Full Judgment Text
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PETITIONER:
STATE OF ANDHRA PRADESH & ANR.
Vs.
RESPONDENT:
P. SAGAR
DATE OF JUDGMENT:
27/03/1968
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAMASWAMI, V.
MITTER, G.K.
CITATION:
1968 AIR 1379 1968 SCR (3) 565
CITATOR INFO :
RF 1971 SC2303 (25)
R 1972 SC1375 (33,64,80,87,92)
F 1973 SC 930 (22)
RF 1975 SC 563 (14,21)
F 1985 SC1495 (60,63,119,114)
ACT:
Constitution of India, Art. 15(1) and (4)-State preparing a
list of backward classes within the meaning -of cl. (4)-
Claiming to have done so on advice of experts who were
satisfied-relevant tests were applied Not placing any
material before court to consider validity of list which ex-
facie included ’castes’ and not classes-Whether court can
hold such list as valid.
HEADNOTE:
By an order of the State Government, Andhra Pradesh, issued
on July 29, 1966, 20% of the total number of seats for
admission to medical colleges in the State were reserved,
for members of the backward classes described in a list
prepared by the Government. This order and the list were
challenged in writ petitions before the High Court on the,
ground that another list published by the State Government
on June 21, 1963 determining backward classes for the
purpose of Art. 15(4) of the Constitution had been declared
invalid by the High Court in an earlier case as being
violative of Art. 15(1); it was contended that the State
Government had adopted substantially the same list of
backward classes with slight modifications and as the new
list also made the reservation in favour of castes and not
classes, it infringed the guarantee under Art. 15(1). On
behalf of the State Government it was urged that caste is
one of the relevant tests in determining backwardness, and
cannot be ignored in determining socially and educationally
backward classes and if a group has been classified as
backward on other relevent considerations, the
classification is not liable to be challenged as invalid on
the ground that for the purpose of classifying, the
designation of caste is-given. It was stated in an
affidavit on behalf of the State that the new list had been
prepared by a Cabinet sub-committee and’approved by the
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Cabinet after a detailed enquiry of the conditions of the
castes in question and on expert advice of the Director of
Social Welfare as well as under the guidance of the Law
Secretary; and that they were both satisfied that the
correct tests were applied in the determination of the
backward classes. The High Court held that the reservations
of seats for the members of the backward classes described
in the list prepared by the Government were in-,-Aid. The
State appealed to this Court by special leave.
HELD:dismissing the appeal,
The impugned list prepared by the State was ex-facie based
on castes or communities and wag substantially the same list
which bad been struck down by the High Court as invalid in
the earlier case. No materials were placed on the record to
enable the Court to decide whether the criteria laid down
for determining that the list prepared by the Government
conformed to the requirements of cf. (4) or Art. 15 were
followed.
Article 15 guarantees by the first clause a fundamental
right of farreaching importance. Clause (4) is an exception
engrafted upon the guarantee in cl. (1), but being id the
nature of an exemption conditions which justify departure
must be strictly shown to exist. When a dispute is raised
before a Court that a particular. law which is inconsistent
with the guarantee against discrimination is valid on the
plea that it is permitted
596
under cl. (4) of Art. 15, the mere assertion by the State
that the officers of the State had taken into consideration
the criteria which had been adopted by the courts for
determining who the socially and educationally backward
classes of the Society are, or that the authorities had
acted in good faith in determining the socially and
educationally backward classes of citizens, would not be
sufficient to sustain the validity of the claim. If a
question arises whether a law which prima facie infringes a
fundamental right is within an exception, the validity of
that law has to he determined by the courts on materials
placed before them. By merely asserting that the law was
made after full consideration of the relevant evidence and
criteria which have a bearing thereon, and was within the
exception, the jurisdiction of the courts to determine
whether by makinig the law a fundamental right has been
infringed is not excluded. [603 C-G].
Case law referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1336 of 1967.
Appeal by special leave from the judgment and order dated
October 7, 1966 of the Andhra Pradesh High Court in Writ
Petition No. 1268 of 1966.
P. Ram Reddy and A. V. V. Nair, for the appellants.
K.Narayana Rao and G. Narayana Rao, for the intervener.
The Judgment of -the Court was delivered by
Shah, J. Against the order passed by the High- Court of
Andhra Pradesh declaring invalid the "reservation for
backward classes under Rule 4A and 5A respectively of the
Telangana and the Andhra Rules, and the directions in
respect of the President’s Scouts and. Guides", under
Government orders Nos. 1135 & 1136-Health, Housing &
Municipal Administration Department dated June 16, 1966, as
modified by G.O. M.S. 1880 dated July 29, 1966 for the
Telangana region, and by G.O.M.S. 1786 dated August 2, 1966
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for the Andhra Region, the State of Andhra Pradesh has
appealed to this Court with special leave.
The State of Andhra Pradesh is divided into two areas-Telan-
gana and Andhra areas. In the Telangana area there are two
Medical Colleges having in the aggregate 270 seats for
entrants to the medical degree course. In Andhra area there
are four Medical Colleges having in the aggregate 550 seats
for new entrants. In admitting candidates for the medical
degree course by Government orders Nos. 1135 & 1136 Health,
Housing and Municipal Administration Department dated June
16, 1966, seats were reserved for Central Government
nominees, for N.C.C., A.C.C President’s Scouts & Guides, for
candidates with sports and extracurricular proficiency, for
children of ex-Service army personnel, for children of
displaced goldsmiths, for candidates from Scheduled Castes
and -Tribes, for women candidates, for candidates appearing
from H.S.C. Multipurpose I.S.C. & P.U.C. Examinations,
597
and for candidates who had secured the M.Sc. & B.Sc. de-
grees. By Government order No. 1880 dated July 29, 1966,
twenty per cent. of the total number of seats were reserved
for backward classes in each area, and pursuant thereto the
Telangana Rules were amended by G.O. M.S. No. 1784-Health
and the Andhra Rules were amended by G.O. M.S. No. 1783-
Health dated August 2, 1966. The Validity of the Government
orders Nos. 1135 & 1136 was challenged on the ground that
they infringed the fundamental freedoms guaranteed under
Arts. 15(4), 16(4) and 29(2) of the Constitution. The High
Court held that in reserving seats for nominees of the
Central Government and from other States, for cultural
scholars, for women, for graduates and for students from
H.S.C. & P.U.C. Courses, no fundamental rights were
infringed, but the reservations for members of the backward
classes described in the list prepared by the Government of
Andhra Pradesh were invalid.
By Art. 15 of the Constitution, as originally enacted, it
was provided that
"(1) The State shall not discriminate against
any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
(2)..................................
(3)Nothing in this article shall prevent
the State from making my special provisions
for women and children."
Article 29(2) provided that
"No citizen shall be denied admission into any
educational institution maintained by the
State or receiving aid out of State funds on
grounds only of religion, race, caste,
language or any of them.
By Art.. 46, which occurs in Ch. IV relating to Directive
Principles of State Policy, the State was enjoined to
promote the educational and economic interests of the weaker
sections of the people, but Arts.’ 15 and 29 as originally
framed prohibited the making of,any discrimination against
any citizen on grounds only of religion,, race, caste, sex,
place, of birth or any of them. In the State of Madras v.
Shrimati Champakam Dorairajan(1) an order issued by the
Government of the State of Madras fixing the number of seats
for particular communities for selection of candidates for
admission to the Engineering and Medical Colleges in the
State was challenged on the ground that it violated the
guarantee against d crimination under Art. 25(2) of
the"Constitution. This Court held that the Government order
constituted a violation of the
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(1) [1951] S.C.R. 525.
598
fundamental right guaranteed to the citizens of India by
Art. 29(2) of the Constitution, notwithstanding the
directive principles of State policy laid down in Part IV of
the Constitution. The Part thereafter added cl. (4) in Art.
15, by the Constitution (First Amendment) Act, 1951,
providing that:
"Nothing in this article or in clause (2) of
article 29 shall prevent the State from making
any special provision for the advancement of
any socially and educationally backward
classes of citizens or for the Scheduled
Castes and the Scheduled Tribes."
On July 31, 1962, the State of Mysore, in supersession of
all previous orders made under Art. I 5(4) divided backward
classes into two categories : backward classes and more
backward classes, and reserved 68%- of the seats in the
Engineering and Medical Colleges and other technical
institutions for the educationally and socially backward
classes and the Scheduled Castes and Scheduled Tribes, and
left 32% seats for the merit pool. That order was
challenged by a group of writ petitions under Art. 32 of the
Constitution before this Court. This Court in M. R. Balaji
& others v. State of ’Mysore(1) held that the order passed
by the State of Mysore "was a fraud on the constitutional
power conferred on the State by Art. 15(4)" and was liable
to be quashed, because the order categorised, contrary to
the plain intendment of Art. 15(4), the backward classes on
the sole basis of caste. A similar order G.O. M.S. No.
1880-Health issued by the State of Andhra Pradesh on June
21, 1963, notifying a list of castes for the purpose of
selecting candidates from the backward classes in the
Medical Colleges in the State of Andhra Pradesh was declared
invalid by the High Court of Andhra Pradesh on the ground
that the order which classified the backward classes solely
on the basis of caste subverted the object of Art. 15(4) of
the Constitution : see P. Sukhadev and others v. The
Government of Andhra Pradesh (2).
On February 3, 1964, the. previous order issued by the State
of Andhra Pradesh was cancelled. Thereafter it is claimed
by the’ State of Andhra Pradesh that it took steps to
prepare a fresh list of backward classes consistently with
the provisions of the Constitution. The Chief Secretary of
the Government of Andhra Pradesh has sworn in his affidavit
that the Council of Ministers appointed a Sub-Committee to
draw up a list of backward classes, inter alia, for the
purpose of admission of students to professional Colleges.
The Committee invited the Law Secretary and the Director of
Social Welfare to attend the meetings of the Sub-Committe,
and letters were written to the other States calling for
information about the criteria adopted by those States for
determining backward classes for purposes of Am. 15(4) and
16(4) of the
(1) [1963] Supp. 1 S.C.R. 439.
(2) (1966) 1 Andbra W.R. 294.
599
Constitution, that after considering the replies received
from the Chief Secretaries of the various States it was
resolved ’that the existing list of backward classes
pertaining to Andhra and Telangana areas he scrutinised with
a view to selecting from that list those castes or
communities which are "considered backward on account of the
low standard of living, education, poverty, places of
habitation, inferiority of occupations followed etc "; that
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at another meeting it was resolved that the, list of 146
backward communities prepared by the Director be rearranged
in "the order of priority in consultation with the Law
Secretary, taking into consideration the criteria given by
Law Secretary in his note to the Cabinet Sub-Committee and
that in doing so such of the criteria as capable of being
practically possible for consideration may be taken into
account", and accordingly the Law Secretary and the Director
of Social Welfare considered the representations made by
certain communities to the Government from time to time and
"drew up a list of the order of priority as called for by
the Cabinet Sub-Committee", that thereafter the Cabinet Sub-
Committee made its recommendations which were considered by
the Council of Ministers on July 4, 1966, and that the
Council of Ministers considered the social, educational and
economic conditions of the backward classes named in the
lists submitted to them, and dealt with each individual
class and deleted certain items or classes in the lists,
changed the denomination of certain classes "for the more
premise effectuation of concessions to those classes only
who really need them", and consolidated the backward classes
into one list, ruling out the priorities suggested by the
Director of Social Welfare in accordance with the opinion of
the Cabinet Sub-Committee, and thereafter published
resolution No. G.O. 1880 pursuant to which the rules were
amended reserving 20% of the seats for the backward classes
mentioned in the list prepared by the Cabinet of the State.
The list prepared on the basis of reservations for socially
and educationally backward classes is indisputably a list
community wise. On behalf of the petitioners it was
contended in the High Court that the Government of Andhra
Pradesh had adopted the same list of backward classes which
was struck down by the High Court in P. Sukhadev’s caw()
with some slight modifications and the new list also having
made a reservation in favour of castes and not classes, it
infringed the guarantee Under Art. 15(1). On behalf of the
State it was urged that caste is one of the relevant tests
in determining backwardness, and cannot be ignored in
determining the socially and educationally backward classes:
if a group has been classified as backward on other relevant
considerations, the classification is not liable to be
changed as invalid on the ground that for the purpose of
classifying,the designation of caste ’is given. The High
Court held that the earlier G.O. was struck down
(1) (1966) 1 Andhra W.R. 294.
600
in P. Cukhadev’s case(’) on the ground that it was based on
caste alone, and since the G.O. under challenge was again
prepared on the same basis it could not be sustained as
falling within,the exception provided in Art. 15(4).
Counsel for the State contends that the High Court erred in
holding that the impugned rules reserving seats for backward
classes made caste the determining factor.
In the context in which it occurs the expression "class"
means a homogeneous section of the people grouped together
because of certain likenesses or common traits and who are
identifiable by some common attributes such as status, rank,
occupation, residence .in a locality, race, religion and the
like. In determining whether a particular section forms a
class, caste cannot be excluded altogether. But in the
determination of a class a test solely based upon the caste
or community cannot also be accepted. By cl. (1), Art. 15
prohibits the State from discriminating against any citizen
on grounds only of religion, race, caste, sex, place of
birth or any of them. By cl. (3) of Art., 15 the State is,
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notwithstanding the provision contained in cl. (1),
permitted to make special pro,vision for women and children.
By cl. (4) a special provision for the advancement of any
socially and educationally backward classes of citizens or
for the Scheduled Castes and Scheduled Tribes is outside the
purview of cl. (1). But cl. (4) is an exception to cl. (1).
Being an exception, it cannot be extended so as in effect to
destroy the Guarantee of cl. (1). The Parliament has by
enacting cl. (4) attempted to balance as against the right
of equality of citizens the special necessities of the
weaker sections of the people by allowing a provision to be
made for their advancement. In order that effect may be
given to cl. (4), it must a pear that the beneficiaries of
the special provision are classes which are backward
socially and educationally and they are other than the Sche-
duled Castes and Scheduled Tribes, and that the provision
made .is for their advancement. Reservation may be adopted
to advance the interests of weaker sections of society, but
in doing so, care must be taken to see that deserving and
qualified candidates are -not excluded from admission, to
higher educational institutions. The criterion for
determining-the backwardness Must not be based solely on
religion, race, caste, sex, or place of birth, and, the
backwardness being social, and educational must be similar
to the backwardness from which the Scheduled Castes and the
Scheduled Tribes suffer. These are the principles which
have been enunciated in the decision of this Court in.M. R.
Balaji’s case(3) and R. Chitralekha & Another v. State of
Mysore.and. others(2). In R. Chitralekha’s case (2),
Subba Rao, J., speaking for the majority of the Court
observed at p. 388
(1) (1963) Supp.1 S.C.R.439..
(2) (1964) 6 S.C.R.368
601
.lm15
"The important factor to be noticed in Art. 15(4) is that it
does not speak of castes, but only speaks of classes. If
the makers of the Constitution intended to take castes also
as units of social and educational backwardness, they would
have said so as they have said in the case of the Scheduled
Castes and the Scheduled Tribes. Though it may be suggested
that the wider expression "cLasses" is used in cl. (4) of
Art. 15 as there are communities without castes, if the
intention was to equate classes with castes, nothing
prevented the makers of the constitution from using the
expression "backward classes or castes’. The juxtaposition
of the expression "backward classes" and "Scheduled Castes"
in Art. 15(4) also leads to a reasonable inference that the
expression "classes" is not synonymous with castes. It may
be that for ascertaining whether a particular citizen or a
group of citizens belong to a backward class or not, his or
their caste may have some relevance, but it cannot be either
the sole or the dominant criterion for ascertaining the
class to which he or they belong."
In a recent judgment of this Court P. Rajendran & Ors. v.
The State of Madras and others(’), Wanchoo, C.J., speaking
for the Court observed :
". . . if the reservation in question had been based only on
caste and had not taken into account the social and
educational backwardness of the caste in question, it would
be violative of Art. 15(1). But it must not be forgotten
that a caste is also a class of citizens and if the caste as
a whole is socially and educationally backward reservation
can be made in favour of such a caste on the ground that it
is a socially and educationally backward class of citizens
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within, the meaning of Art. 15(4). It is true that in the
present cases the list of socially and educationally
backward classes has been specified by caste. But that does
not necessarily mean that caste was the sole consideration
and that persons belonging to these castes are also not a
class of socially and educationally backward citizens."
That case makes no departure from the rule enunciated in the
earlier cases.
The list dated June 21, 1963, of castes prepared by the
Andhra Pradesh Government to determine backward classes for
the purpose of Art. 15(4) was declared invalid by the High
Court of’ Andhra Pradesh in P. Sukhadev’s case(’). A fresh
list was published under the amended rules with some
modifications, but the
(1) [1968] 2 S.C.R. 786.
(2) [1966] 1 Andhra W.R. 294.
602
basic scheme of the list was apparently not altered. It is
true that the affidavits filed by the Chief Secretary in the
High Court and the Director of Social Welfare in this Court
have set out the steps taken for preparing the Est of
backward classes. It is also stated in the affidavit of the
Director of Social Welfare that he considered the
representations made to him, consulted the Law Secretary and
certain publications relating to the study of backward
classes e.g. - Thurston’s "Caste and Tribes" and Sirajul-
Hasan’s "Castes and Tribes", and made his recommendations
which were modified by the Sub-Committee appointed by the
Council of Ministers and ultimately the Council of Ministers
prepared a final list of backward classes. But before the
High Court the materials which the Cabinet Sub-Committee or
the Council of Ministers considered were not placed, nor was
any evidence led about the -criteria adopted by them for the
purpose of determining the backward classes. The High Court
observed :
"A perusal of this affidavit (Chief
Secretary’s affidavit) as well as that of the
Director of Social Welfare,. . .which are
filed on behalf of the Government do not say
what was the material placed before the
Cabinet Sub-Committee or the Council of
Ministers, from which we could conclude that
the criteria laid down by their Lordships of
the Supreme Court have been applied in
preparing the list of backward classes.
After referring to the opinion of the Law Secretary and the
views ,of the Director of Social Welfare they observed:
".... We are not able to ascertain whether any
material, and if so, what material was placed
before the Cabinet Sub-Committee, upon which
the list of backward classes was drawn. On
the other hand, it is stated -that the- Law
Secretary and the Director of Social Welfare
sat together and drew up a list, the former
specifying the legal requirements and the
latter as an expert advising on the social and
educational backwardness of class or classes."
It was urged before the High Court that expert knowledge of
the Director of Social Welfare and of the Law Secretary was
brought to bear upon the consideration of the relevant
materials in the preparation of the list and they were
satisfied that the correct tests were applied in the
determination of backward classes and on that -account the
list should be accepted by the High Court. The High Court
in dealing with the argument observed:
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".... the impugned backward classes list
cannot be and has not been sustained by the-
Government as
603
coming within the exception provided in Art.
15(4) on any material placed before this
Court. In fact, there is a total absence of
any material, from which we can say that the
Government applied the criteria enunciated by
their Lordships of the Supreme Court in the
above referred cases, in preparing the list of
backward classes. We cannot accept the
contention of the learned Advocate General
that "once there is proof that the Government
bona fide considered the matter it is
sufficient". Acceptance of this argument
would make for arbitrariness, absolving the
party on whom the burden of proof to bring it
within the exception rests, from proving it.
The mere fact that the act is bona fide and
that there was total absence of mala fides, is
not relevant."
Article 15 guarantees by the first clause a fundamental
right of far-reaching importance to the public generally.
Within certain defined limits an exception has been
engrafted upon the guarantee of the freedom in cl. (1), but
being in the nature of an exception, the conditions which
justify departure must be strictly shown to exist. When a
dispute is raised before a Court that a particular law which
is inconsistent with the Guarantee against discrimination is
valid on the plea that it is permitted under cl. (4) of Art.
15, the assertion by the State that the officers of the
State had taken into consideration the criteria which had
been adopted by the Courts for determining who the socially
and educationally backward classes of the Society are, or
that the authorities had acted in good faith in, determining
the socially and educationally, backward classes of
citizens, would not be sufficient to sustain the validity of
the claim. The Courts of the country are invested with the
power to determine the validity of the law which infringes
the fundamental rights of citizens and others and when a
question arises whether a law which prima facie infringes a
guaranteed fundamental right is within an exception, the
validity of that law has to be determined by the Courts on
materials placed before them. By merely asserting that the
law was made after full consideration of the relevant
evidence and criteria which have a bearing thereon, and was
within the exception, the jurisdiction of the .Courts to
determine whether by making the law a fundamental right has
been infringed is not excluded.
The High Court has repeatedly observed in the course of
their judgment that no materials at all were placed on the
record to enable them to decide whether the criteria laid
down by this Court for determining that the list prepared by
the Government conformed to the requirements of cl. (4) of
Art. 15 were followed. On behalf of the State it was merely
asserted that an enquiry was in fact made with the aid of
expert officers and the Law Secretary and the question was
examined from all points of view by the L7Sup.C.I/68-14
604
officers of the State, by the Cabinet Sub-Committee and by
the Cabinet.- But whether in that examination the correct
criteria were applied is not a matter on which any
assumption could be made especially when the list prepared
is exfacie based on castes or communities and in
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substantially the list which was struck down by the High
Court in P. Sukhadev’s case(1) Honesty of purpose of those
who prepared and published the list was not and is not
challenged, but the validity of a law which apparently
infringes the fundamental rights of citizens cannot be
upheld merely because the law-maker was satisfied that what
he did was right or that he believes that he acted in manner
consistent with the constitutional guarantees of the
citizen. The test of the validity of a law alleged to
infringe the fundamental rights of a citizen or any. act
done in execution of that law lies not in the belief of the
maker of the law or of the person executing the law, but in
the demonstration by evidence and argument before the Courts
that the guaranteed right is not infringed.
The appeal therefore fails and is dismissed.,
R.K.P.S. Appeal dismissed.
(1) [1966] 1 Andhra W.R. 294.
605