1i A IK 1976. S(' 670 (NIC) (Galantel.: 1984: 223-;O(l).

6 This irigr;~ittcd ap;~tli> principle had becn elaborated by a constitutional bench in Janttki I'taiad. ;I\ ;r rest which teem to measure both tlie social attd educational backwarilt~ess relzl-1-ed to in A r t ~ c l c 15(4) (Janaki Prasad Parimoo V State o f Jatn~nu and Kasliniir A I K 197:; SC 930 at i)38). The court remarks that tlie spread o f facilities for educ: i t i i~~~ into r~ural areas attd growing sector o f the village population. which has embrace(l c d u ~ a t ~ o t i as a mealts of social advancement. However. there iremains "sectors r j f the p o p ~ ~ l a ~ i o n which show extreme apathy towards education due to age- old cus t i~n~s and liabits o f l iv ing fostered by poverty, ignorance, superstitions and prolongctl i o c a1 uppression" ( Ih~d) . While other sectors in the rural areas deserve encouragclnen; bq the state thesc apathetic sections "require to be goaded into the social strcani by positive efforts o f the state" (A IR 1975 SC 930 at 938) Kerala adopted ii "nieans cum comntnl~i ty" test aftet- the Ku~nara Pillai Cotnmission concluded that the heritage o f disabilities did not seriously impinge on the wel l o f f ra~nil ieb ~ ~ i t l i i ~ ~ thc listed commutiities. Medical College seats were reserved for tlie members o f listcd cotnlnunities whose annual family inco~rte was Rs. 6000 (The Kumara f'illai C c ~ ~ ~ ~ t n i s s i o n had recommended an income ceil ing o f Rs. 4200 but the state govcrtir1lcnr raised it t o Rs. 0000 when pu t t i t~g the recommendation into effect). This sclivmc has challenged from two directions by an applicant who met the income test but Ma\ rtot a t i ic~nber o f o ~ t e o f the listed co~nmunities, and by members of the listed cv~ttlt l i tnit ies w i th higher incu~ne. The High court rejected tlie claim of the l ow income 11011-tn<.-mber on the ground that i t was open to the state to give caste some rele\ancc ;<Ions w i th income in effect, to apply thc income test only to tnembet-s o f certain carte ( I . a ~ l a ('ltacko V . State o f Kerala A IR 1967 Ker 124).

A single ju<lge t ~ l ' t l t e Kerala High Court Struck down the income limitation o f o n the groutid tliat tlic absence of povert? cannot be the sole determinant o f tlie absence o f social anti cd~~ca t iona l backwardricss (Shatneen V Medical College, AIR 1975 Kel-a 13 1 at 1.78) Th,: cilr l t i also finds thc Rs. 6000 l imit arbitrary i t i s i~nproperly low, fol- i t would c\clude a ih in i ly w i t h two wage earners in class I V goverr~metit employment, and i t i s lcss that1 ivould enable ;i l a~n i l y to suppo~t a chi ld i n Medical College (Ibid). On appeal a 1)iviqion Bench had no dift iculty in t inding that the Inore prosperous members ill backnard communities might be excluded on the ground that they were lacking t l ~ c reiluihite social back\\ardness to entitle them of preferential treatment (State of ket-al;t \ Krishna Kutnari AIR. 1976 Ker 54 at 60).

A~ t i ong ~ I IC ad;;~nt;~ge:; ascribed I<, income cut of f is tliat, by excluding tlie wel l off within t l i ~ . hack\c.ard cornrnunities, they ensure that preferences go to the really disadva11t;lged ant1 deserving w i t l i ~ n these communities. Just how inany are actually excluded depe~~ds. ~ ~ t c o u r s e , on w l~c re the line is drawn and on how tightly the l ist is admitiistcral. i lsuall) the l imits 11;ive been fixed so high that only a s~na l l pot i ion o f these c o t ~ i ~ i r u i l i l i e ~ \vould be e\clu(led. An extreme example would be Kerala's l im i t o l K s 6000 (later 10000) annual income. w l i i c l ~ probably eliininale no inore than I% i n the populous I-\ha\;1 communi ly and even in othcr como~unit ies (The Kitnara Pi l la i

. . Co~i i~ t i i t t t ic e \ t i ~~ i i t i cd tliat its o~- tg~ t la l cellill:: o f RS. 4200 would exclutle about 4% o f the F r l i ; r \a . b luc l i~ i is ;~nd Lat i t i (Zatholics (KPCR Appendix VII I ) .

In ci,ns~(Ico~i; tlic \ i i~ t , lh i l i ty c ~ f C C ~ ~ I ~ O I ~ I ~ C test. wc s11~101d ~dis t i~~guis l i \vl~at \ve n ~ i g l ~ t call 1higlii.r c ~ l i e i i ~ i l pl-efei-ences t i \ l i i c l ~ ~eq~t i l -e i h~ their utilization a degree o f priol- succc\i aiicl 5,111tc i ~ i i ~ t c l i i ~ t g reioiit-LC)) fi<1111 \\li i it \ \e itiiglit call early stage refel-elices

~- ~ ~ p ~ ~ - ~ - ~ p .~ .-

whicli C A I ~ he 11t111/ed without prior succcss or matching ~resources. Resel-vations ill medical college admissions and higher governlnent posts are examples o f highel- echelon p~ckrenccs Obviously. t l ic distinction is not absolute. but a matter of degree. While ecoiion~ic tcstb may be suitable for distributing fee concessions o f free lunches to school child re^^. i t is not clear tliat the) are well adapted for distributing highel- echelon prefel-ences. Since sornc dcgree o f pr ior success i s required even to entel- the cornpetiti<iii t i 1 1 medical colleges of high posts, i t is not wit l i rare exception, tlie most destitute who w i l l 11ti1i;:e these PI-eferences. Thus an economic ceiling for such higher echelon prelercnces \vould have to be set fairly high in order to encompass a sigr~i f icar~t number ~ ) f potential competitors (Galanter : 1984: 292-328).

7 Justicc S i ~ w a ~ ~ t iihser\'ed that tlie poor are to be found in al l castes and communities. But thel-e nl-e \ariation:; among the different sections o f the people in the nature and dcgree o f econolnic bai:kwardncss, and its causes and effects. Among the higher castes economic back\zardne!is. On tlie other hand, among the lower castes, their social backwardness i s tlic cause o f their educational and econo~nic backwardness ( A I R 1993 SC 477 ill 657). t l c also pointed out that i f poverty alone is made tlie test then the socially arld cducati\~nii l ly adva~ l ce~ l sectioris '-will capture" al l posts in the reset-ved quota, and th;lt the s ~ ~ c ~ a l l v and educationally backward classes would be left h igh and dry. The i~lajol- ity upinion also rejected the view that Other Backward Classes should be situated si~i i i lar iy to the scheduled castes and the scheduled tribes for qualifying as backward classri. ;is A~t ic : lc 16(4) does not expressly refer to the scheduled castes and scheduled tribes (A IR 1993, SC 477 at 560).

8 To empI i ;~s i~c {he polnt the op i n i o~ i gave the illustration o f a carpenter belonging t o a backward class and e a i n i ~ ~ g a high s u ~ i i in the Middle East. I t also noted tliat whi le an inco~ne 01 Ks :36000 per arinulii may not bc much in a city l ike Bombay, i t would be a I ~ a ~ i d s o ~ ~ ~ e a ~ i i o ~ ~ n t any where in i-111;rl India, and tliat agricultural income was d i f t icu l t to ascert;~ili. . I twan Reddy J. stated that when a ~ n e ~ i i b e r at' backward class became an IAS or 11'5 of ' l icr~. his social statuh increased. and that in such a situation i t was but logical that hi> c l i i l d~en should not he given the benefit o f reservation. Justice Tho~nnian in Ill\ dissent preferred the adoption o f the means test to remove the creamy layers fro111 thr. backward classes ( A I R 1993 SC 477 at 699). Kuld ip Singh. J, in his ,judgement observed: I t1ierefo1-e. hold that means test is imperative to skim o f f t l ie a f f l u c ~ ~ r ,ccti~,~~s 111 t l i r backward classes' ( A I R 1993 SC 477 at 71 8). Saliai J, stated that apart froni i nc i~me test. prov is io~ i sliould be made that wards of those persons o f backward classes \ r l i <~ achieved a p;lnicular status in society, either political, social or economii i>r wliosc pal-ents we!-e ill the higher services s l io i~ ld be precluded from the benefit5 r~lreser\at ion (:AIR 1993 SC 477 at 759).

U The 1ead111g ~ L I ~ ~ L ~ I I I C I I ~ ill Ma~ l i l a i casc stated that in ct :~rain services merit alone counts ~ I I I ~ t l i i ~ t 11 \\c)111d not be adv~sable to provide I-eservatio~~s. The c o i ~ ~ t also stated the l b l l ~ > \ i . ~ ~ i g 21, bclng excluded ii-0111 rcsel-vations ( I ) Defence services i n c l u d i ~ ~ g al l tecl111ic;11 i)c)st\ ~ I I I cscluding c i v ~ l i a n p~)sts (2) a l l tec l~~ i i ca l posts conce~ved w i t l i rcsearcl~ :%lid n a n a ~ z ~ ~ i e n t i n c l t ~ d ~ n g those connectcd wit l i a to~ i i ic energy, space 1rese;rl-ch ;ind cstah l~s l i~ne~i ts engaged in production of defense eqoipments (3) Teaching post:, 0 1 p~o lks ' jors (4) 1)ost in supel- specialties ( 5 ) Posts o f pi lots o f A i r 1 i i 1 I I I I i r l i i . I'he l i i r i t \bas clal-ified. i s lrot exl~austive but illustrative.

Tl ic 5itprcme court also gave the following directions:

a) l l i c (ruvt of ' I~ldia, the statc r,uvet-nlncnts and the union territories should within f011r ~ i ion th \ 1'1roin the date o f j l~dgelnent constitute a permanent body for et l te i~t :~ini~~g. examining atid reconilnending upon requests for inclusion and c o ~ ~ ~ p l a i n t s of over inclusion ;ind under inclusion in the list o f other backward clasxh. 7'11e advise tendered b! s l ~ c l ~ body w i l l ordinarily be binding.

b) Within l iw r months from I611 1119')2 (date o f the judgement) the government o f India shall specify the basis. apply the relevant and requisite socio- economic critcria to excludc arty sociall) adva~lced persons1 sections (creamy layers) f rom the i ~ t l l e r backward classes. r h e implenlentation o f the Off ice Memorandum dated 13 August 1990 s l ~a l l be silbjrci to such exclusion (this direction shall not apply to itate\ where rcservations in fa\our o f backward classes are already in operation). Sucll ctatcs sliall. however. e\olve a separate criteria to exclude creamy layers within a pcriod o f six months.

The Oftice Me~~ io l andu ln dated 25"' September 1991 which gave an additional reservatii~~i o f lo0/" in favour o f the cc:ono~nically backward sections o f people not covered by the office riiem<~randum o f 1990 \\:is Ileld invalid (Sivaramayy;~, B: 223-237).

lo Kcrala Act I 6 o l 109!, among otlier things provides for continuance o f the existing system o l rescrvatic~iis provided ilr I'art II of the Kerala State and Subordinate Services Rules I058 f i x appointments ill the state government, public i~ndertakings and autoriomoils bodies for the backward classes o f citizens in he state o f Kerala. In the Act 16 of 1095. i t i s stlilted that the \aid Act was passed after taking into consideration the vari~rtis reports and materials cc~llected by various committees constituted by the state legidative assembly mentioncil in the preamble to the said act and came to the concl~lsioti tliar backward classcs of citizens in the state o f Kerala are sti l l not adequatel! represented in the scr\.iccs under the state i n proportion to their population and hence decided to cc~ntinue a\ such. tlie existing system o f reservation embodied in the statutc,s! rules rule:. Ill to 17 o f Pal l II Kerala State and subordinate services Rules 1958 tiamcd b) thc stale goveslllilcilt under Article 509 o f the Constitution o f India (Report (11' High ILevcl Committee appointed t o identify the 'creamy layer'. Among the designated othcr hacku;rrd classes. 111 thc state o f Kerala (pp : 2-103).

I I I'ursuant t ~ , the Supreme Court i ~ i ~ t ~ f i c a t i o n No: RWP(C) 930190 dated 4"' December 1996, the ('hairmati noli i i~lated the fi)llowing persons from different walks o f l i fe as Member o f t he l i i g l i level committee: 0. C. Vincent I A S (Ktd District Collector) Sri. K . P. M o l ~ a m ~ n e d (Advocate) I( .4i\anvitidakslia Menon ( K t d District and Sessions .ludge). h ,AsI ioka~~ (Retd. Directo~ of Public Relations). The state govt. also direct Thonias Matlie\\ IAS . a serving ol l icer in the state service to f i~nct ion as secretary of the said l l i g l i levcl cc~mnlittec as per their order G.O.(Rt) No: 10189/96/GAD dated 19"' l )ece~lthci 1006.

I ? The \tare g(lvel-nlilent was a l s ~ ~ i11k11.1ned about the terms of reference and the coin~i i i t tec lhad 1et~11cs~e~1 the111 I,, l ' o ~ \ \ i ~ r d t l i e i ~ s~lggestionslt-eprese~iti~tiotis, if any. in t l ie iliatter t tlic .onimirtee ii IIIL.) are intel-csted i n tllc iiiatter. But the state govcrllnlcltt did ~liil I I r c i t ~ i o i I sl~ggestions even thougli the chief c i r 1 I t i i I I I clz~ted 13/111997 requested tlie committee to

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extend tlic tlrnc l i 1 1 making t h e ~ ~ i ~ ~ ~ g e s t i o i ~ s ill the matter which was granted by the chairman i ~ t t l l e c~~mmit te t : .

Many i ~ f r l ~ e rrpat~izations o f thc backward classes had represented before the comniittec t l~a t there are rlo advnnccd sections in any backward classes o f citizens in the state wlio have ac~juired the ci~pacity to compete with forward classes and tl iey reiterated the ahobe starid at tlie t i~nc. t~ fpersonal liearing also.

But some o f the organizations a ~ ~ d individuals supporting the imple~ne~i ta t ion o f the creamy layer's pl-inciple had statcd tliat tlie exclusion o f creamy layer among tlie 'other backward classes' in the state o f Kerala as declared by the Hon'ble Supreme Court in 'Mandal case' as suclr wab not considered in its correct perspective and spirit while passing Act 16 o f 1995. m e n t h o ~ ~ g l i some o f the members o f tlie subject committee and legislative assen~hly had pointed out the decisions o f tlie Hon'ble Supreme ('ourt in 'blandal casc' e ~ l d insisted tri give the benetit o f reservations to tlie poorer bections t ~ l ' the backw;~rd i-omtnnnities. Some o f the ~nembers made even suggestions and amendments to section 3 o f tlie said bill in the l ight o f the decision o f the Hon'hle Supreme C'ourt i n ' M a ~ ~ d a l Case' judgement.

In some o l the representations received hy tlie committee from different organizations and individuals and pressed befol-e tlie committee at the tilne o f personal liearing, tlie declaration made hq the State Legiblative Asse~nbly in the sectlon 3 o f the Kerala A c t o f 1095 to tlie effect ihat tliel-e are no socially advanced section in any backward classes of citizens in tlie state who have acquired the capacity to compete w i th the forward classes. has to be accepted ;IS f inal and binding on the H igh Level committee. I t is also stated tliat ~t i:i wi thin the legislative competence o f the state t o pass such an enactmen1 and l ie~ icc there wah no justification for the Hon'ble supreme court t o appoint all! co1111nitLee to prescl-iheil guide lines to identify the 'creamy layer' as far as the state (>fKcrala i s concerned.

But on tlic other hand i t is contended hy some other organisations before the H i g h Level Colnmittee that tlie f i le produced hefore the committee by tlie state government w i l l not disclose that there is all? facti~al basis collected o r obtained by the state g o v c r ~ i n i e ~ ~ t to io lne to the conclusl i~n that al l tlie members o f the backward classes o f citizens ill the state art: sociall) and educationally backward and hence they are not able to co~nplete with the ibrward classes ofcit izens. I t is also contended tliat no socio -econoniic surj'e) was conducted 13! tlie state government t o come t o tliat conclusion. (Ihid).

13 I t can he seen that either ihe 409.3 \tatutory reservation provided for a l l the backward classes o l ' c ~ t i t c l ~ b put together llncl hce~ i complied with or i n the alternative, some of tlie hackuard clahscs ( ~ f c i t i~e115 uure ;ihle to compete wi th the forwal-d classes o f citircnb III getting appointments ill public services and as a matter o f fact, tliey got sucli appoi~itnir l i ts also. l inder stii.11 cil-cumstances, i t is not ful ly just i f ied to contend that 11o11c o f t l ~ t III~III~~I-S of tlie hackwacd classes in the stare has attailled the capacity to competc with tlic fol-ward classe, III public services as far as the state o f Kerala is conccrnccl. illid the? also obtainetl sr~cl l nppoi~ i t~ i ients in government services on merit.

It i s alsil 5131ed helbl-e tliis colllrrilttec t l ~a t the inadequate representation o f other bachi\nrd classc\ 111 g(,ve~-nmciit \ I I \ icch. i f any. cannot be attributed due to lack of

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qualified applicants from t h e . ~ communities. Rut k o m the various rank lists publisheil hq !he Kerxla Public Scrvice Comtnission and produced before this H igh Level ( ' i ~ ~ n n ~ i t t c e . it can be sccn tliat thel-e are sufficient qualified candidates who applied t i lr appoinlments in ptrblic ,enices arid included in the rank lists f rom among the other- backward cotn~nt~ni t ies i t1 tlie state also, practically for al l categories of posts for whicl i the p ~ ~ h l i c service cotnn~issioli had invited applications from the public. I t can be seen titat i~nc l t~~ding the backward class candidates, they have advised 68893 candidates excluding the special recruitment candidates under rule 17 A o f the rules after observing tllc rules o f rescr\ation and rotation under Rules 14 and 15 o f the K.S & SS Rules IOSII and the schedule annexed therein, 50% o f vacancy shall be filled up by candidates from the open competition, which works out to 34447. But the commissiori had adviried only 34276 candidates in that category. Even among the 34276 candidates so :advised, there may bc candidates belonging to the backward class ot citizens a l \ o So also. the qervice co~nmission had advised 29346 candidates belonging to the backward classe\ during the said period as against the statutory requirement o f 40% which work, out to only 27557 candidates. This is for a period o f f ive ycars. Even if the statutor) reservation in favour o f any backward class is not satisfied. or thcre is over representation tlie same w i l l not be a justification for g iv ing the henclits ni rcscr\.nlion undei- ,\ l l icle 16(4) in favour o f the affluent part o f the backward classes \ i r , persons included in the 'creamy layer' i n the l ight o f the judgement o f the Hon'hle Supre~nc Court in 'Mandal case'.

Taking illto considcrat~on the great percentage o f population o f the backward classes o f people in the state. there is no basis to conclude that all these job seekers are from forward comrnunitirs alone. Therefore. there is absolutely no justification for the backward classes o f citizens to contend that there will be no suf ic ient qualif ied persons l i l r c . r n l ~ l o > ~ ~ ~ c t i t in gover t i~~ lent services from among them.

Thereforc. the qucstiim o f want o f sufficient qualified hands for any post in govern~i~ent serviccs d~td not norm:illy arise as for as the Kerala state is concerned. Moreover in the 11g111 o f the dcc~sion of the Hon'ble Supreme Court in lndira Sawhne) ' \ case rcit.rt-cd to earliet the question o f giv ing the benefit o f resel-vation under AI-ticle 16(4) to ;In individual 01- 21-oup of persons included among the 'creamy layers' did no arise at al l under any circitmstances. There is no exemption or relaxation granted b!, the tlonorable Supren~c Court in tlie matter o f implementation o f the 'creamy l;ryer' pr i t ic~p le among the other backward classes o f citizens on any special ground or reason I lierefbre, the colnnlittee finds no substance in the said contention also.

In respect 111 38 depa~t~nents, tlicre i s over representation for most of the backward (:lasses and in respect o f 240 dep;~t~~t icntsl i~ist i t~~t io~is/orgat i izat ions there is sufficient and more reprebentation for menihets i>l'thc backward communities put together either on ~ne r i t r 1 tlie basis o f p r i ~ ~ c ~ p l e s o f reset-vations made for the backward c:omtn~tnitirs undet tlie Kerala Stzrtc iubot-dinate. Services rules 1958. Therefore, the backward comtnu~iit ies are not li~ll) col-rect in stating that in case the principle o f 'creanir la! c r i ' is i~iiplemented. tlie xtatutory benefits o f reservations already given t o the rncmhel-3 o l t h e ,)tIic.r Rack~knl-ii ( ' i~ti i tnunit ies wc>ttld be completely lost. The nest contentioli r;tiscd h! some o f thc o~i.a~iizations oti behalf o f the backward classes of citizens ;~rt, 1101 ; i \ a~ l ;~h le for ad\ it:<, :111d i l p p ~ i ~ i t ~ i i e t i t s ill govertllnent services, wards r ~ f these ~)CI%IIIS e\c lr~dcd hy appl! ills 1ltc l~ri irci() lc (11 'creamy layer' sli:ill he allowed

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to hc ; ~ i l \ ~sed by the public ser\icc comniission and appoint them in government iervices 3150 catiiiot be accepted in the l ight o f definite and categoric findings o f the Honorable Supretne Court on 'cl-eatiiy layer' principle in their decision in the 'Matidal icase' l lndcr no circun~stances, tlic l ionourable Supreme C o t ~ n permitted to continue to confki the henetit ot' reservation under Art ic le 16(4) o f the constitution in favoctr o f an affluent part anlong the backward class of citizens and give them the benefit o f reseruati<~ti in goveriiinctit services. In so long as the above decision stands good and bindil ig on al l persons. there is absolutely n o scope to accept such a request made by some o f tlie organirations before t h i committee. We totally reject the above request tnade by those orgaliirations.

There is ncl justification to presuine that a l l those students and j o b seekers belong to the catcgory of ihrhard classes alone, especially when the population o f the other backward classes ot'citirens in tlie State o f Kerala is more than 68%. Therefore, it is only reahoiiablc to presume that aniong the students wl io are studying for various courses atid perbons who seek employment i n various government departments there are sufficietit nuinber o f students and j o b seekers f rom the other backward classes. I n tlic light of the abovc facts, i t cannot be said that there would be no qualif ied hands from tlic backward c1as:jes available for tlie appointment in the services under the gavernmnit in case tlie principle ot 'creamy layer' is impleinented.

111 case tlic (tatt. government inakes any further classifications o f any backward class1 classes as .inore or rnost backward class1 classes' o f citizens on the basis o f a socio- economic survey. i t is open for the state governinent to exclude them froin the purview of' the .crratnq layer' principle, strictly in accordance wi th the direction o f the Honorable Supretne ('ourt i t1 the 'Matidal Case' judgement.

The incoti~e:i*.t.alth tcst prescribed hq tlre Govemiiient o f India ill the Schedule attached as per their uttice me~n<,randuin dated 8"' September 1993 for identi@ing the 'creamy layer' is a gross anlrlial incon~e ol' Rs. 1 1;ihh ur above. In that niemoi-anduin itself it had been specifically staled that the income criteria in tenns o f ntpee wi l l be inodified taking into account thc cliangc in the d u e o f n io t lq in evely three years. It 1s also provided that if the situation. howcver, so delirands the it~tetregnum may be less. l h e liinit prescribed by the govemnieiit 111. India i s accepted by tlir t io~l 'b le Supreme Cotirt in their decision in Asholi Kumar rhakur v State o f Hihar acid otlicrs (AIR. 1995. SCC: 403) (Report o f submitted by thr Higli level (:onimittee appointed to identi@ the 'crea~iiy layer'. Anlong the designated other Rackward Classes in the State o f Kerala pp 2.3.6-10. 13.14.16.17.19.22(A), 22(B), 25, 27.28.30. 3.1. 36. 48. 50).

I I With tlie inaterial f i~rnished by the government except in the 38 departments/ o~~:!aiiizatioii~ ;111d i t~~t i t l i t ions, i t C ~ I ~ I I O ~ be ascei-tained whether a member o f the backward class had t)htained the appointment in Governmel~t Services on the basis o f his inerit ill tile selection fi-oin ope11 coinpetitioii candidates or on the basis o f rank that lie obtained in the ranked l is t pi-epi~ied by tile public service comtnission on the basis o f thc resel\atiot~s pl-o\ided k11- ha~,k~\.ard classes under the Kerala State and Subordinate Services ilu1e.i 1958.

In rcspwt of i X depi~inti~c.iit:, 01 i i is t i t t i t io~~s ii~d orgaiiizations then: is wet-rcpt-esentation in respect \,f ii1,111\ o f tlic backward c~~i i i tn t~ i r i t ies i n c l u d i ~ ~ g EzhavadTl~iyya Cominuiiity. Musliin i o ~ ~ i t i ~ ~ ~ t ~ i t y . I : i t i l l ( ' a t l i o l i c iA~~g lo Indian coiiiinutiit). Nadal- Coinmunity.

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Schedule ('a5tcs ~c,~lv~ertc.d to (:hristiatiity. Visliwakara~lia community. Dlieevara c~m~ i lu t i i t v and other comtnunities in various departments.

I t i s not p<,ssibie to uime ro a delirille conclusion wllether or not the backward class o f citizens ill tile state are :given tlie benefits o f the statutory reservation provided for thern 11nder the Kzra'm State and subordinate service rules in those departments1 organizations in the scrrvices under the state. In the absence o f necessary data made available to the high level colnrnittee by the state government regarding the persons selected and appointed on the basih o f met-it from among the members o f the backward classes o f comnnlnities from opcn co~npetition and those persons among other backwal-d classes appointed in senices after giving them the benefit o f reservation prescribed under the rules no tinial conclusion can be arrived at and say whether the statutov reservation provided for each o f the backward comlnunity had been strictly colnpltetl with.

I 5 The Supreme court llas categorically lield in 'Mandal Case' that person, belonging to a hack~ritt-d class. who becomes a inetiiher o f IAS, IPS or any other. A l l India services, his cliildreri cannot avail the benefit o f reservation.

Vlultiplc conditli~ns have been provided in all the categories. The spouse to be a graduate and holding property in urban area, are the conditions attached to almost ever\ category I'hese conditio~ir have no nexus with the object sought to be achieved. Stncc the cvnditions are not seberahle the two criteria as a whole have to be struck do\\,ll.

I h c court in blandal case has clearly and authoritatively laid down that the aff lue~lt par1 t l ie backward class ca1lt.d 'crea~iiy layer' Iias l o be excluded from the said class ;arid tlie bonefit of Article 16 (4) can only be given to tlie 'class' which remains after the c'xclusron ofthe "creamy layer". The backward class under Article 16(4) means the c l i l s i ~ I i i c l i II~S 110 element of -'creamy layer" in it. I t i s mandatory under Article 16(4) ;IS i11rcrprf:tcd by rhis court thar the state must identify the "creamy layer" in backward c l ; ~ s ~ c ~ a i ~ d the thereafter b) cxcludi~ig the "creamy layer" extend tile benefit o f i . e \ e l \ i l t i ~ l l C(.I the 'class' which remains afier such exclusion. This (Supreme) Court ha, I ; i~d down. clcar and eas? to fhllow gttidelines for tlie identification o f 'crea~ny la!r i ' 1-lir itittes o f Bihar and Clttar Pradesh have acted wholly arbitrarily and in utter vi<)iatioti ot'the law laid down by this court in Matidal case. I t is difficult to accept that ill l i i ~ l i i t trllel-c. ths2 per capital iratio~ial income is Rs. 6979 (1 993-94), a person who is a ntc.ilrliel- .)f rite IAS and a professional who is earning less than Rs. I 0 lakhs per annum i\ hi~ctall) atld e~ducationally backward. The court i s o f the view that the criteria laid ~,WII h i the stares o f Bihar tuld Uttar Pradesh for identifying the "creamy layer' on 1Iiv I';lcc of i t i s arbitrary and lias to he rejected.

I lic ci)itrt. ~llercfore, held tliat the above quoted criteria fol- identification o f "creamy lir! ui-. land do \ r~ i by the states of Biliar and llttar Pradesh are violative of Aritle 16(4), I arhttrary-violative 8 , j Al.ticle 14 and against llle la\\ laid d o w ~ l by this court 111 h lai~dal ('ase.

I ;tc C<I.I~I :illowed the \ v r i l petitions and quashed (except clause I of'schedule Ill) o f 111c l%i l~nr Ruszrvatio~l <,f Vacaiicies ill posts and services ( f in scheduled castes. .$ ltcduled tiihcs and other linch!\:u-d Classes) (Aniendtnent) ()rditi;ince 1995 (also the

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Act. I F Ordil~arlce has been con\erted into Act). The court also quashed scheduled I1 rcad w t h scctlon 3 (b) of the Uttar I'radesh Public scrvices reservation of scheduled castcs rind scheduled Tribes and other Backward classes Act 1994.

Thc court illrectcd that for the Academic ycar 1995-96 the states of Uttar Pradesh and Bihar shall follo~v the crrtzrla land down by the Government of India in the Memorandum dated 8/9/1943 It \\.ill bc open to thc two states to lay down fresh critcr~a for the subsequent bears in accordance with law (Ashok Kumar Thakur V State of Bihar)

Id Among the concept of equalit) three stand out prominently viz., numerical, meriterian and proportiolral Under the first. the distribution of goods or advantages is among all, irrespcct11.e of merit or need. and on the basis of equality of human worth. In the second. the distribution is according to merit or efficiency as it promotes the social good This is particularly su~ted where the distribution of scarce goods or position is conccmcd On the other hand. \\here great inequalities exist, the distribution of goods on the basis of merlt. instead of diminishing inequalities will widen them. Therefore, in ordcr to promotc overall equality in society, a third mode of distribution based on proport~onal equality may be adoptcd, that is, by taking a relevant criterion into account the balance, the disadbantage suffered and thereby making the distribution depcndcnt upol~ proportion (AIR I967 SC 490 at 5 18).