Right to Equality is one of the basic fundamental rights of the Constitution of
India which is guaranteed to all the citizens of the country. Article 16 of the
Constitution deals with the equality of opportunity in matters of public
employment, which ensures equality of opportunity for all the citizens in
matters relating to employment or appointment to any office under the
State. 'Equal opportunity' is a term which has differing definitions and not
have a precise meaning.
The issue of reservation has been overwhelming issue for
quite a long time in India. It has seen times of differentiation in the
educational and employment area not founded on open competition and merit but
rather on rank, class edifying, money allied and social footing. In the present
case, the constitutional validity of two office memorandum of the Central
Government was challenged before the Supreme Court.
The first backward class commission known as Kaka Kalelkar Commission
up on January 29, 1953 by a Presidential Order under Article 340 of the
Constitution of India. The Commission submitted its report on March 30, 1955,
recommending that factors such as traditional occupation and profession,
percentage of literacy and general education advancement, estimated population,
and distribution throughout the State, have to be taken into account for
classifying a community as a backward class
. 2399 castes were listed out as
socially and educationally backward on the basis of criteria evolved by it, but
the Central Government rejected the report of the Commission in 1961.
On January 1, 1979, the Janata Dal, headed by the Prime Minister Moraji Desai
appointed the second backward classes commission under the chairmanship of Sri
B.P. Mandal, for determining the criteria for defining 'socially and
educationally backward classes (SEBCs)'and to examine the desirability of
providing for reservation in public services and posts in favour of such
backward classes and citizens within the territory of India.
The commission submitted its report on December 31, 1980, and it relied almost
exclusively on caste as the predominant criterion for reservation in Government
jobs. About 3743 castes were identified as SEBCs and recommended for reservation
of 27% quota for Other Backward Classes (OBC's). Discussions were held in
Parliament from 1980- 1990 on the commission's recommendations, but the report
was not implemented. In the meantime, due to internal disturbance within the
party, the Government collapsed and couldn't implement the recommendations made
by the commission and after that, the Congress Government headed by the Prime
Minister Indira Gandhi came to the power at the Centre. She didn't implement the
commission report till 1989.
In 1989, Janata Dal again came to the power and Prime Minister V.P. Singh issued
an Office Memorandum (O.M.) dated August 13, 1990, and implemented Mandal
Commission's recommendation of 27% quotas for OBCs in public service. and
additional reservation of 10% vacancies for 'other economically backward
sections of the people' who were not covered by any existing scheme of
This cause effect in civil disturbance throughout the country. From various
places anti- reservation movement rocked the nation for three months. Several
students burnt themselves and all the major universities in north India came up
in flames. It resulted in a huge loss of persons and property.
A writ petition was filed from the Bar Association of the Supreme Court
challenging the validity of Office Memorandum issued by the Government. The case
was ultimately decided by the five judges bench. They issued a stay order till
the final disposal of the case on October 1, 1990. Unfortunately, in the
meanwhile, the Janata Government again collapsed due to defections and in 1991,
in the Parliamentary elections, the Congress again formed the Government at
In a conciliatory measure, the newly elected coalition government came
out with another O.M. dated September 25, 1991, which modified the earlier O.M.
and provided for an additional 10% reservation for other economic backward
sections of society who were not covered by the existing schemes of reservation.
The five judge's bench referred this matter to the nine judges bench who issued
a notice to the Government to show cause the criteria upon which the Government
has proposed to make 27% reservation for them and adjudicate on complex
constitutional questions involving the interpretation of Article 16.
- (a) Whether the 'provision' contemplated by Article 16(4) must
necessarily be made by the legislative wing of the State?
(b) If the answer to Clause (a) is in the negative, whether an executive order
making such a provision is enforceable without incorporating it into a rule made
under the proviso to Article 309?
- (a) Whether Clause (4) of Article 16 is an exception to Clause (1) of
(b) Whether Clause (4) of Article 16 is exhaustive of the special
provisions that can be made in favour of 'backward class of citizens'? Whether
it is exhaustive of the special provisions that can be made in favour of all
sections, classes or groups?
(c) Whether reservations can be made under Clause (1) of Article 16 or whether
it permits only extending of preferences/concessions?
- (a) What does the expression 'backward class of citizens' in Article
(b) Whether backward classes can be identified on the basis and with reference
to caste alone?
(c) Whether a class, to be designated as a backward class, should be
situated similarly to the Scheduled Castes/Scheduled Tribes.?
(d) Whether the 'means' test can be applied in the course of identification of
backward classes? And if the answer is yes, whether providing such a test is
- (a) Whether the backward classes can be identified only and
exclusively with reference to economic criteria?
(b) Whether criteria like occupation-cum-income without reference to caste
altogether, can be evolved for identifying the backward classes?
- Whether the backward classes can be further categorized into backward
and more backward categories?
- To what extent can the reservation be made?
- Whether the 50% rule enunciated in Balaji a binding rule or only a rule of
caution or rule of prudence?
- Whether the 50% rule, if any, is confined to reservations made under
Clause (4) of Article 16 or whether it takes in all types of reservations
that can be provided under Article 16?
- Further while applying 50% rule, if any, whether a year should be taken
as a unit or whether the total strength of the cadre should be looked to?
- Whether Devadasan was correctly decided?
- Whether Article 16 permits reservations being provided in the matter of
- Whether reservations are anti- meritarian? To what extent are Articles
335, 38(2) and 46 of the Constitution relevant in the matter of
construing Article 16?
- Whether the extent of judicial review is restricted with regard to the
identification of Backward Classes and the percentage of reservations made
for such classes to a demonstrably perverse identification or a demonstrably
- Whether the distinction made in the Memorandum between 'poorer sections'
of the backward classes and others permissible under Article 16?
- Whether the reservation of 10% of the posts in favor of 'other
economically backward sections of the people who are not covered by any of
the existing schemes of the reservations' made by the Office Memorandum
dated 25.9.1991 permissible under Article 16?
The questions regarding reservation in our Constitution has arisen before the
Supreme Court multiple times.
In State of Madras v. Smt. Champakan Dorairajan
, a Government Order (G.O.)
issued by the State of Madras which apportioned seats in engineering and medical
colleges on the basis of one's caste was challenged before the Supreme Court. A
Special Bench of seven judges heard the matter. S.R. Das J. held that the
ineligibility created by the 'communal G.O.' whereby a Brahmin, who was
otherwise eligible, was rendered ineligible by virtue of his caste, was
repugnant to Article 15 and 16.
Pursuant to Supreme Court's order in the case, the Parliament intervened and
amended Article 15 by inserting Clause (4) by way of the Constitution (First
Amendment) Act, 1951 which authorized the State to make special provisions for
the advancement of 'socially and educationally backward classes of citizens'.
In M.R. Balaji and Ors. v. State of Mysore
, the State of Mysore issued an
order under Article 15(4) of the Constitution declaring all the communities
except the Brahmin community as socially and educationally backward and
reserving a total of 75 percent seats in Educational Institutions in favor
of Socially and Educationally Backward Classes (SEBCs) and Scheduled Castes/
The validity of the impugned order was questioned before the Supreme Court.
The five judge Bench while striking down the said order, enunciated that Article
15(4) is a proviso or an exception to Article 15(1) and to Article 29(2).
For the purpose of Article 15(4), backwardness must be both social and
educational. The reservation made under Article 15(4) should be reasonable. It
should not be such as to defeat or nullify the main rule of equality contained
in Clause (1). The further categorization of backward classes into backward and
more backward is not warranted by Article 15(4).
The scope of Article 16 (4) was considered by the Supreme Court in T. Devadasan
v. Union of India
. The Supreme Court struck down the “carry forward rule”,
made by the Government to regulate the appointment of persons of backward
classes in government services as unconstitutional on the ground that the power
vested in the government cannot be so exercised so as to deny reasonable
equality of opportunity in matters of public employment for the members of
classes other than backward classes. Clause (4) of Art. 16 is by way of a
proviso or an exception to clause (1).
A seven judge bench of Supreme Court in State of Kerala v. N.M. Thomas
the lone dissenting opinion of Justice Koka Subba Rao in Devdasan's case.
governmental order granted provisional promotions to members of Scheduled Castes
and Scheduled Tribes who did not have the requisite qualifications to be
eligible for such promotion, along with a two years' grace period for them to
gain such qualifications was challenged.
The Court observed that Article 16(1) as a facet of right to equality under
Article 14 permits reasonable classification. For making such classification,
two criteria were fixed; first, basis of classification must be “backwardness
and second, the classification must have nexus to the adequacy of
In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India
circulars issued by the Railway Board favoring Scheduled Castes and Scheduled
Tribes promotions etc. in railway services was held valid. Carry forward rule to
the extent of 64.4 percent was not considered excessive by Justice V.R.
Krishnaiyer, and Justice O Chinnapa Reddy found that the limitation of 50
percent laid in Devadasan's case was only for guidance and CFR could be extended
for 2 to 3 years.
In K.C. Vasanth Kumar v. State of Karnataka[
11], the Supreme Court suggested
that the reservations in favor of Scheduled Castes and Scheduled Tribes must be
based on the “means test”. For backward classes, two tests should be
conjunctively applied for identifying them for the purpose of reservation in
employment and education.
One, that they should be comparable to the Scheduled Castes and Scheduled Tribes
in the matter of their backwardness; and two, that they should satisfy the means
test such as a State Government may lay down in the context of prevailing
The 9 judges Constitution Bench of the Supreme Court by 6:3 majority gave the
- Backward class of citizen in Article 16(4) can be identified on the
basis of the caste system and not only on economic basis.
- Article 16(4) is not an exception of Article 16(1). It is an instance of
the classification. Reservation can be made under article 16(1).
- Backward classes in Article 16(4) were not similar to as socially and
educationally backward in article 15(4).
- Creamy layer must be excluded from the backward classes.
- Article 16(4) permits classification of backward classes into backward
and more backward classes.
- A backward class of citizens cannot be identified only and exclusively
with reference to economic criteria.
- Reservation shall not exceed 50%.
- Reservation can be made by the Executive Order.
- No reservation in promotion.
- Permanent Statutory body to examine complains of over- inclusion /
- Majority held that there is no need to express any opinion on the
correctness or adequacy of the exercise done by the Mandal Commission.
- Disputes regarding new criteria can be raised only in the Supreme Court.
The first memorandum of the Mandal Commission took 'caste' as a dominant, rather
sole criterion for determining the 'socially and educationally backward
classes'. For this, the commission made a nationwide survey of the entire
population and evolved eleven indicators; divided them into social, educational
and economic criteria. The social indicators were given weightage of three
points; educational and economic indicators, two and one point respectively,
which together made twenty-two points. On the basis of these indicators, the
Mandal Commission identified 3743 castes that were backward classes
eligible for 27% reservation in public employment.
The Mandal Commission relied on highly inadequate data. The commission itself
admitted that the surveys were carried out only in 0.06% of the villages. Many
castes were simply included because they were mentioned in the first Backward
Classes Commission report headed by Kaka Kalelkar. There was a vast disparity
between the number of castes that had been recognized as backward by the
Kalelkar Commission and by the State Government.
The commission relied on the
1931 and 1961 census for computing the percentage of backward classes, even when
1971 census was available, and completely ignored the demographic changes of the
last fifty years and the fact that India of 1931 included Pakistan, Burma and
Bangladesh. The report was statistically flawed, historically inaccurate and
logically absurd but still, six out of nine judges accepted the report by
completely glossing over these fatal defects. Justice Kuldip Singh strongly
criticized the report by remarking: 'A collection of so- called backward castes
by a clerical act based on drawing- room investigation cannot be the backward
classes envisaged under Article 16(4).'
He also stated that inadequacy of representation was the pre- condition for
reservation under Article 16(4). Hence, the State has to first make a
determination of those communities that were under- represented in the
Government services and then examine whether it was there backwardness that
caused such under- representation. If the answer to both these questions was in
the affirmative, only then could that community be treated as a 'backward class'
eligible under the benefit under Article 16(4).
The Mandal Commission treated 'backward classes' and 'backward castes' as
synonymous terms, and used 'caste' as the exclusive factor to provide
reservation to individuals, excluding all other considerations including
economic background. The commission ignored the basic point that it was not
concerned with the genesis of social backwardness in India society but with the
determination of the 'backward class' for the purpose of Article 16(4).
Justice R.M. Sahai, in his dissent opined, since the Constitution uses a wider
word of 'class' and not 'caste', elementary principles of construction dictate
that an interpretation leading to identification of backwardness on the basis of
caste ought to be rejected. Empowering the State to make reservation under
Article 16(4) on religion, race or caste would amount to destroying the purpose
and object of Article 16(2) and would fall foul of the rule of
anti-discrimination on the basis of caste. Identification based on caste would
preclude socially, educationally and economically backward members of other
communities from being regarded as backward classes.
creates the imminent risk of entrenching atavistic
caste identities firmly within society. A system of reservations based on caste, incentivises even non-backward individuals belonging to "backward castes”
(creamy layer) to exploit their caste to benefit from affirmative action of the
State. Caste was never considered the desirable ground by the founding fathers
of the Constitution to provide reservation as it formulates unnecessary
discrimination and differentiation on a wrong basis that only disturbs the
peaceful balance in the society and promotes mutual hatred.
Dr. Justice T.K. Thommen, also in his well- reasoned dissenting opinion observed
that “what is sought to be identified for the purpose of reservation is not
caste or religion, but poverty and backwardness caused by historical
discrimination and its continuing evil effects. Caste may be a guide in this
search, just as occupation or residence may be a guide, but what is sought to be
identified is none but backwardness stemming from historical discrimination.
caste is more often than not a guide in the search of backwardness and if the
lowest of the low castes has for historical reasons become the indicium of the
backwardness of the kind attracting reservation, caste in the absence of any
better guide is a factor to be taken into account along with other factors such
as poverty, illiteracy, physical and mental disabilities, and other diseases
caused by malnutrition, unhygienic conditions and the like.”
The majority in their judgement held that reservation will be confined to the
initial appointment alone, and will not be extended to promotion stage. They
observed that “at the initial stage of recruitment, reservation can be made in
favour of backward class of citizens but once they enter the service, efficiency
of administration demands that these members to compete with others and earn
promotion like all others. They are expected to operate on equal footing with
others. Crutches cannot be provided throughout one's career. That would not be
in the interest of efficiency of administration nor in the larger interest of
The majority also advised to keep certain posts outside the ken of reservation
even at the stage of initial appointment, either on account of the nature of
duties attached to such posts or their level in the official hierarchy as this
would seriously impair the administrative efficiency that is mandated by Article
335. An illustrative list of such posts was also given.
The petitioner's contention that the percentage of reservation should be
confined to 30%, as the figure referred to in by Dr. B.R. Ambedkar's speech in
the Constitutional Assembly was rejected by the majority. The majority relied on
the decision laid down in State of Kerala v. N.M. Thomas
 on quantum of
reservation. The majority held that Article 16(4) was a facet of, and not an
exception to Article 16(1).
However, the majority placed a cap of 50% on total
reservation for appointments made every year and reservation cannot cross 50%.
The Court overruled the Devdasan case which held that reserved seats/ posts
which could not be filled up in a given year can be carried forward to the next
year but, subject to the overall limit that over- all reservation in any one
year ought not to be more than 50%. The second O.M. providing 10% reservation in
favor of 'other economically backward section' was held unconstitutional.
By majority of 8:1, the Supreme Court held that the words socially and
educationally backward classes
cannot be read into Article 16(4), as the
Constitution did not intend to restore the benefit only to those who are
socially and educationally backward. The majority also held that the expression
other backward classes
is different, and broader in its meaning and
scope when compared with the expression' socially and educationally backward
classes' contained in Article 15(4). The other backward classes
need not be
similar in their backwardness to Scheduled Castes and Scheduled Tribes, in order
to avail the benefits of reservation.
The concept of creamy layer
was to be excluded from the backward classes
from the benefits of reservation. Creamy layer
meant those individual
members found in any caste who had already made such significant strides in
social, educational and economic progress as to render them undeserving of the
benefits of reservation. However, it is difficult to exclude the members of such
groups which are already highly socially advanced, economically and
Thus, they are as fit and forward as any other member of the mainstream society
but were lapping up the benefits and defeating the very social objective of
achieving equality within the society and not allowing such benefits to reach
the truly backward sections of that class. The really deserving tragically
never gets the benefit of reservation or any affirmative policy of the
Government. Thus, it amounts to violation of the principle of 'equality among
The judgement proves, that caste should never be made the basis of achieving a
noble objective as it not only disrupts the basic principles of equality and
fraternity in a society but also creates an unnecessary division between the
deserving and the deserved, a barrier which is difficult to define but hard to
Though reservations were neither an economic reform nor a poverty alleviation
programme, but a programme of historical compensation, but the doctrine of
backward classes would bring in back- door casteism
and subvert the scheme for
castles society by creating vested interest in the plums of backwardism
Framers of the Indian Constitution were against the evil of casteless and
raunchy society. They had envisioned a unified, secular and homogenous society
which would not be torn apart by the ugly shades of casteism, religious
communalism, color, domicile and language.
The Indian Constitution is neither caste-blind nor caste-prejudiced, but fully
alive to caste as one of the relevant criteria to be considered in the process
of identification of backward classes of citizens. Reservation solely on the
basis of caste will fall foul of the rule of anti-discrimination and may result
in invidious reverse discrimination. The concept of equality cannot be pressed
to commit another wrong.
Determination of backwardness to grant reservation to the classes must be based
on certain ascertained social objectives based on common parlance of modern
society and not on the mere subjective satisfaction of an individual seat of
power. Amongst the classes granted reservation, those who have been
benefited from the reservation and have thus improved their social status
(creamy layer), should not be allowed to benefit from reservation over and over
again. The benefit of the reservation should not be misappropriated by the upper
crust but it should be allowed to filter down to the lowliest so that they may
benefit from reservation to improve their position.
Written By: Shreyansh Chopra
- AIR 1993 SC 477
- Appointment of a Commission to investigate the conditions of backward
-  S.C.R. 525.
-  Suppl. 1 S.C.R. 439.
- AIR 1964 SC 179.
- Supra note 5.
- AIR 1976 SC 490.
- AIR 1981 SC 298.
- AIR 1985 SC 1495.
- B.P Jeevan Reddy, J. Indra Sawhney v. Union of India, AIR 1993 SC
- Claims of Scheduled Castes and Scheduled Tribes to services and posts
- Id., at 8.
- Id., at 6.
- BA. LLB, 2nd YEAR (Vivekananda
Institute of Professional Studies, GGSIPU), 2018- 2023.