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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3609 OF 2002
CHEBROLU LEELA PRASAD RAO & ORS. … APPELLANTS
VERSUS
STATE OF A.P. & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO.7040 OF 2002
J U D G M E N T
ARUN MISHRA, J.
1. In the reference, the validity of the Government Office Ms. No.3
dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh
providing 100% reservation to the Scheduled Tribe candidates out of
whom 33.1/3% shall be women for the post of teachers in the schools
in the scheduled areas in the State of Andhra Pradesh, is under
challenge.
2. Several questions have been referred for consideration in the
order dated 11.1.2016. We have renumbered question nos.1(a)(b)(c)
and (d) based on interconnection. The questions are as follows:
“(1) What is the scope of paragraph 5(1), Schedule V to the
Constitution of India?
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(a) Does the provision empower the Governor to make a new
law?
(b) Does the power extend to subordinate legislation?
(c) Can the exercise of the power conferred therein override
fundamental rights guaranteed under Part III?
(d) Does the exercise of such power override any parallel
exercise of power by the President under Article 371D?
(2) Whether 100% reservation is permissible under the
Constitution?
(3) Whether the notification merely contemplates a classification
under Article 16(1) and not reservation under Article 16(4)?
(4) Whether the conditions of eligibility (i.e., origin and cut-off
date) to avail the benefit of reservation in the notification are
reasonable?"
3. The facts in the backdrop project that by G.O.Ms. No.275 dated
5.11.1986, issued by the Governor in exercise of power under para
5(1) of Schedule V to the Constitution of India, directing the posts of
teachers in educational institutions in the scheduled tribe areas shall
be reserved for Scheduled Tribes only notwithstanding anything
contained in any other order or rule or law in force. The Andhra
Pradesh Administrative Tribunal (for short “the tribunal”) quashed the
notification by order dated 25.8.1989. The order was questioned in
this Court in C.A. Nos.230506/1991, which was dismissed as
withdrawn on 20.3.1998.
4. Another G.O.Ms. No.73 dated 25.4.1987 was issued to amend
GOMs. No.275 dated 5.11.1986 to allow the appointment of nontribals to hold the posts of teachers in the scheduled areas till such
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time the qualified local tribals were not made available. After that,
nontribals who were appointed as teachers in the scheduled areas
filed Writ Petition No.5276/1993 in the High Court of Andhra Pradesh
at Hyderabad against termination of their services. The same was
allowed vide judgment and order dated 5.6.1996 and GOMs. No.73
dated 25.4.1987, and the advertisements were held to be violative of
Article 14 of the Constitution of India. In writ appeal, the order of the
Single Bench was set aside by the Division Bench vide judgment and
order dated 20.8.1997. The decision in W.P. No.16198/1988 thus
prevailed. The nontribal appointees preferred Civil Appeal 6437/1998
before this Court, which was allowed on 18.12.1998.
5. After this Court rendered the decision on 18.12.1998, the
Government issued a fresh notification vide GOMs. No. 3 dated
10.1.2000 effectively providing for 100% reservation in respect of
appointment to the posts of teachers in the scheduled areas. The
tribunal set aside the GOMs. Aggrieved thereby, writ petitions were
filed in the High Court, a 3Judge Bench by majority upheld the
validity of G.O. Aggrieved by the same, the appeals have been
preferred.
6. The majority view opined that historically scheduled areas were
treated specially, and affirmative action taken was in the
constitutional spirit. The notification was a step for increasing literacy
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in the scheduled areas and also aimed at providing the availability of
teachers in every school in the scheduled areas. 100% reservation can
be sustained on the ground that it was based on intelligible differentia,
and the classification has nexus with the object sought to be achieved.
The G.O. became necessary considering the phenomenal absenteeism
of the teachers in the schools situated in the scheduled areas and was
a step in aid to promote educational developments of tribals. In
extraordinary situations, reservation can exceed 50%. The Governor
possessed the power to issue the impugned notification under
Schedule V, para 5(1) of the Constitution. The same overrides all other
provisions of the Constitution, including Part III of the Constitution of
India.
7. The High Court in the minority view opined that providing 100%
reservation for Scheduled Tribes in scheduled areas offends the spirit
of Articles 14 and 16 of the Constitution of India. The Governor is not
conferred power to make any law in derogation to Part III or other
provisions of the Constitution of India in the exercise of his power
under Clause I, Para 5 of Schedule V. It was also held that G.O.Ms.
No.3 is discriminatory as the same adversely affects not only the open
category candidates but also other Scheduled Castes, Scheduled
Tribes, and backward classes. It also opined that the reservation
under Article 16(4) should not exceed 50%. However, little relaxation
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was permissible. The rules made under Article 309 of the Constitution
could not be treated as an Act of Parliament or State Legislature.
8. G.O.Ms. No.3 dated 10.1.2000, validity of which is questioned,
reserved all posts in the educational institutions within the scheduled
areas in favour of the local Scheduled Tribes. The order is extracted
hereunder:
"Whereas, under sub-paragraph (1) of paragraph 5 of the Fifth
Schedule to the Constitution of India, the Governor of Andhra
Pradesh may by public notification direct that any particular Act
of Parliament or of Legislature of the State shall not apply to the
Scheduled Areas or any part thereof in the State or shall apply to
a scheduled area or any part thereof subject to specified
exceptions and modifications;
2. AND WHEREAS, in G.O.Ms.No.275, Social Welfare
Department dated 5.11.1986, a notification has been issued
exercising the powers conferred under sub-paragraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution of India
directing that the posts of teachers in the Educational Institutions
in the Scheduled Areas of State shall be filled in only by the
local members of the Scheduled Tribes;
3. AND WHEREAS, the Andhra Pradesh Administrative
Tribunal in its order dated 25.8.1989 in R.P.Nos.6377 and 6379
of 1988 quashed the orders issued in G.O.Ms.No.275, Social
Welfare Department dated 5.11.1986 on the ground that the
notification issued under sub-paragraph (1) of paragraph 5 of the
Fifth Scheduled to the Constitution of India does not reflect the
existence of either a State or a Central Legislation referable for
issuing such notification;
4. AND WHEREAS, the Division Bench of the High Court of
Andhra Pradesh in its judgement dated 20-8-1997 in Writ Appeal
No.874 of 1997 filed by the Project Officer, I.T.D.A.,
Rampachodayaram, East Godavari District, directed to continue
the petitioners respondents in their respective posts of teachers
without any break as temporary employees until replaced by the
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qualified local tribals as and when such tribals are available to
fill up those posts;
5. AND WHEREAS, the Andhra Pradesh Administrative
Tribunal subsequently while disposing of O.A.No.4598/97 in its
order dt.22.9.1997 directed the respondents to follow the
statutory rules while making recruitment to the posts of
Secondary Grade Teachers and also Telugu Pandits, Grade. I in
Agency Areas without taking into consideration of the orders
issued in G.O.Ms.No.275, Social Welfare Department, dated
5.11.1986.
6. AND WHEREAS, the Supreme Court of India while allowing
Civil Appeal No.6437/98 in its order dated 18th December 1998,
set aside the orders of the Andhra Pradesh Administrative
Tribunal on the ground that the State withdraw the appeals
arising out of the S.L.P. Nos.14562-63 of 1989:
7. AND WHEREAS, the Government considers that rule 4 (b) of
the Andhra Pradesh School Educational Subordinate Service
Rules, 1992 and rule 22A of the Andhra Pradesh State and
Subordinate Service Rules, 1996 shall be modified to the extent
that only Scheduled Tribe Women shall be appointed in
Scheduled Areas against 33 1/3% reservation in respect of
direct recruitment;
8. AND WHEREAS, the consultation of the Tribes Advisory
Council has been made as required under sub-paragraph (5) of
paragraph 5 of the Fifth Schedule to the constitution of India.
9. AND WHEREAS, the Government of Andhra Pradesh in
order to strengthen the educational infrastructure in the
Scheduled Areas, to promote educational development of
Tribals, to solve the phenomenal absenteeism of Teachers in the
Schools situated in Scheduled Areas and with a view to protect
the interests of local tribals have decided to reserve the posts of
teachers in favour of local Scheduled Tribes candidates;
10. AND WHEREAS, the Government considered to re-issue the
said orders retrospectively from 5.11.1986 keeping in view the
provisions of sub-paragraph (1) of paragraph 5 of Fifth Schedule
to the Constitution;
11. The following notification will be published in part-IV-B
Extraordinary issue of the Andhra Pradesh Gazette, dated
10.1.2000.
NOTIFICATION
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In exercise of the power conferred by subparagraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution of India
and in Supersession of the notification issued in G.O.Ms.No.275,
Social Welfare Department, dated the 5th November 1986, as
subsequently amended in G.O. Ms. No.73, Social Welfare
Department, dated the 25th April 1988, the Governor of Andhra
Pradesh hereby directs that sections 78 and 79 of the Andhra
Pradesh Education Act, 1982 (Act 1 of 1982) and sections 169,
195 and 268 of the Andhra Pradesh Panchayat Raj Act, 1994
(Act 13 of 1994) and rule 4 (a) of the Andhra Pradesh School
Educational Subordinate Service Rules issued in G.O.Ms.No.538
Education (Ser. II) Department, dated the 20th November 1998
and rule 22 and 22A of the Andhra Pradesh State and
Subordinate Service Rules, 1996 and any other rules made in this
regard shall apply to the appointment of posts of teachers in
schools situated, in the Scheduled areas in the State subject to the
modification that all the posts of teachers in the Schools situated
in Scheduled Areas in the State of Andhra Pradesh shall be filled
in by the local Scheduled Tribe candidates only out of whom 33
1/3% shall women.
EXPLANATION:- For the purpose of this notification, the 'Local
Scheduled Tribe Candidate' means, the candidate belonging to
the Scheduled Tribes notified as such under article 342 of the
Constitution of India and the candidates themselves or their
parents have been continuously residing in the scheduled areas
of the Districts in which they are residents till to date since the
26th January 1950."
(emphasis supplied)
9. In the notification various provisions have been mentioned.
Section 78 of the A.P. Education Act, 1982 provides for the
constitution of educational service. It confers power upon the
Governor to make rules to regulate the classification, methods of
recruitment, conditions of service, pay and allowances and discipline
and conduct of the members of the educational service. Section 79
inter alia deals with dismissal, removal, reduction in rank and
suspension of the employees of private institutions. Section 169 of the
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A.P. Panchayat Raj Act, 1994 deals with creation of the posts of
officers and employees of the Mandal Parishad, the method of
recruitment and conditions of service. Section 195 of the A.P.
Panchayat Raj Act, 1994, provides for creation of posts of officers and
employees of Zilla Parishad, the method of recruitment, conditions of
service, etc. Section 268 of the said Act empowers the Government to
make rules.
10. The Andhra Pradesh State and Subordinate Service Rules, 1996
referred to in the notification were made by the State in exercise of the
power conferred under proviso to Article 309 of the Constitution of
India. Rule 22 of the Andhra Pradesh State and Subordinate Service
Rules, 1996 provides for reservation. Rule 22 is extracted hereunder:
“Special Representation (Reservation): (1) Reservation may be
made for appointments to a service, class or category in favour
of Scheduled Castes, Scheduled Tribes, Backward Classes,
Women, Physically handicapped, Meritorious Sportsman, ExServicemen and such other categories, as may be prescribed by
the Government from time to time, to the extent and in the
manner specified hereinafter in these rules or as the case may be,
in the special rules. The principle of reservation as hereinafter
provided shall apply all appointments to a service, class, or
category.
(i) by direct recruitment, except where the Government by a
General or Special Order made in this behalf, exempt such
service, class or category;
(ii) otherwise than by direct recruitment where the special rules
lay down specifically that the principle reservation in so far as it
relates to Scheduled Castes and Scheduled Tribes only shall
apply to such services, class, or category to the extent specified
therein.
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(2)(a) The unit of appointments for the purpose of this rule shall
be one hundred vacancies, of which, fifteen shall be reserved for
scheduled for Scheduled Castes, six shall be reserved for
Scheduled Tribes, twenty-five shall be reserved for the
Backward Classes and the remaining fifty-four appointments
shall be made on the basis of open competition and subject to
Rule 22-A of these rules.
(e) Appointments under this rule shall be made in the order of
rotation specified below in a unit of hundred vacancies.
Rule 22-A: Women reservation in appointments:
Notwithstanding anything contained in these rules or special
rules or Ad hoc Rules:
(1) In the matter of direct recruitment to posts for which women
are better suited than men, preference shall be given to women:
Provided that such absolute preference to women shall not
result in total exclusion of men in any category of posts.
(2) In the matter of direct recruitment to posts for which women
and men are equality suited, there shall be reservation to women
to an extent of 33 1/3 % of the posts in each category of Open
Competition, Backward Classes (Group-A), Backward Classes
(Group-B), Backward Classes (Group-C), Backward Classes
(Group-D), Scheduled Castes, Scheduled Tribes and Physically
Handicapped and Ex-Servicemen quota.
(3) In the matter of direct recruitment to posts which are reserved
exclusively for being filled by women, they shall be filled by
women only.”
Six per cent reservation has been provided in the State for
Scheduled Tribes.
11. The A.P. Regulation of Reservation and Appointment to Public
Services Act, 1997, was enacted to ensure that the reservation
mandated under Rule 22 is followed scrupulously. The Act intended to
punish the officers for violation of the rules of reservation. The Act did
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not provide any percentage of the reservation to the Scheduled Castes,
Scheduled Tribes, and the backward classes. The reservations were
provided under Rules 22 and 22A of the Rules framed under Article
309.
ARGUMENTS
12. It was submitted by Mr. C.S.N. Mohan Rao, Mr. G. Ramakrishna
Prasad and Mr. G.V.R. Choudhary, learned counsel and other learned
counsel for the appellants that the limited legislative power is
conferred on the Governor to modify the existing legislation made by
the Parliament or the State legislature under Para 5(1) of the Fifth
Schedule to the Constitution. The power to make regulation was
conferred under Para 5(2) of Schedule V. Under Para 5(1), there is no
such legislative power. The earlier G.O.Ms. of 1986 was quashed. After
that, the appeal preferred in this Court was withdrawn, and fresh G.O.
was issued, again perpetuating the illegality by providing a 100%
reservation.
13. Learned counsel for the appellants argued that Article 371D of
the Constitution contains special provisions concerning the State of
Andhra Pradesh, which has now been amended for Andhra Pradesh as
well as Telangana. After reorganisation of the States, the Article has
been amended in its application to Andhra Pradesh as well as
Telangana. Article 371D was promulgated given the geographical
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disparities in the arena of public employment in the State of Andhra
Pradesh as candidates from certain districts were capturing a
disproportionately large number of posts, as such by way of the
Presidential Order issued under the said provisions, local cadres were
created for different parts of the State. The Presidential Order provided
for reservation on district/zonal basis for different posts. A
district/zone as the case may constitute a local area. A district is a
unit for teachers, and all the posts have been ordered to be filled by
scheduled tribe candidates in the scheduled areas in several districts.
14. Learned counsel for the appellants argued that as per the
Presidential Order issued under Article 371D, aspiring candidates
could not apply outside the district or zone, as the case may be. Thus,
the incumbents cannot apply outside their districts where they are
residing. Their chances of obtaining public employment as against the
posts of teachers have been taken away. Thus, the G.O. transgresses
the Presidential Order issued under Article 371D of the Constitution
as such the same is unconstitutional and could not prevail.
15. Learned counsel for the appellants further argued that providing
100% reservation is not permissible because of the catena of decisions
rendered by this Court, to be referred later. Learned counsel
vehemently argued that it is an unfortunate reality that the lawmakers are resorting to reservations on political basis catering to vote
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bank, thereby ignoring the constitutional mandate to which they owe
allegiance. The reservation so provided is against the wishes of the
founding fathers of the Constitution. The reason employed of chronic
absenteeism in the schools, could not have been made the fulcrum
justifying 100% reservation. Merit has been ignored and whittled
down. The noble profession of teaching cannot be demeaned. There
cannot be a compromise with the standard of education in the garb of
cent percent reservation, and merit is a casualty. It tantamounts to
reverse discrimination. It cannot be said to be a case of classification,
but it is a case of reservation. It is highly unfair and unreasonable
action. The Constitution of India does not permit 100% reservation in
respect of any particular class or category to the total exclusion of
others. Reservation set out under Article 16 should not exceed the
limit of 50%.
16. The G.O. would be counterproductive to the aim of the
Constitution in providing protective legislation, and the main thrust of
the reservation is to bring in the disadvantaged classes into the
mainstream of the society at large. The idea of the tribal students to be
taught by tribal teachers in the scheduled areas is akin to
compromising with the merit and quality of education and further put
the tribal children at a disadvantage and segregate them from the
mainstream. Regarding the language barrier, learned counsel
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argued that qualifications for teachers could be provided that they
should know the local language, a resident of a district invariably
knows the local language. In the impugned notification, no such
aspect was mentioned.
17. Learned counsel on behalf of the appellants further argued that
Rules 22 and 22A of the Andhra Pradesh State and Subordinate
Service Rules, 1996 provides for reservation framed under proviso to
Article 309 of the Constitution. The legislature did not frame them.
Thus, it could not have been amended or modified by the Governor in
exercise of the power under Para 5(1) of Schedule V to the
Constitution being subordinate legislation. That apart, it was argued
that no new law could have been created within the realm of Para 5(1)
of Schedule V. The Acts mentioned in G.O.Ms. No.3/2000 did not deal
with reservation. The Act of 1997, provided for the reservation, was
not amended. Even by amending the same, 100% reservation could
not have been provided.
18. The classification created within the scheduled tribes to benefit
only the candidates or their parents continuously residing in the
scheduled areas since 26.1.1950 is arbitrary, illegal, and
discriminatory visàvis the scheduled tribes also, besides other
categories. The executive order could not have provided the
reservation. The legislation was imperative to provide for a 100%
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reservation. Testing the case on the anvil of the doctrine of basic
structure is not germane as it is not a case set up that provisions
under Para 5 of Schedule V are against the basic structure of the
Constitution. The provisions of Para 5 of Schedule V are not
questioned, but only the legality of the action taken thereunder. The
right of judicial review is available in case of any action taken, which
is per se illegal, arbitrary or violative of fundamental rights and sans
any basis.
19. Concerning the nonobstante clause, it was argued that the
order under Para 5 of Schedule V could not have been issued in
contravention of Article 371D. It contravened the Presidential order.
20. Dr. Rajeev Dhawan, learned senior counsel appearing for the
respondents, argued that the Constitution has a solicitude for
scheduled castes and scheduled tribes under various provisions
contained in Articles 15 and 16 and the Directive Principles contained
in Articles 37, 38, 47 and 51(A). There are special provisions carved
out providing reservation to SCs/ STs; there is National Commission
for Scheduled Tribes, Article 330 provides reservation of seats for SC/
ST in House of People, Article 332 provides reservation in State
Assemblies, Article 335 provides to consider the claim of SCs/STs to
services, Article 338 provides for the constitution of National
Commission for Scheduled Castes and Article 338A provides for the
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constitution of National Commission for Scheduled Tribes. Articles
339, 341, 342 and 334, are other provisions relating to SCs/ STs.
Articles 343D and 343(T)(h) provide reservation for SC/ST in
Panchayats.
21. Learned senior counsel further argued that India's Constitution
is symmetrical and spatial for SCs/STs. In that view, the scheduled
areas are constituted under the provisions of Article 244 and
Schedules V and VI. The Constitution creates special classification.
Equality is a concept of antiarbitrariness. The normal rule of 50%
reservation can be relaxed in appropriate cases that have precisely
been done by the Governor. Reservation can be made by executive
order. Reservations cannot be termed to be antimeritarian. He urged
that the reservations were provided due to discrimination,
disadvantage, and to share the State power. Elaborately referred to the
decision in Indra Sawhney & Ors. v. Union of India & Ors., (1992)
Supp. 3 SCC 217, it was argued that reservations could be
rectified/revised. It is not permissible to subdivide the SCs and STs.
Article 16(4) aims at group backwardness. Strictly speaking, the
constitution of a Commission to enquire is not necessary for providing
further reservations, particularly for scheduled tribes in the scheduled
areas. The scope of judicial review is limited in such matters. He
referred to various dictums to be adverted to later.
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22. Dr. Rajeev Dhawan, learned senior counsel, lastly argued that
G.O.Ms. No.3/2000 is constitutionally valid, and the Court may, if so
advised, issue directions to the States to maintain oversight. The
purposes of Article 371D and Para 5 of Schedule V are entirely
different. He further argued that to trickle down the necessary
benefits, the remedy lies in following what is inelegantly called the
"bottoms up" approach. The malady can be addressed by empowering
Gram Sabhas, ensuring the right to information, and strengthening its
implementation. Learned senior counsel alternatively argued that in
case this Court concludes that the G.O. is to be quashed, the
appointments made should not be disturbed.
23. Shri R. Venkataramani, learned senior counsel appearing for the
State of Andhra Pradesh, argued that the scheme of Schedule V, as a
whole, deserves to be dealt with on a special constitutional footing,
that is an exclusive constitutional enclave, free in its ambit to ensure
the promotion of the interests, concerns and the development of
scheduled areas. Paras 2 and 5 of the Fifth Schedule constitute its
essence. Para 2 enacts limitations on the executive power of the State
concerning the scheduled areas. Para 5 is a composite and particular
species of the enabling power, conferring on the Governor, legislative,
and administrative powers. The legislative and administrative powers
run seamlessly. For instance, the power under clause (1) of Para 5 to
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extend a Central or State legislation to the scheduled area, "subject to
exceptions and modifications," confer a power to amend the
legislation. The power under clauses (1) and (2) operates in distinct
fields to achieve distinct purposes, each of them wide in their way. The
object to be achieved under clause (1) is to evaluate and assess the
relevance, fitness, or inappropriateness of any law in their application
to scheduled areas, the domain of policy with considerable latitude to
bring into force with modifications and exceptions any law.
24. Shri R. Venkataramani, learned senior counsel further argued
that the scheduled areas and the tribes constitute a special class. This
special homogenous class can always be dealt with on a special basis.
The G.O. was not issued to favour the local scheduled tribes or to
discriminate against others intentionally. It was passed to advance the
educational interests of the scheduled areas, even if it otherwise
impinges upon the claims under Article 14 or 16(1), cannot be faulted.
Even if the G.O. advances a class interest, it cannot be subjected to
scrutiny under Articles 14 and 16(1).
25. Shri R. Venkataramani further argued that there is no conflict
between Article 371D and Schedule V. The two operate in distinct
fields and achieve different purposes. The socioeconomic experiments
drafted by the legislatures, and in this case by the Governor, cannot
be subjected to judicial scrutiny. It is wrong to suggest that the non
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obstante clause in Article 371D can annul the nonobstante clause
in Para 5 of the Fifth Schedule. Firstly, the two constitutional
provisions operate in distinct domains. Article 371D was not enacted
to be a superimposition on Schedule V. Secondly, it is well settled that
if the object and purpose of legislation or provisions with respective
nonobstante clauses are distinct, the Court would not see any
conflict.
26. Shri R. Venkataramani, learned senior counsel, also argued that
Schedule V is a complete Code by itself. It is not a case of reservation
at all. It is a classification made to ensure that the schools in the
scheduled areas function and promote the educational interest of the
tribal populace. The Governor took cognizance of the general nonavailability of teachers. The notification by prescribing that the
Scheduled Tribe teachers of the local areas should be the exclusive
component of the teaching element was looking at the local scheduled
tribe teacher as the best possible tool for ensuring the educational
interest of the scheduled areas. Learned senior counsel has referred to
various decisions, to be adverted later.
27. Learned senior counsel further pointed out that the scheduled
area is extended over 31,485 sq. km. which is about 11% of the total
area of the State with more than 5938 villages distributed in
Srikakulam, Vizianagaram, Visakhapatnam, East Godavari, West
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Godavari, Khammam, Warangal, Adilabad and Mahaboobnagar
Districts. Scheduled Tribe students are at a disadvantageous position.
The nonattendance of teachers was more in the scheduled areas, so
to provide the facility of teaching, classification has been made. It
cannot be said to be a case of providing reservations. The Government
of Andhra Pradesh, Department of Tribal Welfare, has established
various categories of educational institutions to cater to the needs of
Scheduled Tribes children in the State.
28. Learned senior counsel further submitted that the Government
of Andhra Pradesh, Department of Tribal Welfare, established various
categories of educational institutions to cater to the needs of
Scheduled Tribes children in the State, such as Gurukula Pathasalas,
Ashram schools, and residential, educational institutions, and the
method of appointment of the local tribe has yielded good results.
29. Shri B. Adinarayana Rao, learned senior counsel appearing for
the State of Telangana, pointed out the history of scheduled areas
Ganjam and Vizagapatnam. The Act of 1839 declared agency areas of
Madras Presidency, providing for separate administration of
tribals/agency areas. In 1874, the Scheduled Districts Act, XIV was
passed, which had a schedule in which the territories were mentioned,
inhabited by tribals as such. Rules were issued for administering the
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areas by the Governor GeneralinCouncil to the exclusion of ordinary
laws. The Government of India Act, 1919, had made "wholly excluded
and partially excluded areas for reform" and kept them under the
administration of Governor GeneralinCouncil, with a separate
application of laws. The Government of India Act, 1935, had extended
the same. Thus, historically, the scheduled areas were governed by
special laws. They cannot be compared with areas generally
administered by the Act of legislatures. Special provisions have been
made in Schedule V. The order issued by the Governor has to be
treated as legislation. The application of laws is one of the recognised
forms of legislation. The order of Governor can only be tested on the
parameters of competence and violation of the Constitution. It cannot
be tested on the touchstone of ideal norms. It achieves the purpose of
Article 46 of the Constitution.
30. Shri B. Adinarayana Rao, learned senior counsel, has further
argued that forests or hills separate scheduled areas from other areas.
Notified tribes inhabit them. There are some nontribals in the
scheduled areas. In spite of their stay/residence, the nontribals
cannot acquire by sale, purchase, lease, or otherwise, the lands in the
scheduled areas and legislations imposing such restrictions have been
held to be constitutional by this Court in various decisions. The tribal
customs, culture, traditions, and personal laws need to be protected
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and preserved. They speak their dialect in their habitations. Due to
inaccessibility and lack of facilities, the teachers appointed in
scheduled areas are not attending the schools, leading to chronic
absenteeism. The experiment has resulted in fulfilling the desired
objectives. There has been a significant increase in literacy among
tribals.
There is no repugnancy with the Presidential Order issued under
Article 371D. Article 371D(10) provides for the nonobstante clause to
make the provisions immune from challenge under Articles 14 and 16
of the Constitution of India. The provisions made in Para 5 of
Schedule V have to be viewed on a similar anvil.
31. Shri Shivam Singh, learned counsel appearing on behalf of some
of the respondents, argued that the basic structure doctrine is
inapplicable, the original constitutional text must not be employed to
test the impugned action. Schedule V under Article 244(1) of the
Constitution is part of the original text. Hence, it must not be tested
on the touchstone of the basic structure violation. He argued by
referring to the decisions of this Court that the constitutional
amendments post1973 can be struck down if they violate the basic
structure doctrine and not the original text of the Constitution. The
nonobstante clause in Para 5(1) Schedule V continues to hold and
occupy the field. The rigours of the basic structure doctrine may hit
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Article 371D but cannot affect Schedule V. Article 14 cannot be used
to defeat intendment of the nonobstante clause of Schedule V.
32. Shri Shivam Singh, learned counsel, further argued that in case
of conflict between nonobstante clauses, as far as possible, they must
be harmoniously construed. The provision enacted later prevails over
the one enacted earlier. If the latter provision is found to be generic as
against the earlier provision, then the earlier provision has to prevail.
33. Learned counsel has further canvassed that as the Governor has
the power to frame the regulations, the power extends to subordinate
legislation also. Subordinate legislation has to be treated as part of the
legislation itself. Regulations must be treated as part of the statute
itself. In the power to modify and create exceptions in exceptional
circumstances to provide a 100% reservation is permissible. There is
minimal scope for judicial review. The notification contemplated a
classification under Article 16(1) not a reservation under Article 16(4)
issued to provide impetus to scheduled areas in the field of education;
to strengthen educational infrastructure, to promote the educational
development of tribals; to prevent phenomenal absenteeism of
teachers in the schools in the scheduled areas from teaching tribals.
The conditions of eligibility and cutoff date to avail the benefit of
23
reservation are reasonable to further strengthen the educational
infrastructure development and other problems faced in the area.
In Re: Question No.1: What is the scope of Para 5(1) of Schedule V
of the Constitution of India?; and Question No.1(a): Does the
provision empower the Governor to make a new law?
34. The Fifth Schedule finds reference in Article 244 of the
Constitution of India. Article 244 deals with the administration of
scheduled areas and tribal areas. It is provided that the provisions of
Schedule V shall apply to the administration of scheduled areas.
Article 244 is extracted hereunder:
“Article 244. Administration of Scheduled Areas and Tribal
Areas.— (1) The provisions of the Fifth Schedule shall apply to
the administration and control of the Scheduled Areas and
Scheduled Tribes in any State other than the States of Assam
Meghalaya, Tripura, and Mizoram.
(2) The provisions of the Sixth Schedule shall apply to the
administration of the tribal areas in the State of Assam,
Meghalaya, Tripura and Mizoram."
35. Article 244 excludes Assam, Meghalaya, Tripura, and Mizoram
from Schedule V, and they are included as per Article 244(2) in
Schedule VI. Schedule V in extenso is extracted hereunder:
“FIFTH SCHEDULE
[Article 244(1)]
PROVISIONS AS TO THE ADMINISTRATION AND
CONTROL OF SCHEDULED AREAS AND
SCHEDULED TRIBES
PART A
GENERAL
24
“1. Interpretation.—In this Schedule, unless the context
otherwise requires, the expression ‘State’ does not include the
States of Assam, Meghalaya, Tripura, and Mizoram.
2. Executive power of a State in Scheduled Areas.— Subject
to the provisions of this Schedule, the executive power of a State
extends to the Scheduled Areas therein.
3. Report by the Governor to the President regarding the
administration of Scheduled Areas.—The Governor of each
State having Scheduled Areas therein shall annually, or
whenever so required by the President, make a report to the
President regarding the administration of the Scheduled Areas in
that State and the executive power of the Union shall extend to
the giving of directions to the State as to the administration of
the said areas.
PART B
ADMINISTRATION AND CONTROL OF SCHEDULED
AREAS AND SCHEDULED TRIBES
4. Tribes Advisory Council.—(1) There shall be established in
each State having Scheduled Areas therein and, if the President
so directs, also in any State having Scheduled Tribes but not
Scheduled Areas therein, a Tribes Advisory Council consisting of
not more than twenty members of whom, as nearly as may be,
three-fourths shall be the representatives of the Scheduled Tribes
in the Legislative Assembly of the State:
Provided that if the number of representatives of the
Scheduled Tribes in the Legislative Assembly of the State is less
than the number of seats in the Tribes Advisory Council to be
filled by such representatives, the remaining seats shall be filled
by other members of those tribes.
(2) It shall be the duty of the Tribes Advisory Council to
advise on such matters pertaining to the welfare and
advancement of the Scheduled Tribes in the State as may be
referred to them by the Governor.
(3) The Governor may make rules prescribing or regulating,
as the case may be,
(a) the number of members of the Council, the mode of their
appointment and the appointment of the Chairman of the
Council and of the officers and servants thereof;
(b) the conduct of its meetings and its procedure in general; and
(c) all other incidental matters.
5. Law applicable to Scheduled Areas.—(1) Notwithstanding
anything in this Constitution, the Governor may by public
notification direct that any particular Act of Parliament or of the
25
Legislature of the State shall not apply to a Scheduled Area or
any part thereof in the State or shall apply to a Scheduled Area or
any part thereof in the State subject to such exceptions and
modifications as he may specify in the notification and any
direction given under this sub-paragraph may be given so as to
have retrospective effect.
(2) The Governor may make regulations for the peace and
good government of any area in a State which is for the time
being a Scheduled Area.
In particular and without prejudice to the generality of the
foregoing power, such regulations may—
(a) prohibit or restrict the transfer of land by or among members
of the Scheduled Tribes in such area;
(b) regulate the allotment of land to members of the Scheduled
Tribes in such area;
(c) regulate the carrying on of business as money-lender by
persons who lend money to members of the Scheduled Tribes
in such area.
(3) In making any such regulation as is referred to in subparagraph (2) of this paragraph, the Governor may repeal or
amend any Act of Parliament or of the Legislature of the State or
any existing law which is for the time being applicable to the
area in question.
(4) All regulations made under this paragraph shall be
submitted forthwith to the President and, until assented to by
him, shall have no effect.
(5) No regulation shall be made under this paragraph unless
the Governor making the regulation has, in the case where there
is a Tribes Advisory Council for the State, consulted such
Council.
PART C
SCHEDULED AREAS
6. Scheduled Areas.—(1) In this Constitution, the expression
‘Scheduled Areas’ means such areas as the President may by
order declare to be Scheduled Areas.
(2) The President may at any time by order—
(a) direct that the whole or any specified part of a Scheduled
Area shall cease to be a Scheduled Area or a part of such
an area;
(aa) increase the area of any Scheduled Area in a State after
consultation with the Governor of that State;]
(b) alter, but only by way of rectification of boundaries, any
Scheduled Area;
(c) on any alteration of the boundaries of a State or on the
admission into the Union or the establishment of a new
26
State, declare any territory not previously included in any
State to be, or to form part of, a Scheduled Area;
(d) rescind, in relation to any State or States, any order or
orders made under this paragraph, and in consultation with
the Governor of the State concerned, make fresh orders
redefining the areas which are to be Scheduled Areas,
and any such order may contain such incidental and
consequential provisions as appear to the President to be
necessary and proper, but save as aforesaid, the order made
under sub-paragraph (1) of this paragraph shall not be varied by
any subsequent order.
PART D
AMENDMENT OF THE SCHEDULE
7. Amendment of the Schedule.—(1) Parliament may from time
to time by law amend by way of addition, variation or repeal any
of the provisions of this Schedule and, when the Schedule is so
amended, any reference to this Schedule in this Constitution
shall be construed as a reference to such Schedule as so
amended.
(2) No such law as is mentioned in sub-paragraph (1) of this
paragraph shall be deemed to be an amendment of this
Constitution for the purposes of article 368.”
36. The State can exercise executive power in scheduled areas.
However, the same is subject to the provisions of the Schedule. Para 3
of Schedule V provides for the continuous interplay between the
Governor and the President. The Governor has to send an Annual
Report or at any time whenever so required by the President. The
Governor is bound to report to the President regarding the
administration of the scheduled areas, and in the exercise of executive
power, the Union Government can issue directions to State as to the
administration of the scheduled areas.
37. The object of para 5 of Schedule V is to establish an egalitarian
society and to ensure socioeconomic empowerment to the Scheduled
27
Tribes as held in Samatha v. State of A.P. & Ors., (1997) 8 SCC 191
thus:
“71. Thus, the Fifth and Sixth Schedules, an integral scheme of
the Constitution with direction, philosophy and anxiety is to
protect the tribals from exploitation and to preserve valuable
endowment of their land for their economic empowerment to
elongate social and economic democracy with liberty, equality,
fraternity and dignity of their person in our political Bharat.”
38. Para 4 of Schedule V to the Constitution of India provides for the
formation of Tribes Advisory Council for administration and control of
the scheduled areas and scheduled tribes. Para 4(2) enables the
Advisory Council to advise on such matters pertaining to the welfare
and advancement of the scheduled tribes in the State as may be
referred to them by the Governor. The Governor has the power to
make rules, regulations as to the number of members of the Tribes
Advisory Council, the mode of their appointment, conduct of meetings,
and other incidental matters.
39. Para 5 of Schedule V deals with the law applicable to the
scheduled areas. It contains a nonobstante clause and authorises the
Governor to issue a notification to the effect that any particular Act of
the Parliament or of the State Legislature shall not apply to a
scheduled area or any part thereof. It also empowers the Governor to
create exceptions and modifications as he may specify in the
notification concerning the applicability of such Act of Parliament or
legislature of the State. The Governor is empowered to issue
28
notification giving it retrospective effect. It is apparent that the law
contained in the Act can be modified by the Governor or can be
excluded in its application from the scheduled area or any part of it.
Thereupon such Act, hence, of the Parliament or the State Legislature
can be applied with exceptions and modifications to the scheduled
area. Para 5(1) confers power upon the Governor not concerning the
only exclusion of Act of Parliament or the State but to modify or create
exceptions.
(a) Para 5(1) of Schedule V does not confer upon Governor power to
enact a law but to direct that a particular Act of Parliament or the
State Legislature shall not apply to a scheduled area or any part
thereof or shall apply with exceptions and modifications, as may be
specified in the notification. The Governor is not authorised to enact a
new Act under the provisions contained in para 5(1) of Schedule V of
the Constitution. Area reserved for the Governor under the provisions
of para 5(1) is prescribed. He cannot act beyond its purview and has to
exercise power within the four corners of the provisions.
(b) Para 5(2) of Schedule V deals with the power of the Governor to
make regulations for the peace and good government in a scheduled
area of a State. The Governor has to obtain the advice of the Tribes
Advisory Council in the matters pertaining to Para 5(2), if it has been
constituted. The Governor is expressly authorised to prohibit or
restrict the transfer of land by any member of scheduled tribes and
29
also regulate the allotment of land to the members of the Scheduled
Tribes in the Scheduled Areas. Para 5(3) provides that while making
any such regulations as mentioned in Para 5(2), the Governor has the
power to repeal or amend any Act of Parliament or the legislature of
the State or any existing law which is for the time being applicable to
the area in question, but that is for peace and good governance of the
scheduled area. The regulation made by the Governor to be effective is
required to be assented by the President. Prior assent of the President
is mandatory for regulation to be put into effect. There is a further
rider on the regulatory power of the Governor provided by Para 5(5). In
case Tribes Advisory Council has been constituted before making any
regulation, the Governor is dutybound to consult such Council. No
regulation can be made without consultation with the Council in case
it has been formed.
40. The Act of Parliament or the appropriate legislature applies to
the scheduled areas. The Governor has the power to exclude their
operation by a notification. In the absence thereof, the Acts of the
legislature shall extend to such areas. In Jatindra v. Province of Bihar,
(1949) FLJ 225, it was held that the power of the Governor under para
5 is a legislative power and Governor is empowered to change or
modify the provisions of the Act or the section as he deems fit by way
of issuing a notification. The power under para 5(1) is limited to the
30
application of the Governor's decision to apply an Act or making
modification or creating exceptions. Though the power is legislative to
some extent, that is confined to applicability, modification, or creating
exceptions concerning the Act of the Parliament or the State. While
para 5(2) confers the power of independent legislation, the Governor
has plenary power of framing regulations for the peace and good
governance of a scheduled area. He is the repository of faith to decide
as to the necessity. The Governor is empowered by para 5(3) to repeal
or amend any Act of Parliament or State Legislature, following the
procedure prescribed therein, in exercise of making regulations as
provided under para 5(2) of Schedule V. The aspect of power was
considered in Ram Kirpal Bhagat and Ors. v. The State of Bihar, (1969)
3 SCC 471 thus:
“21. The second question which falls for consideration is
whether the Bihar Regulation I of 1951 is in excess of the
Governor’s powers. The contentions were: first, that the
Regulation I of 1951 could not at all have been made; secondly,
that Regulations deal with the subject-matter and did not mean
power to apply law and thirdly, the power to extend a law passed
by another legislature was said to be not a legislative function,
but was a conditional legislature. The legislation, in the present
case, is in relation to what is described as Scheduled Areas. The
Scheduled Areas are dealt with by Article 244 of the Constitution
and the Fifth Schedule to the Constitution. Prior to the
Constitution, the excluded areas were dealt with by Sections 91
and 92 of the Government of India Act, 1935. The excluded and
the partially excluded areas were areas so declared by order in
Council under Section 91 and under Section 92. No act of the
Federal Legislature or of the Provincial Legislature was to apply
to an excluded or a partially excluded area unless the Governor
by public notification so directed. Sub-section (2) of Section 92
of the Government of India Act, 1935 conferred power on the
Governor to make regulations for the peace and good
31
government of any area in a Province which was an excluded or
a partially excluded area and any regulations so made might
repeal or amend any Act of the Federal Legislature or the
Provincial Legislature or any existing Indian law which was for
the time being applicable to the area in question. The extent of
the legislative power of the Governor under Section 92 of the
Government of India Act, 1935 in making regulations for the
peace and good government of any area conferred on the
Governor in the words of Lord Halsbury "an utmost discretion of
enactment for the attainment of the objects pointed to." (See Riel
v. Queen, LR 10 AC 657 at 658)). In that case the words which
fell for consideration by the Judicial Committee were “the power
of the Parliament of Canada to make provisions for the
administration, peace, order and good government of any
territory not for the time being included in any province”. It was
contended that if any legislation differed from the provisions
which in England had been made for the administration, peace,
order and good government then the same could not be sustained
as valid. That contention was not accepted. These words were
held to embrace the widest power to legislate for the peace and
good government for the area in question.
22. The Fifth Schedule to the Constitution consists of 7 paras and
consists of Parts A, B, C and D. Para 6 in Part C deals with
Scheduled Areas as the President may by order declare and there
is no dispute in the present case that the Santhal Parganas falls
within the Scheduled Areas. Para 5 in the Fifth Schedule deals
with laws applicable to Scheduled Areas. Sub-para 2 of para 5
enacts that the Governor may make regulations for the peace and
good government of any area in a State which is for the time
being a Scheduled Area. Under sub-para 3 of para 5, the
Governor may repeal or amend any Act of Parliament or of the
legislature of the State or any existing law which is for the time
being applicable to the area in question. It may be stated that a
contention was advanced by counsel for the appellants that
Section 92 of the Government of India Act, 1935 was still in
operation and the Governor could only act under that section.
This contention is utterly devoid of any substance because
Section 92 of the Government of India Act, 1935 ceased to exist
after repeal of the Government of India Act, 1935 by Article 395
of the Constitution. It was contended that the power to make
regulations did not confer power on the Governor to apply any
law. It was said that under Section 92 of the Government of
India Act, 1935 the Governor could do so but under the Fifth
Schedule of the Constitution the Governor is not competent to
apply laws. This argument is without any merit for the simple
reason that the power to make regulations embraces the utmost
32
power to make laws and to apply laws. Applying law to an area
is making regulations which are laws. Further the power to apply
laws is inherent when there is a power to repeal or amend any
Act, or any existing law applicable to the area in question. The
power to apply laws is really to bring into legal effect sections of
an Act as if the same Act had been enacted in its entirety.
Application of laws is one of the recognised forms of legislation.
Law can be made by referring to a statute or by citing a statute or
by incorporating a statute or provisions or parts thereof in a piece
of legislation as the law which shall apply.
23. It was said by Counsel for the appellants that the power to
apply laws under the Fifth Schedule was synonymous with
conditional legislation. In the present case, it cannot be said that
the Bihar Regulation I of 1951 is either a piece of delegated
legislation or a conditional legislation. The Governor had full
power to make regulations which are laws and just as Parliament
can enact that a piece of legislation will apply to a particular
State, similarly, the Governor under para 5 of the Fifth Schedule
can apply specified laws to a Scheduled area. The Bihar
Regulation I of 1951 is an instance of a valid piece of legislation
emanating from the legislative authority in its plenitude of power
and there is no aspect of delegated or conditional legislation.”
(emphasis supplied)
41. In Hota Venkata Surya Sivarama Sastry and Anr. v. State of
Andhra Pradesh, (1962) 2 SCR 535: AIR 1967 SC 71, the question
came up for consideration as to the power to apply the laws under
para 5(2). This Court opined that the power to repeal or amend is
legislative, and the regulations made in exercise of this power, cannot
be said to be delegated or conditional legislation. This Court held:
“(11) It was next contended that Regulation IV of 1951 was
invalid as having outstepped the limits of the legislation
permitted by Paras 5(1) and (2) of the Fifth Schedule to the
Constitution. It was said that if the Governor desired to enact a
law with retrospective effect it must be a law fashioned by
himself, but that if he applied to the Scheduled areas a law
already in force in the State, he could not do so with
retrospective effect. Reduced to simple terms, the contention
merely amounts to this that the Governor should have repeated in
33
this Regulation the terms of the Abolition Act but that if he
referred merely to the title of the Act he could not give
retrospective effect to its provisions over the area to which it was
being applied. It is obvious that this contention was correctly
negatived by the High Court.”
42. Reliance has been placed on the decision in Edwingson Bareh v.
State of Assam and Ors., (1966) 2 SCR 770 in which the validity of the
notification issued on 23.11.1964 was in question. By the
notification, the Governor of Assam was pleased to create a new
Autonomous District to be called the Jowai District by excluding the
Jowai SubDivision of the United KhasiJaintia Hills District with
effect from 1.12.1964 and altered the boundaries. The notification
was issued by the Governor in the exercise of powers conferred on him
by paragraph 1(3) of the Sixth Schedule. This Court observed:
“It cannot, however, be disputed that as a result of the
modification made by the impugned notification, paragraph
20(2) has to be changed. Paragraph 20(2), as it originally stood,
describes in detail the territories comprised in the United KhasiJaintia Hills District, and as a result of the impugned notification,
the said description will have to be modified, because the said
District has now been split up into two Autonomous District.
That, however, is a change consequent upon the change made by
the Governor by issuing the impugned notification in exercise of
the powers conferred on him by para 1(3). In our opinion, where
the Governor makes changes by virtue of the powers conferred
on him by para. 1(3) (c), (d), (e), (f) and (g), what follows is a
change in the internal composition of the different items in Part
A of the table. The exercise of the said powers does not change,
and in the present case it has not changed, the total area
comprised in Part A. What it purports to do is to change one item
into two items of Autonomous Districts. Since the power to bring
about this change is expressly conferred on the Governor by
paragraph 1(3)(c), (d), (e), (f) and (g), it is not unreasonable to
hold that the exercise of the said power should, as in the present
case, lead to a consequential change in para 20(2). Such a change
in para 20(2) is a logical corollary of the exercise of the power
34
conferred on the Governor by para 1(3)(c), (d), (e), (f) and (g).”
43. In Samatha v. State of A.P. & Ors., (1997) 8 SCC 191, this Court
held that the executive power under Article 298 and legislative power
under Article 245 to dispose of Government property are subject to
Para 5 of Schedule V. The relevant portion is extracted hereunder:
“85. It is true, as contended by Shri Choudhary, that the
Constitution has demarcated legislative, executive and judicial
powers and entrusted them to the three wings of the State; in
particular the President/Governor of the State is to exercise the
executive power in their individual discretion. It is not subject to
legislative limitations to be done in accordance with rules of
business. In particular, the President/Governor is entrusted with
the executive power coextensive with the legislative power
enumerated in the Seventh Schedule read with Article 245 of the
Constitution. The executive power especially conferred by the
Constitution like the pleasure tenure or the power of pardoning a
convict are in our view, not apposite to the issue. The power of
the executive Government in that behalf has wisely been devised
in the Constitution and is not subject to any restriction except in
accordance with the Constitution and the law made under Article
245 read with the relevant entry in the Seventh Schedule to the
Constitution subject to the Fifth Schedule when it is applied to
Scheduled Area. The power of the Government to acquire, hold
and dispose of the property and the making of contracts for any
purpose conferred by Article 298 of the Constitution equally is
coextensive with the legislative power of the Union/State.
However, Article 244(1) itself specifies that provisions of the
Fifth Schedule shall apply to the administration and control of
the Scheduled Areas and Scheduled Tribes in any State except
the excluded areas specified therein. The legislative power in
clause (1) of Article 245 equally is “subject to the provisions of
the Constitution” i.e. Fifth Schedule. Clause (1) of para 5 of Part
B of the Fifth Schedule applicable to Scheduled Areas,
adumbrates with a non obstante clause that: “Notwithstanding
anything in the Constitution, in other words, despite the power,
under Article 298, the Governor may, by public notification
direct that any particular Act of Parliament or of the legislature
of a State shall not apply to a Scheduled Area or any part thereof
in the State or shall apply to a Scheduled Area or any part thereof
in the State, subject to such exceptions and modifications as he
may specify in the notification and any direction given under
35
clause (1) of para 5, may be given so as to have retrospective
effect.” The executive power of the State is, therefore, subject to
the legislative power under clause 5(1) of the Fifth Schedule.
Similarly, sub-para (2) thereof empowers the Governor to make
Regulations for the peace and good government of any area in a
State which is for the time being a Scheduled Area. In particular
and without prejudice to the generality of the foregoing power,
such Regulations may regulate the allotment of land to members
of the Scheduled Tribes in such area or may prohibit or restrict
the transfer of land under clause (a) by or among the members of
the Scheduled Tribes in such areas. In other words sub-para 5(2)
combines both legislative as well as executive power, clause 5(2)
(a) and (c) legislative power and clause (b) combines both
legislative as well as executive power. The word “regulation” in
para 5(2)(b) is thus of wide import.”
(emphasis supplied)
In Samatha (supra), it was held that mining leases could not
have been granted to nontribals in the Scheduled Areas even
concerning land belonging to the Government. This Court in the
aforesaid decision dealt with the prohibition on the transfer of
immovable property situated in Agency tracts by a person, whether or
not such person is a member of Scheduled Tribes or a society
composed solely of the members of the Scheduled Tribes or by a
person including inter alia State Government or State Corporations.
Transfer of Government land in Agency tracts by granting mining lease
in favour of nontribal persons was null and void. In the said case,
the tribals were granted patta in their favour for cultivation purposes,
the said aspect made the entire difference, and the prohibition on
lease came in the way of nontribal, which was upheld by this Court.
The decision is to operate in a different area. This Court upheld a
36
similar restriction in Rajasthan Housing Board v. New Pink City
Nirman Sahkari Samiti Ltd. and Anr., (2015) 7 SCC 601.
44. There is no dispute with the abovesaid proposition concerning
the protection of the transfer of land. Such provisions have been
carved out, and they have been held to be constitutionally valid. More
or less, similar provisions exist virtually in all the States. In various
States, transactions that took place relating to land of Scheduled
Tribes were statutorily annulled including decree or order of the court,
and such transactions have been declared to be void with retrospective
effect and validity of the same was upheld by this Court. But the
question here is not of the protection of the land. The idea behind
protection of land is to protect tribals, as they are isolated, and in
disadvantageous position socially as compared to nontribals. Thus,
protection has been conferred.
45. In re Art. 143 of the Constitution of India and Delhi Laws Act
(1912) etc., AIR 1951 SC 332, the Court considered the word ‘modify’
to mean alteration without radical transformation in the context in
which modification was used, it did not involve any material alteration
or substantial alteration. However, in the context of Article 370(1) of
the Constitution of India in Puranlal Lakhanpal v. President of India &
Ors., AIR 1961 SC 1519, the power is given to the President to efface
37
effect of any provision of law altogether in its application to the State
of Jammu & Kashmir. The Court observed that power to modify
should be considered in its widest possible amplitude. This Court
further considered the word ‘modify’ in the Oxford English Dictionary,
Vol. VI, to mean inter alia "to make partial changes in"; to change (as
object) in respect of some of its qualities; to alter or vary without
radical transformation”. Similar is the word 'modification,' which
means the action of making changes in an object without altering
essential nature. The Court also observed that modify just means to
alter or vary, extend, or enlarge thus:
“(4) But even assuming that the introduction of indirect election
by this modification is a radical alteration of the provisions of
Art. 81(1), the question still remains whether such a modification
is justified by the word “modification” as used in Art. 370(1). We
are here dealing with the provision of a Constitution which
cannot be interpreted in any narrow or pedantic sense. The
question that came for consideration in In re Delhi Laws Act
case, 1951 SCR 747: (AIR 1951 SC 332), was with respect to
the power of delegation to a subordinate authority in making
subordinate legislation. It was in that context that the
observations were made that the intention of the law there under
consideration when it used the word “modification” was that the
Central Government would extend certain laws to Part C States
without any radical alteration in them. But in the present case we
have to find out the meaning of the word “modification” used in
Art. 370(1) in the context of the Constitution. As we have said
already the object behind enacting Art. 370(1) was to recognise
the special position of the State of Jammu and Kashmir and to
provide for that special position by giving power to the President
to apply the provisions of the Constitution to that State with such
exceptions and modifications as the President might by order
specify. We have already pointed out that the power to make
exceptions implies that the President can provide that a particular
provision of the Constitution would not apply to that State. If
therefore the power is given to the President to efface in effect
any provision of the Constitution altogether in its application to
38
the State of Jammu and Kashmir, it seems that when he is also
given the power to make modifications that power should be
considered in its widest possible amplitude. If he could efface a
particular provision of the Constitution altogether in its
application to the State of Jammu and Kashmir, we see no reason
to think that the Constitution did not intend that he should have
the power to amend a particular provision in its application to the
State of Jammu and Kashmir. It seems to us that when the
Constitution used the word “modification” in Art. 370(1) the
intention was that the President would have the power to amend
the provisions of the Constitution if he so thought fit in their
application to the State of Jammu and Kashmir. In the Oxford
English Dictionary (Vol. VI) the word “modify” means inter alia
“to make partial changes in; to change (as object) in respect of
some of its qualities; to alter or vary without radical
transformation”. Similarly the word “modification” means “the
action of making changes in an object without altering its
essential nature or character; the state of being thus changed;
partial alteration”. Stress is being placed on the meaning “to alter
or vary without radical transformation” on behalf of the
petitioner; but that is not the only meaning of the words
“modify” or “modification”. The word “modify” also means “to
make partial changes in” and “modification” means “partial
alteration”. If therefore the President changed the method of
direct election to indirect election he was in essence making a
partial change or partial alteration in Art. 81 and therefore the
modification made in the present case would be even within the
dictionary meaning of that word. But, in law, the word “modify”
has even a wider meaning. In “Words and Phrases” by Roland
Burrows, the primary meaning of the word “modify” is given as
“to limit” or “restrict” but it also means “to vary” and may even
mean to “extend” or “enlarge”. Thus in law the word “modify”
may just mean “vary” i.e. amend; and when Art. 370(1) says that
the President may apply the provisions of the Constitution to the
State of Jammu and Kashmir with such modifications as he may
by order specify it means that he may vary (i.e. amend) the
provisions of the Constitution in its application to the State of
Jammu and Kashmir. We are therefore of opinion that in the
context of the Constitution we must give the widest effect to the
meaning of the word “modification” used in Art. 370(1) and in
that sense it includes an amendment. There is no reason to limit
the word “modifications” as used in Art. 370(1) only to such
modifications as do not make any “radical transformation”. We
are therefore of opinion that the President had the power to make
the modification which he did in Art. 81 of the Constitution. The
petition therefore fails and is hereby dismissed with costs.”
39
The Governor is conferred the power to modify or create
exceptions, is not in dispute. The power is wide but is confined to the
Acts of the Parliament or the State legislature. The power of the
Governor is not only extensive but also sui generis, and as the court
has to defer to legislative wisdom in areas of social and economic
experimentation, it also defers to the wisdom of the Governor in the
exercise of his power under Para 5 of the Fifth Schedule.
46. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental
Action Group & Ors., (2006) 3 SCC 434, the Court referred to the
decision in Puranlal Lakhanpal (supra) and observed:
“243. Yet again in Puranlal Lakhanpal v. President of India,
(1962) 1 SCR 688, it was stated: (SCR p. 693)
“[T]he word ‘modification’ means ‘the action of making
changes in an object without altering its essential nature or
character …’.”
47. In Puranlal (supra), the Court observed that modification in
Article 370(1) must be given the widest effect in the context of the
Constitution, and in that sense, it cannot include such limitations as
do not make any radical transformation. In S.K. Gupta & Anr. v. K.P.
Jain & Anr., (1979) 3 SCC 54, the term “modification” came up for
consideration. The Court held that it would include the making of
additions and omissions. In the context of Section 392, “modification”
would mean addition to the scheme of compromise and/or
40
arrangement or omission therefrom solely to make it workable. The
court observed thus:
“26. According to the definition, "modify" and "modification"
would include the making of additions and omissions. In the
context of Section 392, "modification" would mean addition to
the scheme of compromise and/ or arrangement or omission
therefrom solely for the purpose of making it workable. Reading
Section 392 by substituting the definition of the word
"modification" in its place, if something can be omitted or
something can be added to a scheme of compromise by the Court
on its own motion or on the application of a person interested in
the affairs of the company for the proper working of the
compromise and/or arrangement, we see no justification for
cutting down its meaning by a process of interpretation and
thereby whittle down the power of the Court to deal with the
scheme of a compromise and/or arrangement for the purpose of
making it workable in course of its continued supervision as
ordained by Section 392(1)."
48. Para 5(1) of Schedule V to the Constitution confers power upon
the Governor to exclude law, which is applicable in a scheduled area.
It also empowers the Governor to apply the same with exceptions and
modifications as he deems fit. However, the power to exclude an area
from applicability, modification, and to create exceptions in the law,
which was applicable in the area, cannot be said to be at par to the
regulationmaking power conferred under para 5(2) of the said Rules.
Meaning of the expressions ‘exception’ and ‘modification’ is as follows :
“exception n. a person or thing that is excepted or that does
not follow a rule. the action or state of excepting or being
excepted.”
“modification n. the action of modifying. a change
made.”
(Source: Concise Oxford English Dictionary, 10th Edn. Revised)
41
49. The exceptions and modifications are created by the law, which
is already applicable in the area. It is not the formulation of a new law
which is contemplated under Para 5(1) of Schedule V. No new law can
be formulated while exercising power under Para 5(1) of Schedule V.
The power of modification cannot extend to rewriting the entire
statute. The power cannot be used to supplant the law, which is
applicable. The law has to be applied only with exceptions or
modifications. It cannot totally supersede the existing law, which is
wholly opposed to the idea of applicable law as in that case it would
tantamount to the new law and not the modification or exception or
creation of exceptions or modifications to the applicable law. The
object and substance of law applicable cannot be changed within the
purview of Para 5(1), though the applicability of applicable law can be
excluded. In case the Governor decides the law to remain applicable,
he has the power only to create exceptions and to modify the same,
not to create a new one juxtaposed to the same applicable law.
50. The A.P. Regulation of Reservation and Appointment to Public
Services Act, 1997, deals with reservation in the State in the field of
public services. G.O. Ms. No.3 of 2000 did not amend the said Act.
The provisions of the other Acts mentioned in the notification did not
deal with the extent of reservation. Sections 78 and 79 of the A.P.
Education Act, 1982 and Sections 169, 195, and 268 of the A.P.
42
Panchayati Raj Act, 1994, are not related to reservation. The rules
were framed under the proviso to Article 309. They were not framed
under the main provision by the legislature. The Governor in the
exercise of power under Para 5(1) of Schedule V could have amended
the Public Services Act, 1997, or direct it not to apply to Scheduled
Areas. The creation of 100 per cent reservation had the effect of
making a new law under Para 5(1) without reference to the Act of State
or Central legislation. Independently of that power could not be
exercised within the purview of Para 5(1) of Schedule V to the
Constitution of India. Even otherwise, even if the Act of 1997 would
have been modified by the Governor, 100% reservation could not have
been provided.
51. We are of the opinion that the Governor's power to make new law
is not available in view of the clear language of Para 5(1), Fifth
Schedule does not recognise or confer such power, but only power is
not to apply the law or to apply it with exceptions or modifications.
Thus, notification is ultra vires to Para 5(1) of Schedule V of the
Constitution.
In Re: Question No.1(b): Does the power extend to subordinate
legislation?
52. G.O. Ms. No.3/2000 refers to various provisions and Sections 78
and 79 of the A.P. Education Act, 1982. There is also reference to
43
sections 169, 195, and 268 of the A.P. Panchayat Raj Act, 1994. None
of the aforesaid provisions deals with reservation of posts. The third
reference is about the A.P. State and Subordinate Service Rules, 1996,
which were framed in exercise of the powers conferred by the proviso
of Article 309 of the Constitution of India. Rule 22 of A.P. State and
Subordinate Services Rules, 1996, deals with reservation. The rules
have been framed under proviso to Article 309 of the Constitution.
53. The Andhra Pradesh Regulation of Reservation and Appointment
to Public Services Act, 1997, was enacted to provide reservations. It
mandates to ensure that reservation provided under Rule 22 is
followed scrupulously, and the provisions made in the rules are not
violated. In the A.P. Regulation of Reservation and Appointment Act,
the percentage of reservation has not been provided to respective
Scheduled Castes, Scheduled Tribes and Backward classes.
54. Rules 22 and 22A, which provide for reservation for Scheduled
Castes, Scheduled Tribes, backward classes and women have been
framed under the proviso to Article 309 of the Constitution of India.
They are not to partake with an Act of Parliament or State legislature.
In substance, Rules 22 and 22A framed under Article 309 have
been amended, which could not have been done as that is not the Act
of the Parliament or the legislature of the State. Thus, the Governor
44
could not have exercised power concerning rule framed under the
proviso to Article 309 of the Constitution.
55. In B.S. Yadav & Ors. v. State of Haryana & Ors., AIR 1981 SC
561, this Court held that the rule made by the Governor under the
proviso is also the law but, at the same time, it cannot be said in view
of the aforesaid decision that the Parliament or the State legislature
made the rules under the proviso to Article 309 of the Constitution.
56. Learned counsel on behalf of the State argued that Para 5(1) of
Schedule V empowers the Governor to make laws, and it is a
legislative function, and any order of the Governor shall be treated as
legislation. The impugned order shall have to be treated as legislation
and can only be tested on the parameters of competence and violation
of the Constitution. It cannot be tested on the touchstone of ideal
norms. Reliance has been placed on Natural Resources Allocation, In
re, Special Reference No.1 of 2012, (2012) 10 SCC 1 in which the Court
opined:
“112. Equality, therefore, cannot be limited to mean only
auction, without testing it in every scenario. In State of W.B. v.
Anwar Ali Sarkar, AIR 1952 SC 75, this Court, quoting from
Kotch v. River Port Pilot Commissioners, 91 L Ed 1093: 330 US
552 (1947) had held that: (Anwar Ali Sarkar case, AIR 1952 SC
75, AIR p. 80, para 10)
“10. … ‘The constitutional command for a State to
afford equal protection of the laws sets a goal not attainable
by the invention and application of a precise formula. This
Court has never attempted that impossible task.’”
45
One cannot test the validity of a law with reference to the
essential elements of ideal democracy, actually incorporated in
the Constitution. (See Indira Nehru Gandhi v. Raj Narain, 1975
Supp SCC 1) The courts are not at liberty to declare a statute
void, because in their opinion, it is opposed to the spirit of the
Constitution. The courts cannot declare a limitation or
constitutional requirement under the notion of having discovered
some ideal norm. Further, a constitutional principle must not be
limited to a precise formula but ought to be an abstract principle
applied to precise situations. The repercussion of holding auction
as a constitutional mandate would be the voiding of every action
that deviates from it, including social endeavours, welfare
schemes and promotional policies, even though CPIL itself has
argued against the same, and asked for making auction
mandatory only in the alienation of scarce natural resources
meant for private and commercial business ventures. It would be
odd to derive auction as a constitutional principle only for a
limited set of situations from the wide and generic declaration of
Article 14. The strength of constitutional adjudication lies in case
to case adjudication and therefore auction cannot be elevated to a
constitutional mandate."
The submission that the order of the Governor shall be treated
as legislation and has to be tested like legislation cannot be disputed.
However, when it comes to modification or exception, concerning the
Act of Parliament or the State legislature, we cannot add subordinate
legislation in the ken of Para 5(1). The Governor can make a decision
not to apply Parliamentary law or State law to scheduled areas and
modify such law.
57. The rules framed under the proviso to Article 309 of the
Constitution cannot be said to be the Act of Parliament or State
legislature. Though the rules have the statutory force, they cannot be
said to have been framed under any Act of Parliament or State
legislature. The rules remain in force till such time the legislature
46
exercises power. The power of the Governor under Para 5(1) of
Schedule V of the Constitution is restricted to modifying or not to
apply, Acts of the Parliament or legislature of the State. Thus, the
rules could not have been amended in the exercise of the powers
conferred under Para 5(1) of Schedule V. The rules made under
proviso to Article 309 of the Constitution cannot be said to be an
enactment by the State legislature. Thus, in our opinion, it was not
open to the Governor to issue the impugned G.O. No.3/2000.
In re: Question No.1(c): Can the exercise of the power conferred in
Para 5 of the Fifth Schedule override fundamental rights
guaranteed under Part III?
58. Manifold arguments are made in this regard. Firstly, it was
argued on behalf of the respondents that the basic structure doctrine
is inapplicable upon the Constitution's original text. It must not be
employed to test the validity of the impugned action. The fifth
Schedule under Article 244(1) of the Constitution is part of the original
text, and hence, it must not be tested under the Basic Structure
Doctrine. Reliance has been placed on Kesavananda Bharti v. State of
Kerala, (1973) 4 SCC 225 in which this Court laid down that
Constitutional amendments post1973 can be struck down if they
violate the Basic Structure Doctrine.
59. Reliance has also been placed on Waman Rao and Ors. v. Union
of India and Ors., (1981) 2 SCC 362, in which this Court opined thus:
47
“49. We propose to draw a line, treating the decision in Kesvananda
Bharati, (1973) 4 SCC 225, as the landmark. Several Acts were put in
the Ninth Schedule prior to that decision on the supposition that the
power of Parliament to amend the Constitution was wide and
untrammelled. The theory that the Parliament cannot exercise its
amending power to damage or destroy the basic structure of the
Constitution was propounded and accepted for the first time in
Kesavananda Bharati, (1973) 4 SCC 225, is one reason for upholding
the laws incorporated into the Ninth Schedule before April 24, 1973,
on which date the judgment in Kesavananda Bharati, (1973) 4 SCC
225, was rendered. A large number of properties must have changed
hands, and several new titles must have come into existence on the
faith and belief that the laws included in the Ninth Schedule were not
open to challenge on the ground that they were violative of Articles
14, 19 and 31. We would not be justified in upsetting settled claims
and titles and in introducing chaos and confusion into the lawful
affairs of a fairly orderly society.
50. The second reason for drawing a line at a convenient and relevant
point of time is that the first 66 items in the Ninth Schedule, which
were inserted prior to the decision in Kesavananda Bharati, (1973) 4
SCC 225, mostly pertain to laws of agrarian reforms. There are a few
exceptions amongst those 66 items, like Items 17, 18, 19, which relate
to Insurance, Railways and Industries. But almost all other items
would fall within the purview of Article 31-A(1)(a). In fact, Items 65
and 66, which were inserted by the 29th Amendment, are the Kerala
Land Reforms (Amendment) Acts of 1969 and 1971 respectively,
which were specifically challenged in Kesavananda Bharati, (1973) 4
SCC 225. That challenge was repelled.
51. Thus, insofar as the validity of Article 31-B read with the Ninth
Schedule is concerned, we hold that all Acts and Regulations included
in the Ninth Schedule prior to April 24, 1973 will receive the full
protection of Article 31-B. Those laws and regulations will not be
open to challenge on the ground that they are inconsistent with or take
away or abridge any of the rights conferred by any of the provisions of
Part III of the Constitution. Acts and Regulations, which are or will be
included in the Ninth Schedule on or after April 24, 1973 will not
receive the protection of Article 31-B for the plain reason that in the
face of the judgment in Kesavananda Bharati, (1973) 4 SCC 225,
there was no justification for making additions to the Ninth Schedule
with a view to conferring a blanket protection on the laws included
therein. The various constitutional amendments, by which additions
were made to the Ninth Schedule on or after April 24, 1973, will be
valid only if they do not damage or destroy the basic structure of the
Constitution.”
(emphasis supplied)
48
60. Reliance has also been placed on the decision of this Court in
I.R. Coelho (Dead) by LRs. v. State of T.N., (2007) 2 SCC 1, decided by a
nineJudge Bench of this Court thus:
“151. The effect of the application of the limitation of the basic
structure to a scheduled Act is that Article 31-B read with the Ninth
Schedule is no longer not subject to judicial review. Judicial review is,
therefore, very much present.”
Thus, it was urged that since the original text of the Constitution
is contained in the Fifth Schedule, it would not be permissible to test
the same in terms of the basic structure. Article 14 is the part of the
basic structure; therefore, it cannot be used to dilute the nonobstante
clause of Para 5(1) of Fifth Schedule, and action taken thereunder
cannot be tested on the anvil of violation of fundamental rights.
61. In our opinion, the submission based on Basic Structure
Doctrine is not at all germane to the instant case to decide the validity
of the provisions contained in Para 5 of Fifth Schedule of the
Constitution or validity of any other Constitutional amendment. We
are deciding the validity of the action of the Governor issuing
impugned notification, providing 100 per cent reservation to
Scheduled Tribes in the Scheduled Areas. Every action of the
legislature, whether it is Parliament or State, has to conform with the
rights guaranteed in Part III of the Constitution. The original scheme
of the Constitution itself so provides; thus, the argument based upon
49
Basic Structure Doctrine does not hold the validity of the notification
as that action is taken under the provisions, and the provisions in
Para 5 Schedule V do not override the rights guaranteed in Part III of
the Constitution. The limitations on the legislature in the field of
legislation are applicable to Governor also.
62. It was next argued that there is absolute discretion with the
Governor to make modification and exception as to the applicability of
laws; however, absolute discretion cannot be said to be exercisable
arbitrarily. The Constitution has not conferred any arbitrary power
on any constitutional functionary. Arbitrariness is an antithesis to
the concept of equality, which is enshrined in Article 14 of the
Constitution, and the same is its spirit and soul.
63. The provisions of the Constitution are required to be interpreted
keeping in view the will of the makers thereof as held in S.R.
Chaudhuri v. State of Punjab & Ors., (2001) 7 SCC 126 thus:
“33. Constitutional provisions are required to be understood and
interpreted with an object-oriented approach. A Constitution
must not be construed in a narrow and pedantic sense. The words
used may be general in terms but, their full import and true
meaning have to be appreciated considering the true context in
which the same are used and the purpose which they seek to
achieve. Debates in the Constituent Assembly referred to in an
earlier part of this judgment clearly indicate that a non-member's
inclusion in the Cabinet was considered to be a “privilege” that
extends only for six months, during which period the member
must get elected, otherwise he would cease to be a Minister. It is
a settled position that debates in the Constituent Assembly may
be relied upon as an aid to interpret a constitutional provision
50
because it is the function of the court to find out the intention of
the framers of the Constitution. We must remember that a
Constitution is not just a document in solemn form, but a living
framework for the Government of the people exhibiting a
sufficient degree of cohesion and its successful working depends
upon the democratic spirit underlying it being respected in letter
and in spirit. The debates clearly indicate the “privilege” to
extend “only” for six months.”
64. The very concept of equality, which is sought to be achieved by
protective discrimination, is not just a matter of classification but also
aims against arbitrariness. Equality is the antithesis of arbitrariness.
In Col. A.S. Iyer and Ors. v. V. Balasubramanyam, (1980) 1 SCC 634,
the Court as to the doctrine of classification observed:
“57. x x x This tendency, in an elitist society with a diehard
caste mentality, is a disservice to our founding faith, even if
judicially sanctified. Subba Rao, J., hit the nail on the head when
he cautioned in Lachhman Das v. State of Punjab, (1963) 2 SCR
353, 395: AIR 1963 SC 222:
“The doctrine of classification is only a subsidiary rule
evolved by courts to give a practical content to the said
doctrine. Over-emphasis on the doctrine of classification or
an anxious and sustained attempt to discover some basis for
classification may gradually and imperceptibly deprive the
article of its glorious content. That process would
inevitably end in substituting the doctrine of classification
for the doctrine of equality; the fundamental right to
equality before the law and the equal protection of the laws
may be replaced by the doctrine of classification.”
65. In Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors.,
(1981) 1 SCC 722, the Court considered the doctrine of classification.
The classification is not only to be reasonable; it must satisfy the
requisite conditions. Whenever there is arbitrariness in State action,
whether it be of the legislature or the executive or authority under
51
Article 12, the provisions of Article 14 immediately springs into action
to strike down such an action. The Court held:
"16. If the Society is an ‘authority’ and therefore ‘State’ within
the meaning of Article 12, it must follow that it is subject to the
constitutional obligation under Article 14. The true scope and
ambit of Article 14 have been the subject-matter of numerous
decisions, and it is not necessary to make any detailed reference
to them. It is sufficient to state that the content and reach of
Article 14 must not be confused with the doctrine of
classification. Unfortunately, in the early stages of the evolution
of our constitutional law, Article 14 came to be identified with
the doctrine of classification because the view was taken was
that that article forbids discrimination and there would be no
discrimination where the classification making the differentia
fulfils two conditions, namely, (i) that the classification is
founded on an intelligible differentia which distinguishes persons
or things that are grouped together from others left out of the
group; and (ii) that that differentia has a rational relation to the
object sought to be achieved by the impugned legislative or
executive action. It was for the first time in E.P. Royappa v. State
of Tamil Nadu, (1974) 2 SCR 348: (1974) 4 SCC 3, that this
Court laid bare a new dimension of Article 14 and pointed out
that that article has highly activist magnitude and it embodies a
guarantee against arbitrariness. This Court speaking through one
of us (Bhagwati, J.) said: SCC p. 38: SCC (L&S) p. 200, para
85]
“The basic principle which, therefore, informs both Articles
14 and 16 is equality and inhibition against discrimination.
Now, what is the content and reach of this great equalising
principle? It is a founding faith, to use the words of Bose,
J., ‘a way of life’, and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot
countenance any attempt to truncate its all-embracing scope
and meaning, for to do so would be to violate its activist
magnitude. Equality is a dynamic concept with many
aspects and dimensions and it cannot be “cribbed, cabined
and confined” within traditional and doctrinaire limits.
From a positivistic point of view, equality is antithetic to
arbitrariness. In fact, equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary it is implicit in it that it is unequal
both according to political logic and constitutional law and
is therefore violative of Article 14, and if it affects any
matter relating to public employment, it is also violative of
52
Article 16. Articles 14 and 16 strike at arbitrariness in State
action and ensure fairness and equality of treatment.”
This vital and dynamic aspect which was till then lying latent
and submerged in the few simple but pregnant words of Article
14 was explored and brought to light in Royappa case, (1974) 2
SCR 348: (1974) 4 SCC 3, and it was reaffirmed and elaborated
by this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC
248, where this Court again speaking through one of us
(Bhagwati, J.) observed: (SCC pp. 283-84, para 7)
“Now the question immediately arises as to what is
the requirement of Article 14: What is the content and reach
of the great equalising principle enunciated in this Article?
There can be no doubt that it is a founding faith of the
Constitution. It is indeed the pillar on which rests securely
the foundation of our democratic republic. And, therefore,
it must not be subjected to a narrow, pedantic or
lexicographic approach. No attempt should be made to
truncate its all-embracing scope and meaning, for to do so
would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire
limits.... Article 14 strikes at arbitrariness in State action
and ensures fairness and equality of treatment. The
principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding
omnipresence.”
This was again reiterated by this Court in International Airport
Authority case, (1979) 3 SCC 489, at p. 1042 (SCC p. 511) of
the Report. It must therefore now be taken to be well settled that
what Article 14 strikes at is arbitrariness because an action that is
arbitrary must necessarily involve negation of equality. The
doctrine of classification which is evolved by the courts is not
paraphrase of Article 14 nor is it the objective and end of that
article. It is merely a judicial formula for determining whether
the legislative or executive action in question is arbitrary and
therefore constituting denial of equality. If the classification is
not reasonable and does not satisfy the two conditions referred to
above, the impugned legislative or executive action would
plainly be arbitrary and the guarantee of equality under Article
14 would be breached. Wherever therefore there is arbitrariness
in State action whether it be of the legislature or of the executive
or of an “authority” under Article 12, Article 14 immediately
springs into action and strikes down such State action. In fact,
the concept of reasonableness and non-arbitrariness pervades the
entire constitutional scheme and is a golden thread which runs
through the whole of the fabric of the Constitution.”
53
66. In E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3,
concerning the concept of equality and arbitrariness in action, in the
context of Articles 14 and 16, the Court held:
“85. The last two grounds of challenge may be taken up together
for consideration. Though we have formulated the third ground
of challenge as a distinct and separate ground, it is really in
substance and effect merely an aspect of the second ground
based on violation of Articles 14 and 16. Article 16 embodies the
fundamental guarantee that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment
to any office under the State. Though enacted as a distinct and
independent fundamental right because of its great importance as
a principle ensuring equality of opportunity in public
employment which is so vital to the building up of the new
classless egalitarian society envisaged in the Constitution, Article
16 is only an instance of the application of the concept of
equality enshrined in Article 14. In other words, Article 14 is the
genus while Article 16 is a species. Article 16 gives effect to the
doctrine of equality in all matters relating to public employment.
The basic principle which, therefore, informs both Articles 14
and 16 is equality and inhibition against discrimination. Now,
what is the content and reach of this great equalising principle? It
is a founding faith, to use the words of Bose. J., “a way of life”,
and it must not be subjected to a narrow pedantic or
lexicographic approach. We cannot countenance any attempt to
truncate its all-embracing scope and meaning, for to do so would
be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be
“cribbed, cabined and confined” within traditional and
doctrinaire limits. From a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is
therefore violative of Article 14, and if it effects any matter
relating to public employment, it is also violative of Article 16.
Articles 14 and 16 strike at arbitrariness in State action and
ensure fairness and equality of treatment. They require that State
action must be based on valid relevant principles applicable alike
54
to all similarly situate and it must not be guided by any
extraneous or irrelevant considerations because that would be
denial of equality. Where the operative reason for State action, as
distinguished from motive inducing from the antechamber of the
mind, is not legitimate and relevant but is extraneous and outside
the area of permissible considerations, it would amount to mala
fide exercise of power and that is hit by Articles 14 and 16. Mala
fide exercise of power and arbitrariness are different lethal
radiations emanating from the same vice: in fact the latter
comprehends the former. Both are inhibited by Articles 14 and
16.”
67. In Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248,
this Court held that fundamental rights are not distinct and mutually
exclusive rights. Each freedom has its dimensions. The law is not freed
from the necessity to meet the challenge of another guaranteed
freedom. Thus, the law effecting personal liberty under Article 21 will
also have to satisfy the test under Articles 14 and 19. In majority
opinion, Beg, J. observed:
“202. Articles dealing with different fundamental rights
contained in Part III of the Constitution do not represent entirely
separate streams of rights which do not mingle at many points.
They are all parts of an integrated scheme in the Constitution.
Their waters must mix to constitute that grand flow of
unimpeded and impartial Justice (social, economic and political),
Freedom (not only of thought, expression, belief, faith and
worship, but also of association, movement, vocation or
occupation as well as of acquisition and possession of reasonable
property), of Equality (of status and of opportunity, which imply
absence of unreasonable or unfair discrimination between
individuals, groups, and classes) and of Fraternity (assuring
dignity of the individual and the unity of the nation), which our
Constitution visualises. Isolation of various aspects of human
freedom, for purposes of their protection, is neither realistic nor
beneficial but would defeat the very objects of such protection.”
Justices Bhagwati, Untwalia and Fazal Ali observed:
“The nature and requirement of the procedure under Article 21
55
7. Now, the question immediately arises as to what is the
requirement of Article 14 : what is the content and reach of the
great equalising principle enunciated in this article? There can be
no doubt that it is a founding faith of the Constitution. It is
indeed the pillar on which rests securely the foundation of our
democratic republic. And, therefore, it must not be subjected to a
narrow, pedantic or lexicographic approach. No attempt should
be made to truncate its all-embracing scope and meaning, for to
do so would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire limits.
We must reiterate here what was pointed out by the majority in
E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348, namely,
that “from a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic, while the
other, to the whim and caprice of an absolute monarch. Where an
act is arbitrary, it is implicit in it that it is unequal both according
to political logic and constitutional law and is therefore violative
of Article 14”. Article 14 strikes at arbitrariness in State action
and ensures fairness and equality of treatment...The principle of
reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It
must be “right and just and fair” and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.”
Krishna Iyer, J. observed:
“96. A thorny problem debated recurrently at the bar, turning on
Article 19, demands some juristic response although avoidance
of overlap persuades me to drop all other questions canvassed
before us. The Gopalan verdict, with the cocooning of Article 22
into a self-contained code, has suffered suppression at the hands
of R.C. Cooper, (1970) 3 SCR 530. By way of aside, the
fluctuating fortunes of fundamental rights, when the proletarist
and the proprietarist have asserted them in Court, partially
provoke sociological research and hesitantly project the Cardozo
thesis of sub-conscious forces in judicial noesis when the
cycloramic review starts from Gopalan, moves on to In re Kerala
Education Bill, 1959 SCR 995 and then on to All-India Bank
Employees’ Association, (1962) 3 SCR 269, next to Sakal
Papers, (1962) 3 SCR 842, crowning in Cooper and followed by
Bennett Coleman, (1973) 2 SCR 757 and Shambhu Nath Sarkar,
56
(1973) 1 SCC 856. Be that as it may, the law is now settled, as I
apprehend it, that no article in Part III is an island but part of a
continent and the conspectus of the whole part gives the
direction and correction needed for interpretation of these basic
provisions. Man is not dissectible into separate limbs and,
likewise, cardinal rights in an organic constitution, which make
man human have a synthesis. The proposition is indubitable that
Article 21 does not, in a given situation, exclude Article 19 if
both rights are breached."
68. In Neelima Misra v. Harinder Kaur Paintal & Ors., (1990) 2 SCC
746, this Court held that an administrative action, whether legislative,
administrative or quasijudicial must not be illegal, irrational or
arbitrary. The nonobstante clause as to what it excludes is to be
considered only in light of extent of power conferred on the Governor
to issue a notification, to order that Act of the legislature shall not
apply and may make exceptions and modifications. However, at the
same time power is to be exercised within bounds of legislative power
conferred on the legislature. The special control is conferred upon the
Governor to direct that any Act shall not apply, which could not
otherwise apply or be applicable in the area without such exceptions
or modifications as ordered by the Governor.
Effect of the nonobstante clause:
69. Para 5(1) of the Fifth Schedule of the Constitution starts with a
nonobstante clause. What is the effect of the nonobstante clause visàvis the applicability to other provisions of the Constitution? Whether
the provisions of Para 5(1) prevail over all other provisions of the
57
Constitution? Whether the fundamental rights in Part III of the
Constitution are inapplicable and need not be satisfied?
70. The provision of the Fifth Schedule beginning with the words
“notwithstanding anything in this Constitution” cannot be construed
as taking away the provision outside the limitations on the amending
power and has to be harmoniously construed consistent with the
foundational principles and the basic features of the Constitution.
71. In R.C. Poudyal v. Union of India & Ors., 1994 Supp. (1) SCC
324, this Court considered the question whether the nonobstante
clause (f) to Article 371F inserted by the Constitution (36th
Amendment) Act, 1975 containing a special provision for the State of
Sikkim. The Governor of Sikkim has exclusive responsibility for peace
and equitable arrangement, for social and economic advancement and
various other provisions have been made that the nonobstante clause
is contained in Article 371F, cannot be construed as taking clause (f)
of Article 371F outside the limitation on the amendment power itself.
This Court opined that:
"102. It is, however, urged that Article 371-F starts with a nonobstante clause, and therefore the other provisions of the
Constitution do not limit the power to impose conditions. But
Article 371-F cannot transgress the basic features of the
Constitution. The non-obstante clause cannot be construed as
taking clause (f) of Article 371-F outside the limitations on the
amendment power itself. The provisions of clause (f) of Article
371-F and Article 2 have to be construed harmoniously
consistent with the foundational principles and basic features of
58
the Constitution. Whether clause (f) has the effect of destroying a
basic feature of the Constitution depends, in turn, on the question
whether reservation of seats in the legislature based on ethnic
group is itself destructive of democratic principle. Whatever the
merits of the contentions be, it cannot be said that the issues
raised are non-justiciable.
103. In Mangal Singh v. Union of India, (1967) 2 SCR 109, 112
this Court said:
“Power with which the Parliament is invested by Articles 2
and 3, is power to admit, establish, or from new States
which conform to the democratic pattern envisaged by the
Constitution; and the power which the Parliament may
exercise by law is supplemental, incidental or consequential
to the admission, establishment or formation of a State as
contemplated by the Constitution, and is not power to
override the constitutional scheme.”
104. Even if clause (f) of Article 371-F is valid, if the terms and
conditions stipulated in a law made under Article 2 read with
clause (f) of Article 371-F go beyond the constitutionally
permissible latitudes, that law can be questioned as to its validity.
The contention that the vires of the provisions and effects of such
a law are non-justiciable cannot be accepted.”
72. In State of Sikkim v. Surendra Prasad Sharma & Ors., (1994) 5
SCC 282, this Court held that the laws, which were in force before the
commencement of the Constitution of India, must be consistent with
Part III of the Constitution to continue to be in force.
This Court opined:
“11. From the above constitutional scheme what emerges is that
the laws which were in force in the territory of India
immediately before the commencement of the Constitution shall
continue in force therein until altered, repealed or amended by a
competent legislature or authority except to the extent
inconsistent with Part III of the Constitution. However,
notwithstanding anything in the Constitution, Parliament was
empowered to make laws inter alia with respect to any matter
referred to in Article 16(3). Thus, Parliament could prescribe by
law the requirement as to residence within a State or Union
Territory and if such a law is made nothing in Article 16 will
59
stand in the way of such prescription. Since Article 16(3) is in
Part III of the Constitution, the law, if made, would clearly be
intra vires the Constitution. By virtue of Article 35(b) any law in
force immediately before the commencement of the Constitution
in relation to any matter in Article 16(3) shall continue in force,
notwithstanding anything in the Constitution. The expression
‘law in force’ has the meaning assigned to it in Article 372,
Explanation I. This is the conjoint effect of Articles 13, 16(3),
35(b) and 372 of the Constitution. Since Sikkim was never a part
of the territory of India immediately before the commencement
of the Constitution, the High Court has ruled out the applicability
of the said provisions in this case. Article 2 provides that
Parliament may by law admit into the Union, or establish, new
States on such terms and conditions as it thinks fit. The law so
made must conform to the requirements of Article 13. That is the
view expressed in Poudyal case, 1944 Supp (1) SCC 324. But
the historical events preceding its inclusion in the territory of
India must be borne in mind. Sikkim during the British period
was ruled by a monarch called the Chogyal. After India became
free there was a popular demand from the people of Sikkim for
its merger with India. Pursuant to the sentiments expressed by
the People of Sikkim, a treaty was entered into between India
and the Chogyal short of merger which was followed up by
consequential changes. However, the public demand became
violent forcing the Chogyal to request the Union Government to
assume the responsibility for good Government. Ultimately, on
8-5-1973, a formal agreement was signed between the Chogyal
and the political leaders of Sikkim on the one side and the
Government of India on the other in pursuance whereto the
people of Sikkim were to enjoy certain democratic rights. This
development would show that Sikkim which was a British
protectorate under the British paramountcy until 1947 came
within the protectorate of India under the treaty of 3-12-1950 and
later became an associate State by the insertion of Article 2-A in
the Constitution by the 35th Amendment on the terms and
conditions set out in the Tenth Schedule and soon thereafter by
the 36th Amendment Article 2-A was deleted and full statehood
under the Union of India was conferred on the terms and
conditions incorporated in the newly added Article 371-F. These
constitutional changes had to be introduced in 1975 in
reciprocation of the understanding on which Sikkim agreed to its
merger with India and to fulfil the aspirations of the Sikkimese
people. The terms and conditions for merger of Sikkim found in
Article 371-F have, therefore, to be viewed in this background.”
60
73. However, under the special agreement special provisions
contained in Article 371F(k), all laws in force in the State of Sikkim
were protected until amended or repealed to ensure a smooth
transition from Chogyal’s rule to democratic rules under the
Constitution. Article 371F(l) enshrines that many of such existing
laws may be inconsistent with the Constitution, as such immunity
was granted in the transitional period, this Court in State of Sikkim v.
Surendra Prasad Sharma (supra) considered nonobstante clause in
Article 371F and observed that the laws in force would have had to
meet the test of Article 13 of the Constitution. It was held:
"22. Article 371-F, is as stated earlier, a special constitutional
provision concerning the State of Sikkim. The reason why it
begins with a non obstante clause is that the matters referred to
in the various clauses immediately following required a
protective cover so that such matters are not struck down as
unconstitutional because they do not satisfy the constitutional
requirement. Unless such immunity was granted, 'the laws in
force' would have had to meet the test of Article 13 of the
Constitution. Same being the objective, existing laws or laws in
force came to be protected by clause (k) added to Article 371-F.
The said laws in force in the State of Sikkim were, therefore,
protected, until amended or repealed, to ensure a smooth
transition from the Chogyal’s rule to the democratic rule under
the Constitution. Inherent in clause (l) is the assumption that
many of such existing laws may be inconsistent with the
Constitution and, therefore, the President came to be conferred
with a special power to make adaptations and modifications with
a view to making the said rule consistent with the Constitution.
Of course, this power had to be exercised within two years from
the appointed day. If any adaptation or modification is made in
the law in force prevailing prior to the appointed day, the law
would apply subject to such adaptation and modification. It is
thus obvious that the adaptation and modification made by the
President in exercise of this special power does not have the
effect of the law ceasing to be a law in force within the meaning
of clause (k) of Article 371-F. Therefore, on the plain language
61
of the said provision it is difficult to hold that the effect of
adaptation or modification is to take the law out of the purview
of ‘laws in force’.”
74. The nonobstante clause contained in Para 5(1) of the Fifth
Schedule of the Constitution means the Governor can exercise power
in spite of the provisions contained in Article 245 of the Constitution,
conferring the power upon Parliament to make laws and the
legislature of the State. The Parliament has the power to enact the law.
It cannot be questioned on the ground that it would have extraterritorial operation.
75. The nonobstante clause has also been considered in Smt.
Parayankandiyal Eravath Kanapravan Kalliani Amma & Ors. v. K. Devi
& Ors., AIR 1996 SC 1963. The scope has to be considered in the
context and purpose for which it has been carved out.
76. In Peerless General Finance and Investment Co. Ld. And Anr. v.
Reserve Bank of India, (1992) 2 SCC 343, the Court held that the
court has to make every endeavour to ensure that the efficacy of
fundamental rights is maintained and the legislature is not invested
with unlimited power. The Court is to guard against the gradual
encroachment and strike down a restriction as soon as it reaches that
magnitude of total infringement of the right. The Court observed:
“48. x x x The State can regulate the exercise of the
fundamental right to save the public from a substantive evil. The
existence of the evil as well as the means adopted to check it are
62
the matters for the legislative judgment. But the Court is entitled
to consider whether the degree and mode of the regulation is in
excess of the requirement or is imposed in an arbitrary manner.
The Court has to see whether the measure adopted is relevant or
appropriate to the power exercised by the authority or whether it
overstepped the limits of social legislation. Smaller inroads may
lead to larger inroads and ultimately result in total prohibition by
indirect method. If it directly transgresses or substantially and
inevitably affects the fundamental right, it becomes
unconstitutional, but not where the impact is only remotely
possible or incidental. The Court must lift the veil of the form
and appearance to discover the true character and the nature of
the legislation, and every endeavour should be made to have the
efficacy of fundamental right maintained and the legislature is
not invested with unbounded power. The Court has, therefore,
always to guard against the gradual encroachments and strike
down a restriction as soon as it reaches that magnitude of total
annihilation of the right.”
77. In case the argument raised on behalf of the respondent is
accepted that the Governor has unfettered power, notwithstanding the
provisions contained in Part III of the Constitution, Article 13 of the
Constitution becomes redundant. The power of judicial review of court
and legislature would loom into insignificance. There is no power to
the legislature or to the Governor to act contrary to the constitutional
provisions, and they cannot enact a law in derogation to the provisions
contained in Part III of the Constitution. In Chandavarkar S. R. Rao v.
Ashalata S. Guram, (1986) 4 SCC 447, it has been held that the effect
of the nonobstante clause is that in spite of the provisions of the Act
or any other Act mentioned in the nonobstante clause or any contract
or document mentioned, the enactment following it will have its full
operation or that the provision vested in the nonobstante clause
63
would not be an impediment for the operation of the enactment. In
case Governor decides not to apply the Act of the Parliament or
legislature of the State or apply them with exceptions and
modifications, he is empowered to do so. But it would be subject to the
restriction on the very legislative power with which the Parliament or
legislature of State suffers from the aboveavowed objective devised by
the framers of the Constitution.
78. The power is conferred on the Governor to deal with the
scheduled areas. It is not meant to prevail over the Constitution. The
power of the Governor is pari passu with the legislative power of
Parliament and the State. The legislative power can be exercised by
the Parliament or the State subject to the provisions of Part III of the
Constitution. In our considered opinion, the power of the Governor
does not supersede the fundamental rights under Part III of the
Constitution. It has to be exercised subject to Part III and other
provisions of the Constitution. When Para 5 of the Fifth Schedule
confers power on the Governor, it is not meant to be conferral of
arbitrary power. The Constitution can never aim to confer any
arbitrary power on the constitutional authorities. They are to be
exercised in a rational manner keeping in view the objectives of the
Constitution. The powers are not in derogation but the furtherance of
the constitutional aims and objectives.
64
In Re: Question No.1(d): Whether the exercise of power under the
Fifth Schedule of the Constitution overrides any parallel exercise
of power by the President under Article 371D?
79. It was argued on behalf of the appellants that Article 371D was
promulgated in view of geographical disparity in public employment
within the State of Andhra Pradesh. The candidates from certain
districts/areas of the State capturing a disproportionately large
number of public posts. Article 371D requires the State Government
to reorganise class or classes of posts in the State into different local
cadres for different parts of the State. The Presidential Order of 1975
was issued providing district/zone as a unit for the local cadre.
Whereas, G.O. provided that all the posts of teachers in the schools
situated in Scheduled Areas in the State of Andhra Pradesh shall be
filled in with the local Scheduled Tribes candidates only. A district or
zone is the unit for the local cadre. Whereas on the other hand, the
impugned G.O.Ms. No.3 of 2000 provided that all the posts of teachers
in the Scheduled Area, forming part of a district, to be filled up by
local Scheduled Tribe candidates only. The impugned G.O. reserved
all the posts in the Scheduled Area; thus, aspiring candidates in a
district/zone in the Scheduled Areas cannot apply for the post of
teachers in the district or zone as all the posts have been reserved for
local Scheduled Tribe candidates and "they cannot apply outside the
district or zone" because of the restrictions under Article 371D of the
Constitution.
65
80. Learned counsel for the appellant further argued that the
candidates other than Scheduled Tribe candidates in a district
residing in Scheduled Areas cannot apply at all, and they have been
deprived of the opportunity of getting public employment. The
impugned G.O. takes away the entire opportunity of nonScheduled
Tribe candidates even from applying for the post of teachers. Thus,
the impugned G.O. transgresses Article 371D of the Constitution and
is unconstitutional. The Governor could not have issued the
notification in such a manner in exercise of powers under Para 5 of
Fifth Schedule, which is repugnant to the Presidential Order issued
under Article 371D. The Governor cannot exercise the powers under
Para 5(1) of Fifth Schedule and cannot modify or override the
provisions of Article 371D of the Constitution.
81. It was argued on behalf of respondents that there is no
repugnancy in the Presidential Order and the impugned notification
issued by the Governor. Article 371D also starts with nonobstante
clause and conflict between the nonobstante clause as far as possible
must be resolved by way of harmonious construction of two conflicting
nonobstante clauses as laid down in Jay Engineering Works Limited v.
Industry Facilitation Council and Anr., (2006) 8 SCC 677:
“28. Both the Acts contain non obstante clauses. Ordinary rule
of construction is that where there are two non obstante clauses,
the latter shall prevail. But it is equally well settled that ultimate
66
conclusion thereupon would depend upon the limited context of
the statute. (See Allahabad Bank, (2000) 4 SCC 406, para 34.)
29. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it was
observed: (SCC p. 653, para 39)
“39. The interpretation of Section 25-J of the 1947 Act as
propounded by Mr Das also cannot also be accepted inasmuch
as in terms thereof only the provisions of the said chapter shall
have effect notwithstanding anything inconsistent therewith
contained in any other law including the Standing Orders
made under the Industrial Employment (Standing Orders) Act,
but it will have no application in a case where something
different is envisaged in terms of the statutory scheme. A
beneficial statute, as is well known, may receive liberal
construction but the same cannot be extended beyond the
statutory scheme.”
30. In Sarwan Singh v. Kasturi Lal, (1977) 1 SCC 750, this
Court opined: (SCC p. 760, para 20)
“When two or more laws operate in the same field and each
contains a non obstante clause stating that its provisions will
override those of any other law, stimulating and incisive
problems of interpretation arise. Since statutory interpretation
has no conventional protocol, cases of such conflict have to be
decided in reference to the object and purpose of the laws
under consideration.”
31. The endeavour of the court would, however, always be to
adopt a rule of harmonious construction.”
It was laid down that endeavour of the court would always be to
adopt a rule of harmonious construction, and the nonobstante clause
must be given effect as to the Parliament intent and not beyond that.
It was also urged that if the latter provision is found to be generic as
against the earlier provision, which is a special provision, then the
earlier provision shall prevail. Reliance has also been placed on
Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of
67
Maharashtra Ltd. and Anr., (1993) 2 SCC 144. The policy underlying
the provisions has to be considered, as observed in Jay Engineering
Works (supra). The notification issued, according to the Presidential
Order, creates district/zonal cadre for teachers. The Governor Order
reserved the posts of teachers in the Scheduled Area for Scheduled
Tribes. There is no strict conflict between the aforesaid notification,
and harmonious construction is possible.
82. It was further urged on behalf of respondents that the State of
Andhra Pradesh was reorganised in the year 1956, and part of the
areas falling in the State of Hyderabad, Telugu speaking areas known
as Telangana merged with Andhra Pradesh. In the Telangana region,
Mulki Rules prevail, which provide for residence as a requirement for
public employment. After the reorganisation, the Central Government
enacted the A.P. Public Employment (Requirement as to Residence)
Act, 1957, to continue the same. On challenge being made as to the
provisions being violative of Article 16(2), this Court in Narasimha Rao
v. State of A.P., (1969) 1 SCC 839, opined that the residence
requirement as unconstitutional, resulting in agitation demanding
division of State. The Parliament amended the Constitution by
inserting Article 371D, empowering the President to issue an order
providing equal opportunities to people belonging to different parts of
the State in education and public employment. Under para 3 of the
68
Presidential Order, the civil posts in the State were to be organised on
local cadres, such as Lower Division Clerks and equivalent NonGazetted category and existed Gazetted and NonGazetted category in
each department. Paras 4 and 5 of the Presidential Order provided
that employees to be allotted to local cadres/areas, which shall be a
unit for all purpose. Under para 6 of the Presidential Order, local
areas have to be the basis for various posts making district/zone,
multi zone and Statewide as local areas for all civil posts. Para 8
provided for reservation by way of direct recruitment for local
candidates. Article 371D(10) provided for nonobstante clause to make
provisions immune from challenge from Articles 14 and 16 of the
Constitution. The operation of Article 371D is confined to providing
for reservation in direct recruitment for local candidates and also for
various percentages of reservation for locals. Under para 6(1) each
district shall be regarded as local area. The action is not violative of
Article 371D. It was further argued on behalf of respondents that the
President has issued notification under Article 371D towards the
promotion of equality of opportunity. The notification did not deal
with Scheduled Areas or employment opportunities in Scheduled
Areas. No notification issued by the President under Article 371D
collides or is in conflict with the impugned notification. The
preferences given to the local areas within the meaning of Presidential
notification or exclusion of nonlocal areas cadre will not offend Article
69
14 of the Constitution, for which reliance has been placed on Sandeep
and Ors. v. Union of India and Ors., (2016) 2 SCC 328, Dr. Fazal
Ghafoor v. Principal, Osmania Medical College, Hyderabad and Ors.,
(1988) 4 SCC 532, Dr. Fazal Ghafoor v. Union of India and Ors., (1988)
Supp. SCC 794, N.T.R. University of Health Science, Vijayawada v. G.
Babu Rajendra Prasad and Anr., (2003) 5 SCC 350. Similar logic,
which is applicable to Articles 14 and 371D, is also to be relevant in
the context of what the Governor does under the Fifth Schedule.
Consequently, what the Governor has done to greater equality for
Scheduled Areas will not be faulted.
83. The nonobstante clause in Article 371D will not annul the nonobstante clause in Para 5 of the Fifth Schedule. Two constitutional
provisions operate in distinct domain. Article 371D was not enacted
to be a super imposition on Fifth Schedule. The object and purpose of
legislations or provisions with respect to nonobstante clause are
distinct. Thus, the court will not see any conflict. Reference has been
made to R.S. Raghunath v. State of Karnataka and Ors., (1991) Supp. 1
SCR 387, Sarwan Singh and Ors. v. Kasturi Lal, (1977) 2 SCR 421,
Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. and
Ors., (1990) 1 SCR 862, The South India Corporation (P) Ltd. v. The
Secretary, Board of Revenue Trivandrum and Ors., (1964) 4 SCR 280,
70
and Dr. Fazal Ghafoor v. Principal, Osmania Medical College,
Hyderabad and Ors., (1988) 4 SCC 532.
84. Article 371D has been inserted in the Constitution of India.
Subclauses 1, 2 and 10 of Article 371D are extracted hereunder:
“371D. Special provisions with respect to the State of Andhra
Pradesh or the State of Telangana.— (1) The president may by
order made with respect to the state of Andhra Pradesh or the
State of Telangana provide, having regard to the requirement of
each State, for equitable opportunities and facilities for the
people belonging to different parts of such State, in the matter of
public employment and in the matter of education, and different
provisions may be made for various parts of the States.
(2) An order made under clause (1) may, in particular,—
(a) require the State Government to organise any class or
classes of posts in a civil service of, or any class or classes of
civil posts under, the State into different local cadres for
different parts of the State and allot in accordance with such
principles and procedure as may be specified in the order the
persons holding such posts to the local cadres so organised;
(b) specify any part or parts of the State which shall be
regarded as the local area—
(i) for direct recruitment to posts in any local cadre
(whether organised in pursuance of an order under this
article or constituted otherwise) under the State
Government;
(ii) for direct recruitment to posts in any cadre under
any local authority within the State; and
(iii) for the purposes of admission to any University
within the State or to any other educational institution
which is subject to the control of the State
Government;
(c) specify the extent to which, the manner in which and the
conditions subject to which, preference or reservation shall be
given or made—
(i) in the matter of direct recruitment to posts in any
such cadre referred to in sub-clause (b) as may be
specified in this behalf in the order;
(ii) in the matter of admission to any such University
or other educational institution referred to in sub-
71
clause (b) as may be specified in this behalf in the
order,
to or in favour of candidates who have resided or studied for any
period specified in the order in the local area in respect of such
cadre, University or other educational institution, as the case
may be.
(3) x x x
10) The provisions of this article and of any order made by the
President thereunder shall have effect notwithstanding anything
in any other provision of this Constitution or in any other law for
the time being in force.”
The provisions contained in Article 371D were inserted by the
Constitution (Thirtysecond Amendment) Act, 1973, w.e.f. 1.7.1974
and has further been amended by the Andhra Pradesh Reorganisation
Act, 2014, applicable to the State of Andhra Pradesh or the State of
Telangana.
85. The President in exercise of powers under Article 371D(1) and
(2) promulgated order, namely, Andhra Pradesh Public Employment
(Organisation of Local Cadres and Regulation of Direct Recruitment)
Order, 1975. Para 3 provided for organisation of local cadres.
Recruitment to various categories has to be made to local cadres
taking district as a unit or 3 or 4 districts comprising as a zone. The
local area has been defined in Para 6(1) thus:
“Local areas: (1) Each district shall be regarded as a local
area –
(i) For direct recruitment to posts in any local cadre under
the State Government comprising all or any of the posts in
any department in that district belonging to the category of
Junior Assistants or to any other category equivalent to or
lower than that of a Junior Assistant.
72
(ii) For direct recruitment to posts in any cadre under any
local authority within that district, carrying a sale of pay the
minimum of which does not exceed the minimum of the
scale of pay of a Junior Assistant or a fixed pay not
exceeding that amount.”
For recruitment to the posts of teachers, a district is a unit.
Para 7 defines local candidates. Para 8 provides that 80 per cent
of the posts to be filled by direct recruitment. The matter of
recruitment to various local cadres is required to be in terms of the
provisions of the Presidential Order issued under Article 371D. The
recruitment of teachers is to be made for which district is a unit.
86. In Dr. C. Surekha v. Union of India, AIR 1989 SC 44, this Court
held that Article 371D does not militate against the basic structure of
the Constitution. Similar is the view taken in Dr. Fazal Ghafoor v.
Union of India, AIR 1989 SC 48.
87. This Court in V. Jagannadha Rao and Ors. v. State of A.P. and
Ors., (2001) 10 SCC 401 held that Article 371D(1) of the Constitution
unequivocally indicates that the said article and any order made by
the President thereunder shall have effect notwithstanding anything in
any other provision of the Constitution or any other law for the time
being in force. The Court observed:
“21. In Sadanandam case, 1989 Supp. (1) SCC 574, while
considering the legality of amended provisions of the Rules
framed by the State Government and in sustaining the same, this
Court was of the opinion that as the aforesaid Rules had been
framed under Section (3) of the Andhra Pradesh Ordinance 5 of
73
1983 read with para 5(2)(a) of the Presidential Order, the
conclusion of the Tribunal in striking down the rule is erroneous.
The Court was of the opinion that mode of recruitment and
category from which the recruitment to a service should be made
are policy matters exclusively within the purview and domain of
the executive and it would not be appropriate for judicial bodies
to sit in judgment over the wisdom of the executive in choosing
the mode of recruitment or the categories from which the
recruitment should be made. In our considered opinion, both the
aforesaid reasons do not constitute a true interpretation of the
provisions of the Presidential Order. At the outset, it may be
noticed that Article 371-D(10) of the Constitution unequivocally
indicates that the said article and any order made by the
President thereunder shall have effect notwithstanding anything
in any other provision of the Constitution or in any other law for
the time being in force. Necessarily, therefore, if it is construed
and held that the Presidential Order prohibits consideration of
the employees from the feeder category from other units then
such a rule made by the Governor under the proviso to Article
309 of the Constitution will have to be struck down. Then again
in exercise of powers under para 5(2) of the Presidential Order if
the State Government makes any provision, which is outside the
purview of the authority of the Government under para 5(2) of
the Order itself, then the said provision also has to be struck
down. Having construed the Rules framed by the Governor
under proviso to Article 309 of the Constitution from the
aforesaid standpoint, the conclusion is irresistible that the said
Rule to the extent indicated by the Tribunal is constitutionally
invalid and its conclusion is unassailable. In the case in hand,
the impugned provisions do not appear to have been framed in
exercise of powers under para 5(2) of the Presidential Order and
as such the same being a Rule made under proviso to Article 309
of the Constitution, the Presidential Order would prevail, as
provided under Article 371-D(10) of the Constitution. Even if it
is construed to be an order made under para 5(2) of the
Presidential Order, then also the same would be invalid being
beyond the permissible limits provided under the said paragraph.
In this view of the matter, the Tribunal rightly held the provision
to the extent it provides for consideration of employees of the
Factories and Boilers Units to be invalid, for the purpose of
promotion to the higher post in the Labour Unit and as such we
see no justification for our interference with the said conclusion
of the Tribunal and the earlier judgment of this Court in
Sadanandam case, 1989 Supp. (1) SCC 574, must be held to
have not been correctly decided. As a consequence, so would be
the case with Satyanarayana Rao case, (2000) 4 SCC 262.”
74
(emphasis supplied by us)
88. In S. Prakasha Rao and Anr. v. Commissioner of Commercial
Taxes and Ors., (1990) 2 SCC 259, this Court opined that once the
President makes an order under Article 371D(1) and (2), the State
Government loses its inherent power to deal with matters relating to
services, it may exercise its powers on matters dealt with the
Presidential Order only in the manner specified in the order. This
Court observed:
“19. It is seen that the order was made pursuant to the power
given to the President under Article 371-D, which is a special
provision made under the Constitution (Thirty-second
Amendment) Act, 1973 peculiar to the State of Andhra Pradesh
due to historical background. Therefore, the State Government
have no inherent power in creating a zone or organising local
cadre within the zones except in accordance with the provisions
made in the Andhra Pradesh Public Employment (Organisation
of Local Cadres and Regulation for Direct Recruitment) Order. It
is true that the clause ‘or constituted otherwise’ defined in
paragraph 2(e) is of wide import, but is only relatable to the
power given by the President to the State Government to
organise local cadre. Paragraph 3(1) is the source of that power,
but the exercise thereof is hedged with a limitation of twelve
months from the date of commencement of the Order. Therefore,
the power to organise class or classes of post of civil services of,
and class or classes of civil posts, under the State into different
local cadres should be exercised by the State Government in
accordance with paragraph 3(1) before the expiry of the twelve
months from October 20, 1975. If the exercise of the power is
not circumscribed within limitation, certainly under General
Clauses Act the power could be exercised from time to time in
organising local cadres to meet the administrative exigencies.
The prescription of limitation is a fetter put on the exercise of
power by the State Government. Obviously, realising this reality
and the need to organise local cadres, subsequent thereto the
amendment was made and was published in GOMs No. 34 G.A.
dated January 24, 1981 introducing proviso to paragraph 3(1).
75
Thereunder, notwithstanding the expiry of the said period, the
President alone has been given power to organise local cadres in
respect of class or classes of posts in civil services and class or
classes of civil posts, under the State. That too subject to the
conditions precedent laid therein. Thus, it is the President and the
President alone who has been given power under proviso by an
order to require the State Government to organise the local
cadres in relation to any class or classes of posts in the civil
services of and class or classes of civil posts under the State into
different local cadres. It could be considered in yet another
perspective. Paragraph 2(e) indicates that President himself may
create a local cadre instead of requiring the State Government to
organise local cadre. For instance, paragraph 3(6) empowered
the President to create local cadre for the city of Hyderabad.
Similarly, under proviso to paragraph 3(1) the President may
require the State Government to create a local cadre within a
zone. So the phrase ‘or constituted otherwise’ cannot be
understood de hors the scheme of the Presidential Order. No
doubt in common parlance, the word ‘otherwise’ is of ‘wide’
amplitude. This Court in K.K. Kochuni v. States of Madras and
Kerala, AIR 1960 SC 1080, Subba Rao, J., as he then was,
speaking per majority in paragraph 50 while construing the word
‘otherwise’ held that it must be confined to things analogous to
right or contract such as lost grant, immemorial user etc. The
word ‘otherwise’ in the context only means whatever may be the
origin of the receipt of maintenance. The ratio thereunder cannot
be extended in the contextual circumstances obtainable on the
facts in this case. Similarly, in Lilavati Bai v. State of Bombay,
AIR 1957 SC 521, Sinha J., as he then was, speaking for the
Constitution Bench interpreting Explanation (a) to Section 6 of
Bombay Land Requisition Act, 1948, as amended in 1950 and
repelling the application of ejusdem generis doctrine laid the law
thus:
“The legislature has been cautious and thoroughgoing
enough to bar all avenues of escape by using the words ‘or
otherwise’. Those words are not words of limitation but of
extension so as to cover all possible ways in which a
vacancy may occur. Generally speaking a tenant’s
occupation of his premises ceases when his tenancy is
terminated by acts of parties or by operation of law or by
eviction by the landlord or by assignment or transfer of the
tenant’s interest. But the legislature, when it used the words
‘or otherwise’, apparently intended to cover other cases
76
which may not come within the meaning of the preceding
clauses, for example, a case where the tenant’s occupation
has ceased as a result of trespass by a third party. The
legislature, in our opinion, intended to cover all possible
cases of vacancy occurring due to any reasons whatsoever.”
Thus, contextual interpretation to the words ‘or otherwise’ was
given by this Court. Therefore, the phrase ‘constituted otherwise’
is to be understood in that context and purpose which Article
371-D and the Presidential Order seek to achieve. If the
interpretation given by the appellants is given acceptance it
amounts to giving blanket power to the State Government to
create local cadres at its will tending to defeat the object of
Article 371-D and the Presidential Order. Accordingly, we have
no hesitation to reject the interpretation of wider connotation.
The ratio in these decisions does not render any assistance to the
appellants.
20. Similarly, the power given to the State Government in subparagraph (7) of paragraph 3 of the Order is only to organise a
separate cadre in respect of any category of posts in any
department when more than one cadre in respect of such
category exists in each department; so the State Government
may organise one cadre when more than one cadre in respect of
different categories of posts exist in a zone under paragraph 3(1)
of the Order. It is clear when we see the language in paragraph
3(7) which says that: “nothing in this order shall be deemed to
prevent the State from organising”. Take for instance while
creating local cadre co-terminus with the administrative control
of the Deputy Commissioner, Commercial Taxes, local cadre for
Senior Assistants may be created. It is also made manifest by
instructions 7 and 9(e) of the instructions contained in GOMs
No. 728 GAD dated November 1, 1975. But, as stated earlier, it
is only for the purpose of administrative convenience, not for the
purpose of recruitment, seniority or promotion etc., as the case
may be. Thus, we have no hesitation to hold that the creation of a
division and maintaining separate seniority of Junior Assistants
and Senior Assistants for Adilabad and Warangal Divisions are
illegal, contrary to order issued in GOMs No. 581 and the
Andhra Pradesh Employment (Organisation of Local Cadre and
Regulation of Direct Recruitment) Order, 1975. The single
member of the Tribunal in R.P. No. 101 of 1982 dated April 1,
1982 did not consider the effect of the order in proper
perspective and is illegal.”
(emphasis supplied by us)
77
No doubt about it that the provision to have overriding effect
shall have any nexus as to the subject matter of other provisions.
89. The main question to be considered is whether there is any
conflict between the Presidential Order and the G.O. Ms. No. 3 of 2000
issued under the order of the Governor under Para 5(1) of the Fifth
Schedule of the Constitution. Considering the geographical disparity
in public employment, Article 371D was inserted in the Constitution,
providing candidates from certain districts/zones to form the local
cadre for different posts for different parts of the States. The
Presidential Order was issued providing district/zone for local cadre,
on the other hand, the order issued by the Governor has reserved all
the posts of teachers in the Scheduled Areas for Schedule Tribe
candidates. The aspiring candidates of the district/zone in the
Scheduled Area cannot apply for the post of teachers in the district as
100 per cent reservation was made vide G.O.Ms. No. 3 of 2000 by the
Governor. It is also not disputed that aspiring candidates cannot
apply outside the district/zone because of the restrictions under
Article 371D of the Constitution. As there is 100 per cent reservation
provided for the Scheduled Tribes in the Scheduled Areas, other
candidates of Scheduled Castes, General and Other Backward Classes
category cannot apply at all in other districts. They are being denied
the opportunity of getting the employment as against the posts in
78
question. Thus, the order issued by the Governor is clearly in conflict
with the Presidential Order issued under Article 371D. The
candidates of local areas or other candidates except for Scheduled
Tribes have been deprived of the opportunity of seeking public
employment because of the order issued by the Governor, and they
cannot apply outside the local area in view of the Presidential
notification. The Presidential notification intends that they have to
apply within the district, and the Governor's notification takes away
that right. Thus, there is a clear repugnancy between the notification
issued by the President and that subsequent order issued by the
Governor in the exercise of powers under Para 5, Fifth Schedule of the
Constitution. It is not possible to harmonise both the notifications.
Apart from that, there is total deprivation. It is not factually correct
that Presidential Order did not deal with Scheduled Areas. The
Presidential Order applied to the entire State and carved out a special
provision that applies with a nonobstante clause.
90. The Governor is competent to issue an order which is not in
conflict with the Presidential Order. The Governor issued the order
when the Presidential Order was already in force in the entire State.
The Governor could not have issued the order in derogation to the
Presidential Order. In our opinion, 100 per cent reservation could not
have been provided as that violates the Presidential Order.
79
In Re: Question No.2: whether 100% reservation is permissible
under the Constitution?
91. The Constitution has provided for justice – social, economic and
political; liberty of thought, expression, belief, faith and worship;
equality of status and opportunity; and to promote among them all
fraternity assuring the dignity of the individual and the unity and
integrity of the Nation. The framers of the Constitution have taken
great care and deliberation so that it reflects the high purpose and
noble objectives. It aims at the formation of an egalitarian order, free
from exploitation, the fundamental equality of humans and to provide
support to the weaker sections of the society and wherefrom there is a
disparity to make them equal by providing protective discrimination.
The Constitution in the historic perspective leans in favour of
providing equality and those aims sought to be achieved by the
Constitution by giving special protection to the socially and
economically backward classes by providing a protective umbrella for
their social emancipation and providing them equal justice, ensuring
the right of equality by providing helping hand to them by way of
reservation measures. Article 14 guarantees equality before the law or
the equal protection of the laws. Be it a matter of distribution of State
largesse; the Government is obligated to follow the constitutionalism.
State action cannot be arbitrary and discriminatory and cannot be
guided by extraneous considerations, which is opposed to equality.
80
The concept of equality is the antithesis of arbitrariness in action.
There cannot be any legislation in violation of equality, which violates
the basic concept of equality as enshrined in Part III of the
Constitution. An administrative order has to be tested on the anvil of
nonarbitrariness. Any action of the legislature, administrative or
quasijudicial, is open to challenge if it is in conflict with the
Constitution or the Act and applicable general principles of law. The
protective discrimination of persons residing in backward areas is
permissible, as held in M.P. Oil Extraction & Anr. v. State of M.P. &
Ors., (1997) 7 SCC 592. The industrial units were set up in backward
areas at the instance of the Government. Special treatment was given
to them for the supply of sal seeds at a concessional rate of royalty. It
was held in the aforesaid decision that the distinction was reasonable.
92. The concept of equality cannot be pressed to commit another
wrong. The concept of equality enshrined in Article 14 of the
Constitution is a positive concept. It is not a concept of negative
equality. It cannot be used to perpetuate an illegality. Equity cannot
be applied when it arises out of illegality. The doctrine of equity would
not be attracted when the benefits were conferred on the basis of
illegality, as held in Usha Mehta v. Government of Andhra Pradesh,
(2012) 12 SCC 419; John Vallamattom v. Union of India, (2003) 6 SCC
611; General Manager, Uttranchal Jal Sansthan v. Laxmi Devi, (2009) 7
81
SCC 205, State of West Bengal v. Debashish Mukherjee, AIR 2011 SC
3667.
93. Article 14 is to be understood in the light of the Directive
Principles, as observed in Indra Sawhney (supra). The classification
made cannot be unreasonable. It can be based on a reasonable basis.
It cannot be arbitrary but must be rational. It should be based on
intelligible differentia and must have rational nexus to the object
sought to be achieved. There are various fields in which Article 14 has
extended its reach and ambit. The provision is very deep and
pervasive. It kills the evil of discrimination to bring equality.
94. Article 15 of the Constitution prohibits discrimination based on
religion, race, caste, sex, or place of birth. Article 15(4) provides that
the State can make any special provision for the advancement of
socially and economically backward classes or scheduled castes and
scheduled tribes. Similarly, Article 15(5) enables the State to make
special provisions for educationally backward classes, Scheduled
Castes, and Scheduled Tribes for admission to educational
institutions, including private educational institutions, whether aided
or unaided by the State. Article 15(6) enables the State Government to
make any special provision for the advancement of economically
weaker sections of citizens other than the classes mentioned in Article
15(4) and 15(5). The State can also make a provision under Article
82
15(6)(b) for the advancement of economically weaker sections of the
citizens relating to their admission to educational institutions,
including private educational institutions, whether aided or unaided
except for the minority educational institutions. The State has the
power to notify economically weaker sections from time to time based
on family income and other indicators of economic disadvantage.
95. Article 16 deals with equality of opportunity in matters of public
employment, which ensures equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the
State. Article 16(2) provides that no citizen shall be discriminated on
the grounds of religion, race, caste, sex, descent, place of birth,
residences or any of them and be ineligible for, or discriminated
against in respect of any employment or office under the State. Article
16(3) enables the Parliament to make law regarding a class or classes
of employment or appointment to an office providing for any
requirement as to residence within that State or Union Territory before
such employment or appointment. Under Article 16(4), State can
provide reservation in appointments or posts in favour of any
backward class of citizens which, in its opinion, is not adequately
represented in services under State. Directive Principles of State Policy
enjoin a duty upon the State to secure a social order for the promotion
and welfare of the people, to promote justice – social, economic, and
83
political; and all institutions of the national life have to endeavour
furtherance of the aboveavowed purposes. The State has to strive to
minimise inequalities of income, eliminate the status of opportunities
not only amongst individuals but also groups of people engaged in
different areas, and engaged in different professions. Article 39(b) and
(c) aim at the distribution of State largesse and control of the material
resources of the community as best to subserve the common good,
and that the operation of the economic system does not result in the
concentration of wealth and means of production to the collective
detriment. Article 47 of the Constitution deals with the duty of the
State to raise the level of nutrition and the standard of living and to
improve public health. Article 51A (a) to (k) contains the fundamental
duties, and every citizen of India must promote harmony and the spirit
of common brotherhood amongst all the people of India transcending
religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women. Article 51A(j) confers a
duty to strive towards in all spheres of individual and collective
activity so that the nation steadily rises to higher levels of endeavours
and achievement. Article 51A has been used as an interpretative tool
where the constitutionality of an Act is challenged. The Court
considered the duties in Mohan Kumar Singhania & Ors. v. Union of
India & Ors., 1992 Supp. (1) SCC 594 thus:
84
“41. In this regard, it will be worthwhile to refer to Article 51-A
in Part IV-A under the caption 'Fundamental Duties' added by the
Constitution (Forty-second Amendment) Act, 1976, in
accordance with the recommendations of the Swaran Singh
Committee. The said article contains a mandate of the
Constitution that it shall be the duty of every citizen of India to
do the various things specified in clauses (a) to (j) of which
clause (j) commands that it is the duty of every citizen of India to
strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher
levels of endeavour and achievement.
42. In our view, the effort taken by the government in giving
utmost importance to the training programme of the selectees so
that this higher civil service being the topmost service of the
country is not wasted and does not become fruitless during the
training period is in consonance with the provisions of Article
51-A(j).”
96. The Constitution of India contains special provisions for
scheduled castes and scheduled tribes in Part XVI. Article 330
provides for reservation of seats for scheduled castes and scheduled
tribes in the House of the People. Article 332 provides for “reservation
of seats” for scheduled castes and scheduled tribes in the legislative
assemblies of the States. Article 334 provides for “reservation of seats”
and special representation to “cease after a certain period." The
provision was made initially for a lesser period. After that, it was
extended for 20 years, 30 years, 40 years, 50 years, 60
years, and now enhanced to 70 years by amendment made in 2019.
Article 335 provides that claims of the members of the scheduled
castes and the scheduled tribes, for maintenance of efficiency of
administration, in the making of appointments to services and posts
85
in connection with the affairs of the Union or a State; and State can
relax criteria in qualifying marks in any examination or lower
standards of evaluation, for reservation in matters of promotion to any
class or classes of services or posts in connection with the affairs of
the Union or a State.
97. Article 338 provides for constitution of National Commission for
Scheduled Castes to investigate and monitor all matters relating to the
safeguards provided for the scheduled castes and to evaluate the
working of such safeguards; to inquire into specific complaints
concerning the deprivation of rights and safeguards of the scheduled
castes; to participate and advise on the planning process of socioeconomic development of the scheduled castes and to evaluate the
progress of their development under the Union and any State; to
present to the President, annually and at such other times as the
Commission may deem fit, reports upon the working of those
safeguards are provided in Article 338(5)(d). Article 338(6) requires
that the President shall cause all such reports to be laid before each
House of Parliament and a memorandum explaining action taken or
proposed to be taken on recommendations relating to the Union and
the reasons for nonacceptance, if any, of any of such
recommendations. A copy of the report has to be forwarded to the
Governor to be dealt with in terms of Article 338(7). The Commission
86
has the power of inquiring into any complaint as specified in Article
338(8), and Article 338A provides for the constitution of a National
Commission for Scheduled Tribes. Similar provisions are contained for
National Commission for Scheduled Tribes in Article 338A. Article 339
envisages control of the Union over the administration of scheduled
areas and the welfare of the scheduled tribes. Article 340 deals with
the appointment of a Commission to investigate the conditions of
backward classes.
98. Under Article 341 the President concerning any State or Union
territory, may specify the castes, races or tribes or parts of or groups
within castes, races or tribes which shall for the Constitution, be
deemed to be scheduled castes in relation to that State or Union
territory, as the case may be. Article 341(2) confers power on the
Parliament to include in or exclude from the list of scheduled castes
specified in a notification issued under Article 342(1) any caste, race
or tribe or part of or group within any caste, race or tribe, and any
subsequent notification shall not vary the same. Power can be
exercised only once. Article 342 contains a provision in respect of
scheduled tribes. The President may, by notification specify the tribe
or tribal communities or parts of or groups within tribes or tribal
communities which shall for the Constitution, be deemed to be
scheduled tribes in relation to that State or the Union territory, as the
87
case may be. The Parliament may include in or exclude from the list of
scheduled tribes, any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid, any
subsequent notification shall not vary a notification issued under the
said clause. Thus, the power to vary can be exercised only once. A
similar provision has been added in Article 342A concerning socially
and educationally backward classes.
99. Article 243T deals with reservation of seats for scheduled castes
and scheduled tribes in every municipality in proportion to the
population of the scheduled castes or scheduled tribes in the
municipal area to the total population of that area and provides for
rotation of seats. Article 243D provides for reservation of seats for
scheduled castes and scheduled tribes in every Panchayat, and
Panchayat is constituted in every State, Panchayat at the village,
intermediate and district levels as provided in Article 243B. It is
mandatory to constitute such Panchayat at the district level in a State
having a population exceeding 20 lakhs.
100. Article 244, with which we are concerned in the present matter,
provides for the administration of scheduled areas and tribal areas.
The Constitution is spatially it provides Scheduled Areas under Article
244, Schedule V, Schedule VI, and special provisions have been made
concerning various States under Articles 370, 371A to 371J. For
88
better administration, the Constitution has divided India into States
and Union Territories as per Articles 3 and 4.
101. Concerning classification in a constitutional dispensation for
scheduled castes and scheduled tribes, Dr. Ambedkar’s speech in the
Constituent Assembly Debates, page 979, 11th at pages 97980 is
referred to by Dr. Dhawan. Same is extracted hereunder:
"We must begin by acknowledging the fact that there is a
complete absence of two things in Indian Society. One of these
is equality. On the social plane, we have in India a society based
on the principle of graded inequality, which means elevation for
some and degradation for others. On the economic plane, we
have a society in which there are some who have immense
wealth as against many who live in abject poverty. On the 26th of
January, we are going to enter into a life of contradictions. In
politics, we will have equality and in social and economic life we
will have inequality. In politics we will be recognizing the
principle of one man one vote one value. In our social and
economic life we shall, by reason of our social and economic
structure, continue to defy the principle of one man one vote one
value. How long shall we continue to live this life of
contradictions? How long shall we continue to deny equality in
our social and economic life? If we continue to deny it for long,
we shall do so by putting out political democracy in peril. We
must remove this contradiction at the earliest possible moment or
else those suffer from inequality will blow up the structure of
political democracy which this Assembly has so laboriously built
up.
The second thing we are wanting in is recognition of the
principle of fraternity. What does fraternity mean? Fraternity
means a sense of common brotherhood of all Indians - if Indians
think of themselves as being one people. It is the principle
which gives unity and solidarity to social life… The sooner we
realize that we are not as yet a nation and seriously think of ways
and means of realizing this goal, the better for us….. For
fraternity can be a fact, only where there is a nation. Without
fraternity, equality and liberty will be no deeper than a coat of
paint."
89
102. The scheduled castes and scheduled tribes have been provided
with special measures to make them equal to the others. Efforts have
been made to protect their land and property by enacting various
laws. Special provisions have also been carved out to preserve their
human dignity with respect, in the shape of trusts in Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The
scheduled castes and scheduled tribes were making a struggle for
freedom and various rights in the country. They suffered
discrimination; fruits of development have not percolated down to
them. They remained an unequal and vulnerable section of the society
and treated for centuries as outcasts socially. That is the basis for
providing them reservation and special treatment to provide them
upliftment and to eradicate their sufferings. We have not been able to
eradicate untouchability in the real sense so far and to provide safety
and security to downtrodden class and to ensure that their rights are
preserved and protected, and they equally enjoy frugal comforts of life.
103. Concerning tribals, we see that there are several schemes for
their upliftment, but we still see that at certain places, they are still
kept in isolation and are not even able to get basic amenities,
education, and frugal comforts of life. These classes have an equal
right to life available to all human beings. Considering the social
backwardness, which includes economic aspects also, these are the
90
classes that have suffered historic disabilities arising from
discrimination, poverty, educational backwardness to provide them
empowerment and to make them part of the mainstream. Special
provisions have been carved out in the Constitution. Article 16(4) is
not an exception to Article 16(1) being part of equality. The reservation
can be rectified. Section 16(4) aims at group backwardness.
Reservations are provided due to discrimination and disadvantages
suffered by the backward classes, scheduled castes and scheduled
tribes for sharing the State power.
104. The concept of sharing State power was considered in Indra
Sawhney (supra). Sawant, J., in his opinion, dealt with the idea of
sharing of State power thus:
“483. That only economic backwardness was not in the
contemplation of the Constitution is made further clear by the
fact that at the time of the First Amendment to the Constitution
which added clause (4) to Article 15 of the Constitution, one of
the Members, Prof. K.T. Shah wanted the elimination of the
word “classes” in and the addition of the word “economically” to
the qualifiers of the term “backward classes”. This Amendment
was not accepted. Prime Minister Nehru himself stated that the
addition of the word “economically” would put the language of
the article at variance with that of Article 340. He added that
“socially” is a much wider term including many things and
certainly including “economically”. This shows that economic
consideration alone as the basis of backwardness was not only
not intended but positively discarded.”
(emphasis supplied)
Justice Jeevan Reddy dealt with the same, thus:
“694. The above material makes it amply clear that the objective
behind clause (4) of Article 16 was the sharing of State power.
91
The State power which was almost exclusively monopolised by
the upper castes i.e., a few communities, was now sought to be
made broad-based. The backward communities who were till
then kept out of apparatus of power, were sought to be inducted
thereinto and since that was not practicable in the normal course,
a special provision was made to effectuate the said objective. In
short, the objective behind Article 16(4) is empowerment of
the deprived backward communities — to give them a share
in the administrative apparatus and in the governance of the
community.
750. Dr Rajeev Dhavan, learned counsel appearing for
Srinarayana Dharma Paripalana Yogam (an association of
Ezhavas in Kerala) submitted that Articles 16(4) and 15(4)
occupy different fields and serve different purposes. Whereas
Article 15(4) contemplates positive action programmes, Article
16(4) enables the State to undertake schemes of positive
discrimination. For this reason, the class of intended
beneficiaries under both the clauses is different. The social and
educational backwardness which is the basis of identifying
backwardness under Article 15(4) is only partly true in the case
of ‘backward class of citizens’ in Article 16(4). The expression
“any backward class of citizens” occurring in Article 16(4) must
be understood in the light of the purpose of the said clause
namely, empowerment of those groups and classes which have
been kept out of the administration — classes which have
suffered historic disabilities arising from discrimination or
disadvantage or both and who must now be provided entry into
the administrative apparatus. In the light of the fact that the
Scheduled Castes and Scheduled Tribes were also intended to be
beneficiaries of Article 16(4) there is no reason why caste cannot
be an exclusive criterion for determining beneficiaries under
Article 16(4). Counsel emphasised the fact that Article 16(4)
speaks of group protection and not individual protection.
788. Further, if one keeps in mind the context in which Article
16(4) was enacted it would be clear that the accent was upon
social backwardness. It goes without saying that in the Indian
context, social backwardness leads to educational backwardness
and both of them together lead to poverty — which in turn
breeds and perpetuates the social and educational backwardness.
They feed upon each other constituting a vicious circle. It is a
well-known fact that till independence the administrative
apparatus was manned almost exclusively by members of the
‘upper’ castes. The Shudras, the Scheduled Castes and the
Scheduled Tribes and other similar backward social groups
92
among Muslims and Christians had practically no entry into the
administrative apparatus. It was this imbalance which was
sought to be redressed by providing for reservations in favour of
such backward classes. In this sense Dr Rajeev Dhavan may be
right when he says that the object of Article 16(4) was
“empowerment” of the backward classes. The idea was to
enable them to share the state power. We are, accordingly, of the
opinion that the backwardness contemplated by Article 16(4) is
mainly social backwardness. It would not be correct to say that
the backwardness under Article 16(4) should be both social and
educational. The Scheduled Tribes and the Scheduled Castes are
without a doubt backward for the purposes of the clause; no one
has suggested that they should satisfy the test of social and
educational backwardness. It is necessary to state at this stage
that the Mandal Commission appointed under Article 340 was
concerned only with the socially and educationally backward
classes contemplated by the said article. Even so, it is evident
that social backwardness has been given precedence over others
by the Mandal Commission — 12 out of 22 total points. Social
backwardness — it may be reiterated — leads to educational and
economic backwardness. No objection can be, nor is taken, to
the validity and relevancy of the criteria adopted by the Mandal
Commission. For a proper appreciation of the criteria adopted by
the Mandal Commission and the difficulties in the way of
evolving the criteria of backwardness, one must read closely
Chapters III and XI of Volume I along with Appendixes XII and
XXI in Volume II. Appendix XII is the Report of the Research
Planning Team of the Sociologists while Appendix XXI is the
‘Final List of Tables’ adopted in the course of socio-educational
survey. In particular, one may read paras 11.18 to 11.22 in
Chapter XI, which are quoted hereunder for ready reference:
“11.18. Technical Committee constituted a SubCommittee of Experts (Appendix-20, Volume II) to help the
Commission prepare ‘Indicators of Backwardness’ for
analysing data contained in computerised tables. After a
series of meetings and a lot of testing of proposed
indicators against the tabulated data, the number of tables
actually required for the Commission’s work was reduced
to 31 (Appendix-21, Volume II). The formulation and
refinement of indicators involved testing and validation
checks at every stage.
11.19. In this connection, it may be useful to point out
that in social sciences no mathematical formulae or precise
bench-marks are available for determining various social
traits. A survey of the above type has to tread warily on
unfamiliar ground and evolve its own norms and bench-
93
marks. This exercise was full of hidden pitfalls and two
simple examples are given below to illustrate this point.
11.20. In Balaji case the Supreme Court held that if a
particular community is to be treated as educationally
backward, the divergence between its educational level and
that of the State average should not be marginal but
substantial. The Court considered 50% divergence to be
satisfactory. Now, 80% of the population of Bihar (1971
Census) is illiterate. To beat this percentage figure by a
margin of 50% will mean that 120% members of a
caste/class should be illiterates. In fact it will be seen that in
this case even 25% divergence will stretch us to the
maximum saturation point of 100%.
11.21. In the Indian situation where vast majority of the
people are illiterate, poor or backward, one has to be very
careful in setting deviations from the norms as, in our
conditions, norms themselves are very low. For example,
Per Capita Consumer Expenditure for 1977-78 at current
prices was Rs 991 per annum. For the same period, the
poverty line for urban areas was at Rs 900 per annum and
for rural areas at Rs 780. It will be seen that this poverty
line is quite close to the Per Capita Consumer Expenditure
of an average Indian. Now following the dictum of Balaji
case, if 50% deviation from this average Per Capita
Consumer Expenditure was to be accepted to identify
‘economically backward’ classes, their income level will
have to be 50% below the Per Capita Consumer
Expenditure i.e. less than Rs 495.5 per year. This figure is
so much below the poverty line both in urban and rural
areas that most of the people may die of starvation before
they qualify for such a distinction.
11.22. In view of the above, ‘Indicators for
Backwardness’ were tested against various cut-off points.
For doing so, about a dozen castes well-known for their
social and educational backwardness were selected from
amongst the castes covered by our survey in a particular
State. These were treated as ‘Control’ and validation checks
were carried out by testing them against ‘Indicators’ at
various cut-off points. For instance, one of the ‘Indicators’
for social backwardness is the rate of student drop-outs in
the age group 5-15 years as compared to the State average.
As a result of the above tests, it was seen that in
educationally backward castes this rate is at least 25%
above the State average. Further, it was also noticed that
this deviation of 25% from the State average in the case of
most of the ‘Indicators’ gave satisfactory results. In view of
this, wherever an ‘Indicator’ was based on deviation from
94
the State average, it was fixed at 25%, because a deviation
of 50% was seen to give wholly unsatisfactory results and,
at times, to create anomalous situations.”
(emphasis supplied by us)
(a). In Indra Sawhney (supra), the Court held that reservation is not
a proportionate representation but adequate, thus:
807. We must, however, point out that clause (4) speaks of
adequate representation and not proportionate representation.
Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is
accepted only in Articles 330 and 332 of the Constitution and
that too for a limited period. These articles speak of reservation
of seats in Lok Sabha and the State legislatures in favour of
Scheduled Tribes and Scheduled Castes proportionate to their
population, but they are only temporary and special provisions. It
is therefore not possible to accept the theory of proportionate
representation though the proportion of population of backward
classes to the total population would certainly be relevant. Just as
every power must be exercised reasonably and fairly, the power
conferred by clause (4) of Article 16 should also be exercised in
a fair manner and within reasonable limits — and what is more
reasonable than to say that reservation under clause (4) shall not
exceed 50% of the appointments or posts, barring certain
extraordinary situations as explained hereinafter. From this point
of view, the 27% reservation provided by the impugned
Memorandums in favour of backward classes is well within the
reasonable limits. Together with reservation in favour of
Scheduled Castes and Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference may be had to the Full
Bench decision of the Andhra Pradesh High Court in V.
Narayana Rao v. State of A.P., striking down the enhancement of
reservation from 25% to 44% for OBCs. The said enhancement
had the effect of taking the total reservation under Article 16(4)
to 65%.
(b). The expression ‘socially backward’ holds the key to define
backward as held in Indra Sawhney (supra):
“774. In our opinion too, the words “class of citizens — not
adequately represented in the services under the State” would
have been a vague and uncertain description. By adding the word
“backward” and by the speeches of Dr Ambedkar and Shri K.M.
95
Munshi, it was made clear that the “class of citizens … not
adequately represented in the services under the State” meant
only those classes of citizens who were not so represented on
account of their social backwardness.”
(c). In Indra Sawhney (supra), the Court further laid down that
reservation are not antimeritarian. Following is the relevant
discussion:
“832. In Balaji and other cases, it was assumed that reservations
are necessarily anti-meritarian. For example, in Janki Prasad
Parimoo, it was observed, "it is implicit in the idea of reservation
that a less meritorious person be preferred to another who is
more meritorious." To the same effect is the opinion of Khanna, J
in Thomas, though it is a minority opinion. Even Subba Rao, J,
who did not agree with this view, did recognize some force in it.
In his dissenting opinion in Devadasan while holding that there
is no conflict between Article 16(4) and Article 335, he did say,
"it is inevitable in the nature of reservation that there will be a
lowering of standards to some extent," but, he said, on that
account, the provision cannot be said to be bad, inasmuch as in
that case, the State had, as a matter of fact, prescribed minimum
qualifications, and only those possessing such minimum
qualifications were appointed. This view was, however, not
accepted by Krishna Iyer, J in Thomas. He said: (SCC p. 366,
para 132)
“[E]fficiency means, in terms of good government, not marks
in examinations only, but responsible and responsive service to
the people. A chaotic genius is a grave danger in public
administration. The inputs of efficiency include a sense of
belonging and of accountability which springs in the bosom of
the bureaucracy (not pejoratively used) if its composition takes
in also the weaker segments of ‘We, the people of India’. No
other understanding can reconcile the claim of the radical present
and the hangover of the unjust past.”
833. A similar view was expressed in Vasanth Kumar by
Chinnappa Reddy, J. The learned Judge said (SCC p. 739, para
36)
“[T]he mere securing of high marks at an examination may
not necessarily mark out a good administrator. An efficient
administrator, one takes it, must be one who possesses among
other qualities the capacity to understand with sympathy and,
therefore, to tackle bravely the problems of a large segment of
population constituting the weaker sections of the people. And,
96
who better than the ones belonging to those very sections? Why
not ask ourselves why 35 years after Independence, the position
of the Scheduled Castes, etc. has not greatly improved? Is it not a
legitimate question to ask whether things might have been
different, had the District Administrators and the State and
Central Bureaucrats been drawn in larger numbers from these
classes? Courts are not equipped to answer these questions, but
the courts may not interfere with the honest endeavours of the
Government to find answers and solutions. We do not mean to
say that efficiency in the civil service is unnecessary or that it is
a myth. All that we mean to say is that one need not make a
fastidious fetish of it.”
834. It is submitted by the learned counsel for petitioners that
reservation necessarily means appointment of less meritorious
persons, which in turn leads to lowering of efficiency of
administration. The submission, therefore, is that reservation
should be confined to a small minority of appointments/posts, —
in any event, to not more than 30%, the figure referred to in the
speech of Dr Ambedkar in the Constituent Assembly. The
mandate of Article 335, it is argued, implies that reservations
should be so operated as not to affect the efficiency of
administration. Even Article 16 and the directive of Article 46, it
is said, should be read subject to the aforesaid mandate of Article
335.
835. The respondents, on the other hand, contend that the marks
obtained at the examination/test/interview at the stage of entry
into service is not an indicium of the inherent merit of a
candidate. They rely upon the opinion of Douglas, J in DeFunis
where the learned Judge illustrates the said aspect by giving the
example of a candidate coming from disadvantaged sections of
society and yet obtaining reasonably good scores — thus
manifesting his “promise and potential” — vis-a-vis a candidate
from a higher strata obtaining higher scores. (His opinion is
referred to in para 716.) On account of the disadvantages
suffered by them and the lack of opportunities, — the
respondents say — members of backward classes of citizens may
not score equally with the members of socially advanced classes
at the inception but in course of time, they would. It would be
fallacious to presume that nature has endowed intelligence only
to the members of the forward classes. It is to be found
everywhere. It only requires an opportunity to prove itself. The
directive in Article 46 must be understood and implemented
keeping in view these aspects, say the respondents.
836. We do not think it necessary to express ourselves at any
length on the correctness or otherwise of the opposing points of
97
view referred to above. (It is, however, necessary to point out
that the mandate — if it can be called that — of Article 335 is to
take the claims of members of SC/ST into consideration,
consistent with the maintenance of efficiency of administration.
It would be a misreading of the article to say that the mandate is
maintenance of efficiency of administration.) Maybe, efficiency,
competence and merit are not synonymous concepts; maybe, it is
wrong to treat merit as synonymous with efficiency in
administration and that merit is but a component of the
efficiency of an administrator. Even so, the relevance and
significance of merit at the stage of initial recruitment cannot be
ignored. It cannot also be ignored that the very idea of
reservation implies selection of a less meritorious person. At the
same time, we recognise that this much cost has to be paid, if the
constitutional promise of social justice is to be redeemed. We
also firmly believe that given an opportunity, members of these
classes are bound to overcome their initial disadvantages and
would compete with — and may, in some cases, excel —
members of open competition. It is undeniable that nature has
endowed merit upon members of backward classes as much as it
has endowed upon members of other classes and that what is
required is an opportunity to prove it. It may not, therefore, be
said that reservations are anti-meritarian. Merit there is even
among the reserved candidates and the small difference, that may
be allowed at the stage of initial recruitment is bound to
disappear in course of time. These members too will compete
with and improve their efficiency along with others.
837. Having said this, we must append a note of clarification. In
some cases arising under Article 15, this Court has upheld the
removal of minimum qualifying marks, in the case of Scheduled
Caste/Scheduled Tribe candidates, in the matter of admission to
medical courses. For example, in State of M.P. v. Nivedita Jain
admission to medical course was regulated by an entrance test
(called Pre-Medical Test). For general candidates, the minimum
qualifying marks were 50% in the aggregate and 33% in each
subject. For Scheduled Caste/Scheduled Tribe candidates,
however, it was 40% and 30% respectively. On finding that
Scheduled Caste/Scheduled Tribe candidates equal to the number
of the seats reserved for them did not qualify on the above
standard, the Government did away with the said minimum
standard altogether. The Government’s action was challenged in
this Court but was upheld. Since it was a case under Article 15,
Article 335 had no relevance and was not applied. But in the
case of Article 16, Article 335 would be relevant and any order
on the lines of the order of the Government of Madhya Pradesh
(in Nivedita Jain) would not be permissible, being inconsistent
with the efficiency of administration. To wit, in the matter of
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appointment of Medical Officers, the Government or the Public
Service Commission cannot say that there shall be no minimum
qualifying marks for Scheduled Caste/Scheduled Tribe
candidates, while prescribing a minimum for others. It may be
permissible for the Government to prescribe a reasonably lower
standard for Scheduled Castes/Scheduled Tribes/Backward
Classes — consistent with the requirements of efficiency of
administration — it would not be permissible not to prescribe
any such minimum standard at all. While prescribing the lower
minimum standard for reserved category, the nature of duties
attached to the post and the interest of the general public should
also be kept in mind.
838. While on Article 335, we are of the opinion that there
are certain services and positions where either on account of the
nature of duties attached to them or the level (in the hierarchy) at
which they obtain, merit as explained hereinabove, alone counts.
In such situations, it may not be advisable to provide for
reservations. For example, technical posts in research and
development organisations/departments/institutions, in
specialities and super-specialities in medicine, engineering and
other such courses in physical sciences and mathematics, in
defence services and in the establishments connected therewith.
Similarly, in the case of posts at the higher echelons e.g.,
Professors (in Education), Pilots in Indian Airlines and Air
India, Scientists and Technicians in nuclear and space
application, provision for reservation would not be advisable.”
(emphasis supplied by us)
This Court observed that some relaxation has to be granted
consistent with the requirement of administration, to do social justice,
it would not be permissible not to prescribe any minimum standard at
all. This Court also observed that as to specialty in technical posts and
research development, medical engineering, defence services, physics,
and mathematics, provision for reservation would not be advisable.
(d). In Indra Sawhney (supra), the Court held that reservation could
be provided by executive order, thus:
99
“735. Shri K.K. Venugopal learned counsel for the petitioner in
writ petition No. 930 of 1990 submits that the "provision"
contemplated by clause (4) of Article 16 can be made only by
and should necessarily be made by the legislative wing of the
State and not by the executive or any other authority. He disputes
the correctness of the holding in Balaji negativing an identical
contention. He submits that since the provision made under
Article 16(4) affects the fundamental rights of other citizens,
such a provision can be made only by the Parliament/Legislature.
He submits that if the power of making the “provision” is given
to the executive, it will give room for any amount of abuse.
According to the learned counsel, the political executive, owing
to the degeneration of the electoral process, normally acts out of
political and electoral compulsions, for which reason it may not
act fairly and independently. If, on the other hand, the provision
is to be made by the legislative wing of the State, it will not only
provide an opportunity for debate and discussion in the
legislature where several shades of opinion are represented but a
balanced and unbiased decision free from the allurements of
electoral gains is more likely to emerge from such a deliberating
body. Shri Venugopal cites the example of Tamil Nadu where,
according to him, before every general election a few
communities are added to the list of backward classes, only with
a view to winning them over to the ruling party. We are not
concerned with the aspect of what is ideal or desirable but with
what is the proper meaning to be ascribed to the expression
‘provision’ in Article 16(4) having regard to the context. The use
of the expression ‘provision’ in clause (4) of Article 16 appears
to us to be not without design. According to the definition of
‘State’ in Article 12, it includes not merely the Government and
Parliament of India and Government and Legislature of each of
the States but all local authorities and other authorities within the
territory of India or under the control of the Government of India
which means that such a measure of reservation can be provided
not only in the matter of services under the Central and State
Governments but also in the services of local and other
authorities referred to in Article 12. The expression ‘Local
Authority’ is defined in Section 3(31) of the General Clauses
Act. It takes in all municipalities, Panchayats and other similar
bodies. The expression ‘other authorities’ has received extensive
attention from the court. It includes all statutory authorities and
other agencies and instrumentalities of the State
Government/Central Government. Now, would it be reasonable,
possible or practicable to say that the Parliament or the
Legislature of the State should provide for reservation of
posts/appointments in the services of all such bodies besides
providing for in respect of services under the Central/State
100
Government? This aspect would become clearer if we notice the
definition of “Law” in Article 13(3)(a). It reads:
“13(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law; …”
736. The words “order”, “bye-law”, “rule” and “regulation” in
this definition are significant. Reading the definition of “State”
in Article 12 and of “law” in Article 13(3)(a), it becomes clear
that a measure of the nature contemplated by Article 16(4) can
be provided not only by the Parliament/Legislature but also by
the executive in respect of Central/State services and by the local
bodies and “other authorities” contemplated by Article 12, in
respect of their respective services. Some of the local bodies and
some of the statutory corporations like universities may have
their own legislative wings. In such a situation, it would be
unreasonable and inappropriate to insist that reservation in all
these services should be provided by Parliament/Legislature. The
situation and circumstances of each of these bodies may vary.
The rule regarding reservation has to be framed to suit the
particular situations. All this cannot reasonably be done by
Parliament/Legislature.
737. Even textually speaking, the contention cannot be accepted.
The very use of the word “provision” in Article 16(4) is
significant. Whereas clauses (3) and (5) of Article 16 — and
clauses (2) to (6) of Article 19 — use the word “law”, Article
16(4) uses the world “provision”. Regulation of service
conditions by orders and rules made by the executive was a wellknown feature at the time of the framing of the Constitution.
Probably for this reason, a deliberate departure has been made in
the case of clause (4). Accordingly, we hold, agreeing with
Balaji, that the “provision” contemplated by Article 16(4) can
also be made by the executive wing of the Union or of the State,
as the case may be, as has been done in the present case. Balaji
has been followed recently in Comptroller and Auditor-General
of India v. Mohan Lal Mehrotra. With respect to the argument of
abuse of power by the political executive, we may say that there
is adequate safeguard against misuse by the political executive of
the power under Article 16(4) in the provision itself. Any
determination of backwardness is not a subjective exercise nor a
matter of subjective satisfaction. As held herein — as also by
earlier judgments — the exercise is an objective one. Certain
objective social and other criteria have to be satisfied before any
group or class of citizens could be treated as backward. If the
executive includes, for collateral reasons, groups or classes not
101
satisfying the relevant criteria, it would be a clear case of fraud
on power.
Question 1(b):
Whether an executive order making a ‘provision’ under Article
16(4) is enforceable forthwith?
738. A question is raised whether an executive order made in
terms of Article 16(4) is effective and enforceable by itself or
whether it is necessary that the said “provision” is enacted into a
law made by the appropriate legislature under Article 309 or is
incorporated into and issued as a Rule by the President/Governor
under the proviso to Article 309 for it to become enforceable?
Mr Ram Jethmalani submits that Article 16(4) is merely
declaratory in nature, that it is an enabling provision and that it is
not a source of power by itself. He submits that unless made into
a law by the appropriate legislature or issued as a rule in terms of
the proviso to Article 309, the “provision” so made by the
executive does not become enforceable. At the same time, he
submits that the impugned Memorandums must be deemed to be
and must be treated as Rules made and issued under the proviso
to Article 309 of the Constitution. We find it difficult to agree
with Shri Jethmalani. Once we hold that a provision under
Article 16(4) can be made by the executive, it must necessarily
follow that such a provision is effective the moment it is made. A
Constitution Bench of this Court in B.S. Yadav, (Y.V.
Chandrachud, CJ, speaking for the Bench) has observed:
“Article 235 does not confer upon the High Court the
power to make rules relating to conditions of service of
judicial officers attached to district courts and the courts
subordinate thereto. Whenever it was intended to confer on
any authority the power to make any special provisions or
rules, including rules relating to conditions of service, the
Constitution has stated so in express terms. See for example
Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and
(2), 148(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3),
229(1) and (2), 234, 237 and 283(1) and (2).”
740. It would, therefore, follow that until a law is made or rules
are issued under Article 309 with respect to reservation in
favour of backward classes, it would always be open to the
Executive Government to provide for reservation of
appointments/posts in favour of Backward Classes by an
executive order. We cannot also agree with Shri Jethmalani that
the impugned Memorandums should be treated as Rules made
under the proviso to Article 309. There is nothing in them
suggesting even distantly that they were issued under the proviso
to Article 309. They were never intended to be so, nor is that the
102
stand of the Union Government before us. They are executive
orders issued under Article 73 of the Constitution read with
clause (4) of Article 16. The mere omission of a recital “in the
name and by order of the President of India” does not affect the
validity or enforceability of the orders, as held by this Court
repeatedly.”
(emphasis supplied by us)
(e). What is sought to be achieved by Articles 14 and 16 is equality
and equality of opportunity. In Indra Sawhney (supra), this Court
emphasised that founding fathers never envisaged reservation of all
seats, and 50% shall be the rule. Some relaxation may become
imperative, but extreme caution is to be exercised, and a special case
is to be made for exceeding reservation more than 50%. This Court
held:
“808. It needs no emphasis to say that the principal aim of
Articles 14 and 16 is equality and equality of opportunity and
that clause (4) of Article 16 is but a means of achieving the very
same objective. Clause (4) is a special provision — though not
an exception to clause (1). Both the provisions have to be
harmonised, keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14.
The provision under Article 16(4) — conceived in the interest of
certain sections of society — should be balanced against the
guarantee of equality enshrined in clause (1) of Article 16 which
is a guarantee held out to every citizen and to the entire society.
It is relevant to point out that Dr Ambedkar himself
contemplated reservation being "confined to a minority of seats"
(See his speech in Constituent Assembly, set out in para 693). No
other member of the Constituent Assembly suggested otherwise.
It is, thus, clear that reservation of a majority of seats was never
envisaged by the Founding Fathers. Nor are we satisfied that the
present context requires us to depart from that concept.
809. From the above discussion, the irresistible conclusion that
follows is that the reservations contemplated in clause (4) of
Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put out of
consideration certain extraordinary situations inherent in the
great diversity of this country and the people. It might happen
103
that in far-flung and remote areas the population inhabiting those
areas might, on account of their being out of the mainstream of
national life and in view of conditions peculiar to and
characteristically to them, need to be treated in a different way,
some relaxation in this strict rule may become imperative. In
doing so, extreme caution is to be exercised and a special case
made out.
811. In this connection it is well to remember that the
reservations under Article 16(4) do not operate like a communal
reservation. It may well happen that some members belonging
to, say, Scheduled Castes get selected in the open competition
field on the basis of their own merit; they will not be counted
against the quota reserved for Scheduled Castes; they will be
treated as open competition candidates.”
(emphasis supplied by us)
105. It is apparent that despite more than 72 years of attaining
independence, we are not able to provide benefits to the bottom line,
i.e., downtrodden and oppressed classes. Benefits meant to such
classes are not reaching them. The question is writ large how to
trickle down the benefits. Panchayat, Gram Sabha has been
empowered, but still, benefits are not reaching as envisaged. The right
to information system has to be strengthened at the village level. They
must know how the money meant for development has been utilised.
Transparency of administration is vital for the removal of corruption.
They are required to be motivated. They must know what is allocated
to them and how it is spent. There is a need to improve the system,
ensuring the implementation of beneficial measures.
106. It was envisaged that social disparities, economic and
backwardness should be wiped out within a period of 10 years, but
104
gradually, amendments have been made, and there is no review of the
lists nor the provisions of the reservation have come to an end.
Instead, there is a demand to increase them and to provide
reservations within the reservation. It is very hard for any elected
government to have the political will to meet with the challenges
arising out of the aforesaid scenario. By grant of privileges and
amenities, it was felt that the aspirations of socially and economically
backward classes would be met, and inequalities would diminish.
107. Reservation provided to scheduled tribes and constitution of
scheduled areas is for the reason as systems concerning way of life are
different. They were in isolation, differed in various aspects from
common civilisation such as the delivery of justice, as regards legal
system, the culture, way of life differs from the ordinary people, their
language and their primitive way of life makes them unfit to put up
with the mainstream and to be governed by the ordinary laws. It was
intended by the protective terms granted in the constitutional
provisions that they will one day be the part of the mainstream and
would not remain isolated for all time to come. The Scheduled Tribes
Order, 1950 was promulgated to include groups and communities
which were not part of social society, based on characteristic and
culture, which developed by that time. The formal education, by and
large, failed to reach them, and they remained a disadvantaged class,
105
as such required a helping hand to uplift them and to make them
contribute to the national development and not to remain part of the
primitive culture. The purpose of the constitutional provisions is not to
keep them in isolation but to make them part of the mainstream. They
are not supposed to be seen as a human zoo and source of enjoyment
of primitive culture and for dance performances. The benefits of
developments have not reached them, and they remain isolated in
various parts of the country. The social and economic upliftment and
education are necessary for tribals to make them equal.
108. Question emanating in the case is how to balance the rights of
scheduled castes and scheduled tribes. Whether providing 100%
reservation in favour of any particular class is permissible?”
109. The High Court referred to the Constituent Assembly Debates.
What was stated by Dr. Ambedkar in an answer concerning backward
community;
“A backward community is a community which is backward in
the opinion of the Government. My honourable friend Mr.T.T.
Krishnamachari asked me whether this rule will be justiciable. It
is rather difficult to give a dogmatic answer. Personally, I think
it would be a justiciable matter. If the local Government
included in this category of reservations such a large number of
seats; I think one could very well go to the Federal Court and the
Supreme Court and say that the reservation is of such a
magnitude that the rule regarding equality of opportunity has
been destroyed and the Court will then come to the conclusion
whether the local Government or the State Government has acted
in a reasonable and prudent manner.”
(emphasis supplied)
106
110. In M.R. Balaji & Ors. v. State of Mysore & Ors., (1963) Supp 1
SCR 439, this Court held that total reservations in favour of
disadvantaged sections of the society could not exceed 50% thus:
“16. It now remains to consider the report made by the Nagan
Gowda Committee appointed by the State. This report proceeds
on the basis that higher social status has generally been accorded
on the basis of caste for centuries; and so, it takes the view that
the low social position of any community is, therefore, mainly
due to the caste system. According to the Report, there are ample
reasons to conclude that social backwardness is based mainly on
racial, tribal, caste and denominational differences, even though
economic backwardness might have contributed to social
backwardness. It would thus be clear that the Committee
approached its problem of enumerating and classifying the
socially and educationally backward communities on the basis
that the social backwardness depends substantially on the caste
to which the community belongs, though it recognised that
economic condition may be a contributory factor. The
classification made by the Committee and the enumeration of the
backward communities which it adopted shows that the
Committee virtually equated the classes with the castes.
According to the Committee, the entire Lingayat community was
socially forward, and that all sections of Vokkaligas, excluding
Bhunts, were socially backward. With regard to the Muslims, the
majority of the Committee agreed that the Muslim community as
a whole should be classified as socially backward. The
Committee further decided that amongst the backward
communities two divisions should be made (i) the backward and
(ii) the More Backward. In making this distinction, the
Committee applied one test. It enquired: “Was the standard of
education in the community in question less than 50% of the
State average? If it was, the community should be regarded as
more backward; if it was not, the community should be regarded
as backward.” As to the extent of reservation in educational
institutions, the Committee’s recommendation was that 28%
should be reserved for backward and 22% for more backward. In
other words, 50% should be reserved for the whole group of
backward communities besides 15% and 3% which had already
been reserved for the Scheduled Castes and Scheduled Tribes
respectively. That is how according to the Committee, 68% was
carved out by reservation for the betterment of the Backward
Classes and the Scheduled Castes and Tribes. It is on the basis of
107
these recommendations that the Government proceeded to make
its impugned order.”
111. In State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, the Court
observed that the rule evolved in Balaji (supra) that reservations
cannot exceed 50% is merely a rule of caution.
112. In M. Nagaraj and Ors. v. Union of India and Ors., (2006) 8 SCC
212, it was held that the ceiling limit of the reservation is 50% without
which structure of equality of opportunity in Article 16 would collapse.
This Court held:
“122. We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely, backwardness,
the inadequacy of representation and overall administrative
efficiency are all constitutional requirements without which the
structure of equality of opportunity in Article 16 would
collapse.”
(emphasis supplied by us)
113. Reliance has also been placed on Union of India & Ors. v. Rakesh
Kumar & Ors., (2010) 4 SCC 50 on behalf of the respondents, which
related to a reservation in Panchayats. Considering the provisions of
Articles 243, 243D, 15(4), 16(4) and the Fifth Schedule of the
Constitution and under Part IX to extend Panchayati Raj system to
scheduled areas, it was held that post of Chairperson of Panchayat,
Scheduled Tribes in the scheduled areas cannot be put into a
disadvantaged position. Because of the peculiar conditions in those
areas, it is permissible that chairpersons of scheduled areas should be
108
exclusively from scheduled tribes only. It was also held that Article
243D envisages proportionate representation and is distinct and an
independent constitutional basis of reservation in Panchayati Raj
institutions. The reservation under Article 243D cannot be compared
with affirmative action measures under Articles 15(4) and 16(4), where
a balance is to be maintained between affirmative action measures
and merits. This Court pointed out though Articles 14, 15, and 16
provide for affirmative action measures; however, there is a need for
periodical review keeping in view the changing social and economic
conditions.
(a). The difference between Article 243D and Article 16(4) was
pointed out in Rakesh Kumar (supra) thus:
“42. Especially on the unviability of the analogy between Article
16(4) and Article 243-D, we are in agreement with a decision of
the Bombay High Court, reported as Vinayakrao Gangaramji
Deshmukh v. P.C. Agrawal, AIR 1999 Bom 142. That case
involved a fact situation where the Chairperson position in a
panchayat was reserved in favour of a Scheduled Caste woman.
In the course of upholding this reservation, it was held: (AIR p.
143, para 4)
“4. … Now, after the seventy-third and seventy-fourth
constitutional amendments, the constitution of local bodies
has been granted a constitutional protection and Article
243-D mandates that a seat be reserved for the Scheduled
Castes and Scheduled Tribes in every Panchayat and subarticle (4) of the said Article 243-D also directs that the
offices of the Chairpersons in the panchayats at the village
or any other level shall be reserved for the Scheduled
Castes, the Scheduled Tribes and women in such manner as
the legislature of a State may, by law, provide. Therefore,
the reservation in the local bodies like the Village
Panchayat is not governed by Article 16(4), which speaks
about the reservation in the public employment, but a
109
separate constitutional power directs the reservation in such
local bodies.”
43. For the sake of argument, even if an analogy between
Article 243-D and Article 16(4) was viable, a close reading of
Indra Sawhney, 1992 Supp (3) SCC 217, decision will reveal
that even though an upper limit of 50% was prescribed for
reservations in public employment, the said decision did
recognise the need for exceptional treatment in some
circumstances. This is evident from the following words (at
paras 809-10): (SCC p. 735)
“809. From the above discussion, the irresistible
conclusion that follows is that the reservations contemplated
in clause (4) of Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put
out of consideration certain extraordinary situations inherent
in the great diversity of this country and the people. It might
happen that in far-flung and remote areas the population
inhabiting those areas might, on account of their being out of
the mainstream of national life and in view of conditions
peculiar to and characteristical to them, need to be treated in a
different way, some relaxation in this strict rule may become
imperative. In doing so, extreme caution is to be exercised
and a special case made out.”
(b). The departure from adequate and proportionate representation
has been considered in Rakesh Kumar (supra) thus:
“48. There is of course a rational basis for departing from the
norms of “adequate representation” as well as “proportionate
representation” in the present case. This was necessary because it
was found that even in the areas where Scheduled Tribes are in a
relative majority, they are under-represented in the governmental
machinery and hence vulnerable to exploitation. Even in areas
where persons belonging to Scheduled Tribes held public
positions, it is a distinct possibility that the non-tribal population
will come to dominate the affairs. The relatively weaker position
of the Scheduled Tribes is also manifested through problems
such as land grabbing by non-tribals, displacement on account of
private as well as governmental developmental activities, and the
destruction of environmental resources. In order to tackle such
social realities, the legislature thought it fit to depart from the
norm of "proportional representation." In this sense, it is not our
job to second guess such policy choices.
110
56. In the context of reservations in panchayats, it can be
reasoned that the limitation placed on the choices available to
voters is an incidental consequence of the reservation policy. In
this case, the compelling State interest in safeguarding the
interests of weaker sections by ensuring their representation in
local self-government clearly outweighs the competing interest
in not curtailing the choices available to voters. It must also be
reiterated here that the 50% reservations in favour of STs as
contemplated by the first proviso to Section 4(g) of the PESA
Act were not struck down in the impugned judgment. Even
though it was argued before this Court that this provision makes
a departure from the norm of “proportionate representation”
contemplated by Article 243-D(1), we have already explained
how Article 243-M(4)(b) permits “exceptions” and
“modifications” in the application of Part IX to Scheduled Areas.
Sections 17(B)(1), 36(B)(1) and 51(B)(1) of JPRA merely give
effect to the exceptional treatment that is mandated by the PESA
Act.”
(c). This Court in Rakesh Kumar (supra) held that State of
Jharkhand was also under an obligation to account for the interests of
the other backward classes as contemplated in the Panchayati Raj Act,
thus :
“57. However, in addition to the 50% reservations in favour of
Scheduled Tribes, the State of Jharkhand is also under an
obligation to account for the interests of Scheduled Castes and
Other Backward Classes. The same has been contemplated in
Sections 17(B)(2), 36(B)(2) and 51(B)(2) of JPRA which
incorporate the standard of “proportionate representation” for
Scheduled Castes and Backward Classes in such a manner that
the total reservations do not exceed 80%. This does not mean
that reservations will reach the 80% ceiling in all the Scheduled
Areas. Since the allocation of seats in favour of Scheduled
Castes and Backward Classes has to follow the principle of
proportionality, the extent of total reservations is likely to vary
across the different territorial constituencies identified for the
purpose of elections to the panchayats. Depending on the
demographic profile of a particular constituency, it is possible
that the total reservations could well fall short of the 80% upper
ceiling. However, in Scheduled Areas where the extent of the
population belonging to the Scheduled Castes and Backward
111
Classes exceeds 30% of the total population, the upper ceiling of
80% will become operative.
58. Irrespective of such permutations, the legislative intent
behind the impugned provisions of JPRA is primarily that of
safeguarding the interests of persons belonging to the Scheduled
Tribes category. In the light of the preceding discussion, it is our
considered view that total reservations exceeding 50% of the
seats in panchayats located in Scheduled Areas are permissible
on account of the exceptional treatment mandated under Article
243-M(4)( b). Therefore, we agree with the appellants and
overturn the ruling of the High Court of Jharkhand on this
limited point.”
(emphasis supplied by us)
(d). The decision has been rendered in the context of reservation in
Panchayat for which special provisions have been made in Article 243
M(4)(b), and this Court held that the provisions of Article 243D are
distinguishable from the provisions contained in Article 16(4). It has
also been emphasised that the State cannot ignore the other backward
and scheduled caste classes.
114. In K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr., (2010)
7 SCC 202, this Court observed thus:
“53. In this respect, we are in partial agreement with one of the
submissions made by Shri M. Rama Jois that the nature of
disadvantages that restrict access to education and employment
cannot be readily equated with disadvantages in the realm of
political representation. To be sure, backwardness in the social
and economic sense does not necessarily imply political
backwardness. However, the petitioner's emphasis on the
distinction between "selection" (in case of education and
employment) and "election" (in case of political representation)
does not adequately reflect the complexities involved. It is, of
course, undeniable that in determining who can get access to
education and employment, due regard must be given to
considerations of merit and efficiency which can be measured in
112
an objective manner. Hence, admissions to educational
institutions and the recruitment to government jobs is ordinarily
done through methods such as examinations, interviews or
assessment of past performance. Since it is felt that the
applicants belonging to the SC/ST/OBC categories among others
are at a disadvantage when they compete through these methods,
a level playing field is sought to be created by way of conferring
reservation benefits.
54. In the domain of political participation, there can be no
objective parameters to determine who is more likely to get
elected to representative institutions at any level. The choices of
voters are not guided by an objective assessment of a candidate’s
merit and efficiency. Instead, they are shaped by subjective
factors such as the candidate’s ability to canvass support, past
service record, professed ideology and affiliations to organised
groups among others. In this context, it is quite possible that
candidates belonging to the SC/ST/OBC categories could
demonstrate these subjective qualities and win elections against
candidates from the relatively better-off groups. However, such a
scenario cannot be presumed in all circumstances. It is quite
conceivable that in some localised settings, backwardness in the
social and economic sense can also act as a barrier to effective
political participation and representation. When it comes to
creating a level playing field for the purpose of elections to local
bodies, backwardness in the social and economic sense can
indeed be one of the criteria for conferring reservation benefits.
63. As noted earlier, social and economic backwardness does not
necessarily coincide with political backwardness. In this respect,
the State Governments are well advised to reconfigure their
reservation policies, wherein the beneficiaries under Articles
243-D(6) and 243-T(6) need not necessarily be coterminous with
the Socially and Educationally Backward Classes (SEBCs) [for
the purpose of Article 15(4)] or even the backward classes that
are underrepresented in government jobs [for the purpose of
Article 16(4)]. It would be safe to say that not all of the groups
which have been given reservation benefits in the domain of
education and employment need reservations in the sphere of
local self-government. This is because the barriers to political
participation are not of the same character as barriers that limit
access to education and employment. This calls for some fresh
thinking and policy-making with regard to reservations in local
self-government.
113
64. In the absence of explicit constitutional guidance as to the
quantum of reservation in favour of backward classes in local
self-government, the rule of thumb is that of proportionate
reservation. However, we must lay stress on the fact that the
upper ceiling of 50% (quantitative limitation) with respect to
vertical reservations in favour of SCs/STs/OBCs should not be
breached. On the question of breaching this upper ceiling, the
arguments made by the petitioners were a little misconceived
since they had accounted for vertical reservations in favour of
SCs/STs/OBCs as well as horizontal reservations in favour of
women to assert that the 50% ceiling had been breached in some
of the States. This was clearly a misunderstanding of the
position since the horizontal reservations in favour of women are
meant to intersect with the vertical reservations in favour of
SCs/STs/OBCs, since one-third of the seats reserved for the latter
categories are to be reserved for women belonging to the same.
This means that seats earmarked for women belonging to the
general category are not accounted for if one has to gauge
whether the upper ceiling of 50% has been breached.
65. Shri Rajeev Dhavan has contended that since the context of
local self-government is different from education and
employment, the 50% ceiling for vertical reservations which was
prescribed in Indra Sawhney, 1992 Supp (3) SCC 217, cannot be
blindly imported since that case dealt with reservations in
government jobs. It was further contended that the same
decision had recognised the need for exceptional treatment in
some circumstances, which is evident from the following words:
(SCC p. 735, paras 809-10)
“809. From the above discussion, the irresistible
conclusion that follows is that the reservations
contemplated in clause (4) of Article 16 should not exceed
50%.
810. While 50% shall be the rule, it is necessary not to
put out of consideration certain extraordinary situations
inherent in the great diversity of this country and the
people. It might happen that in far-flung and remote areas
the population inhabiting those areas might, on account of
their being out of the mainstream of national life and in
view of conditions peculiar to and characteristical to them,
need to be treated in a different way, some relaxation in this
strict rule may become imperative. In doing so, extreme
caution is to be exercised and a special case made out.”
66. Admittedly, reservations in excess of 50% do exist in some
exceptional cases, when it comes to the domain of political
114
representation. For instance, the Legislative Assemblies of the
States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram
and Sikkim have reservations that are far in excess of the 50%
limit. However, such a position is the outcome of exceptional
considerations in relation to these areas. Similarly, vertical
reservations in excess of 50% are permissible in the composition
of local self-government institutions located in the Fifth
Schedule Areas.
67. In the recent decision reported as Union of India v. Rakesh
Kumar, (2010) 4 SCC 50, this Court has explained why it may be
necessary to provide reservations in favour of the Scheduled
Tribes that exceed 50% of the seats in panchayats located in the
Scheduled Areas. However, such exceptional considerations
cannot be invoked when we are examining the quantum of
reservations in favour of backward classes for the purpose of
local bodies located in general areas. In such circumstances, the
vertical reservations in favour of SCs/STs/OBCs cannot exceed
the upper limit of 50% when taken together. It is obvious that in
order to adhere to this upper ceiling, some of the States may
have to modify their legislations so as to reduce the quantum of
the existing quotas in favour of OBCs.”
115. The decision of Bombay High Court in Vinayakrao Gangaramji
Deshmukh v. P C Agrawal, AIR 1999 Bom. 142 regarding the
distinction between Articles 243D and 16(4) was affirmed. This Court
observed that some decisions in past examined validity of reservations
in local selfGovernment applying principles evolved about
employment and education. It was also observed that for scheduled
castes, scheduled tribes and other backward classes categories, the
level playing field is sought to be created by conferring reservation
benefits. In K. Krishna Murthy (supra), this Court also emphasised
that socioeconomic backwardness does not necessarily coincide with
political backwardness, which need not necessarily be envisaged
115
under Articles 15(4) and 16(4). Barriers to political participation are
not of the same character as barriers that limit access to education
and employment. Concerning vertical reservations, it was said that
they have to be made in the upper ceiling of 50%.
The 100% reservation would amount to unreasonable and unfair
and cannot be termed except as unfair and unreasonable. Thus, we
are of the considered opinion that providing 100% reservation to the
scheduled castes and scheduled tribes were not permissible. The
Governor in the exercise of the power conferred by para 5(1) of the
Fifth Schedule of the Constitution, cannot provide a 100% reservation.
116. In R. Chitralekha v. State of Mysore, AIR 1964 SC 1823, it was
laid down that reservation should not exceed 50 percent; however, a
little relaxation is permissible with great care. Reservation is an
exception to the general rule. The quantum of reservation should not
be excessive and societally injurious.
117. In AIIMS Students Union v. A.I.I.M.S., JT 2001 (7) SC 12, the
Court observed:
"Reservation, as an exception, maybe justified subject to
discharging the burden of proving justification in favour of the
class which must be educationally handicapped – the reservation
geared up to getting over the handicap. The rationale of
reservation in the case of medical students must be removal of
regional or class inadequacy or like disadvantage. Even there,
the quantum of reservation should not be excessive of societally
injurious. The higher the level of the specially the lesser the role
of reservation."
116
118. Reliance has been placed on Lingappa Pochanna Appelwar &
Ors. v. State of Maharashtra & Ors. (1985) 1 SCC 479 in which the
Court held that it is a Constitutional duty on the State to take positive
and stem measures to ensure dignity and right to life of Scheduled
Tribes. There is no quarrel with the proposition mentioned above;
however, Constitutional duty has to be discharged from a
Constitutional perspective and not in violation thereof.
119. It was argued on behalf of the respondents that the scope of
judicial review is very limited in such cases. The court may observe
due deference to the opinion of State if the material exists to support
the opinion that is formed. The decision in Indra Sawhney (supra) has
been relied upon, in which this Court considered the question and
held:
“798. Not only should a class be a backward class for meriting
reservations, it should also be inadequately represented in the
services under the State. The language of clause (4) makes it
clear that the question of whether a backward class of citizens is
not adequately represented in the services under the State is a
matter within the subjective satisfaction of the State. This is
evident from the fact that the said requirement is preceded by the
words "in the opinion of the State". This opinion can be formed
by the State on its own, i.e., on the basis of the material it has in
its possession already, or it may gather such material through a
Commission/Committee, person or authority. All that is required
is, there must be some material upon which the opinion is
formed. Indeed, in this matter the court should show due
deference to the opinion of the State, which in the present
context means the executive. The executive is supposed to know
the existing conditions in the society, drawn as it is from among
the representatives of the people in Parliament/Legislature. It
117
does not, however, mean that the opinion formed is beyond
judicial scrutiny altogether. The scope and reach of judicial
scrutiny in matters within subjective satisfaction of the executive
are well and extensively stated in Barium Chemicals v. Company
Law Board37 which need not be repeated here. Suffice it to
mention that the said principles apply equally in the case of a
constitutional provision like Article 16(4), which expressly
places the particular fact (inadequate representation) within the
subjective judgment of the State/executive.”
(emphasis supplied by us)
120. In Indra Sawhney (supra), it was observed that each situation
could not be visualised and must be left to appropriate authorities.
There can be various tests for identifying backward classes. The Court
can lay down only general guidelines. If the approach adopted by the
State is fair and adequate, then the Court has no say in the matter.
The Court held:
“780. Now, we may turn to the identification of a "backward
class of citizens." How do you go about it? Where do you begin?
Is the method to vary from State to State, region to region, and
from rural to urban? What do you do in the case of religions
where caste-system is not prevailing? What about other classes,
groups, and communities which do not wear the label of caste?
Are the people living adjacent to cease-fire line (in Jammu and
Kashmir) or hilly or inaccessible regions to be surveyed and
identified as backward classes for the purpose of Article 16(4)?
And so on and so forth are the many questions asked of us. We
shall answer them. But our answers will necessarily deal with
generalities of the situation and not with problems or issues of a
peripheral nature which are peculiar to a particular State, district
or region. Each and every situation cannot be visualised and
answered. That must be left to the appropriate authorities
appointed to identify. We can lay down only general guidelines.
783. We do not mean to suggest — we may reiterate — that the
procedure indicated hereinabove is the only procedure or
method/approach to be adopted. Indeed, there is no such thing as
a standard or model procedure/approach. It is for the authority
(appointed to identify) to adopt such approach and procedure as
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it thinks appropriate, and so long as the approach adopted by it is
fair and adequate, the court has no say in the matter. The only
object of the discussion in the preceding para is to emphasise
that if a Commission/Authority begins its process of
identification with castes (among Hindus) and occupational
groupings among others, it cannot by that reason alone be said to
be constitutionally or legally bad. We must also say that there is
no rule of law that a test to be applied for identifying backward
classes should be only one and/or uniform. In a vast country like
India, it is simply not practicable. If the real object is to discover
and locate backwardness, and if such backwardness is found in a
caste, it can be treated as backward; if it is found in any other
group, section or class, they too can be treated as backward.
*** *** ***
854. (b) Strictly speaking, appointment of a Commission under
Article 340 is not necessary to identify the other backward
classes. Article 340 does not say so. According to it, the
Commission is to be constituted ‘to investigate the conditions of
socially and educationally backward classes … and the
difficulties under which they labour and to make
recommendations as to the steps that should be taken by the
Union or any State to remove such difficulties ….” The
Government could have, even without appointing a Commission,
specified the OBCs, on the basis of such material as it may have
had before it (e.g., the lists prepared by various State
Governments) and then appointed the Commission to investigate
their conditions and to make appropriate recommendations. It is
true that Mandal Commission was constituted “to determine the
criteria for defining the socially and educationally backward
classes” and the Commission did determine the same. Even so, it
is necessary to keep the above constitutional position in mind, —
more particularly in view of the veto given to State lists over the
Mandal lists as explained in the preceding sub-para. The criteria
evolved by Mandal Commission for defining/identifying the
Other Backward Classes cannot be said to be irrelevant. Maybe
there are certain errors in actual exercise of identification, in the
nature of over-inclusion or under-inclusion, as the case may be.
But in an exercise of such magnitude and complexity, such errors
are not uncommon. These errors cannot be made a basis for
rejecting either the relevance of the criteria evolved by the
Commission or the entire exercise of identification. It is one
thing to say that these errors must be rectified by the
Government of India by evolving an appropriate mechanism and
an altogether different thing to say that on that account, the entire
exercise becomes futile. There can never be a perfect report. In
human affairs, such as this, perfection is only an ideal — not an
119
attainable goal. More than forty years have passed by. So far, no
reservations could be made in favour of OBCs for one or the
other reason in Central services though in many States, such
reservations are in force. Reservations in favour of OBCs are in
force in the States of Kerala, Tamil Nadu, Karnataka, Andhra
Pradesh, Maharashtra, Orissa, Bihar, Gujarat, Goa, Uttar
Pradesh, Punjab, Haryana and Himachal Pradesh among others.
In Madhya Pradesh, a list of OBCs was prepared on the basis of
the Mahajan Commission Report but it appears to have been
stayed by the High Court.”
(emphasis supplied by us)
It was also observed that strictly speaking, the appointment of a
Commission is not necessary to identify the other backward classes.
121. Reliance has also been placed on Barium Chemicals v. Company
Law Board AIR 1967 SC 295 to argue that the scope of judicial review
is limited. It is not for the court to find sufficiency. It is not open to
the court to adjudge the accuracy of the material to conclude.
122. Dr. Rajeev Dhawan, learned Senior Counsel has relied upon
Treatise on Constitutional Law (Fifth Edition) by Ronald D. Rotunda,
in which it has been observed that law should be tested on traditional
rational standards and Court need not review seriously suspect
classification. Following observations have been made:
“The Court, in an opinion by Justice White, found that the
retirement classification should be tested by general equal
protection principles, but that it did not violate the equal
protection guarantee. Although the parties agreed that the law
should be tested under the traditional rational basis standard,
Justice White’s opinion stressed that the federal judiciary is not
to review seriously those classifications that do not involve
fundamental rights or suspect classifications:
The Constitution presumes that, absent some reason to infer
antipathy, even improvident decisions will eventually be
120
rectified by the democratic process and that judicial
intervention is generally unwarranted no matter how unwisely
we may think a political branch has acted. Thus, we will not
overturn such a statute unless the varying treatment of
different groups or persons is so unrelated to the achievement
of any combination of legitimate purposes that we can only
conclude that the legislature’s actions were irrational.”
Applying the traditional rational standard, the position is
worsened to support the impugned G.O.
123. Reliance has also been placed on Jarnail Singh & Ors. v. Lachhmi
Narain Gupta & Ors., 2018 (10) SCC 396, in which it was observed:
“23. This brings us to whether the judgment in M. Nagaraj v.
Union of India, (2006) 8 SCC 212 needs to be revisited on the
other grounds that have been argued before us. Insofar as the
State having to show quantifiable data as far as backwardness of
the class is concerned, we are afraid that we must reject Shri
Shanti Bhushan’s argument. The reference to “class” is to the
Scheduled Castes and the Scheduled Tribes, and their
inadequacy of representation in public employment. It is clear,
therefore, that Nagaraj, (2006) 8 SCC 212, has, in unmistakable
terms, stated that the State has to collect quantifiable data
showing backwardness of the Scheduled Castes and the
Scheduled Tribes. We are afraid that this portion of the judgment
is directly contrary to the nine-Judge Bench in Indra Sawhney
(1), 1922 Supp (3) SCC 217. Jeevan Reddy, J., speaking for
himself and three other learned Judges, had clearly held:
“[t]he test or requirement of social and educational
backwardness cannot be applied to the Scheduled Castes
and the Scheduled Tribes, who indubitably fall within the
expression “backward class of citizens”.” (See SCC p. 727,
paras 796 to 797.)
Equally, Dr Justice Thommen, in his conclusion at para 323(4),
had held as follows: (SCC pp. 461-62)
“323. Summary
* * *
(4) Only such classes of citizens who are socially and
educationally backward are qualified to be identified as
Backward Classes. To be accepted as Backward Classes for
121
the purpose of reservation under Article 15 or Article 16,
their backwardness must have been either recognised by
means of a notification by the President under Article 341
or Article 342 declaring them to be Scheduled Castes or
Scheduled Tribes, or, on an objective consideration,
identified by the State to be socially and educationally so
backward by reason of identified prior discrimination and
its continuing ill effects as to be comparable to the
Scheduled Castes or the Scheduled Tribes. In the case of
the Scheduled Castes or the Scheduled Tribes, these
conditions are, in view of the notifications, presumed to be
satisfied.”
124. In Jarnail Singh (supra), this Court considered the decision of M.
Nagaraj (supra), which dealt with the promotional aspect. In that
context, the aforesaid observations were made by this Court. In the
instant case, the question involved is different. This case does not
pertain to quantifying data for promotional avenues. The question to
quantify data showing the backwardness of scheduled castes or
scheduled tribes is not germane. The decision has no application.
The question involved in the instant case is whether reservation for
scheduled tribes is permissible, but to what extent. The decision in
Jarnail Singh (supra) concerning quantifying data for reservation and
promotion does not apply to provisions of Para 5 of Schedule V of the
Constitution of India.
125. Dr. Rajeev Dhawan, learned Senior Counsel, has made available
the Annual Report of the Governor on the Administration of Scheduled
Areas in Andhra Pradesh for the year 19992000, in which question of
122
the amendment and bringing a fresh notification in place of G.O. 275,
Social Welfare (E) Dept. dated 5.11.1986 for reservation of all teacher
vacancies in the educational institutions within the Scheduled Areas
in favour of local Scheduled Tribes, was considered. It was resolved
that as against the vacant posts reserved for the local tribals in the
Scheduled Areas, if the local tribals are not available, it may be filled
by nonlocal tribals. The relevant agenda item no.3 and resolution
thereupon, which form part of the report sent to the President, is
reproduced hereunder:
“Agenda Item: 3
The amendment and bringing a fresh notification in place of
G.O.275, Social Welfare (E) Dept. dt. 5.11.1986 for reservation
of all teacher vacancies in the Educational Institutions within the
Scheduled Areas in favour of Local Scheduled Tribes.
The Commissioner of Tribal Welfare explain the above item
in detail:
Resolution:
It is decided that the vacant posts reserved for local tribals in
scheduled areas. If the local tribals are not available, the posts
may be filled by non-local tribals."
Thus, it is apparent that the Andhra Pradesh Tribes Advisory
Council took the decision described above. It is pertinent to mention
that the G.O.275 dated 5.11.1986 was struck down by the High
Court/Tribunal. The civil appeal filed in this Court was withdrawn. It
is also apparent that there were vacant posts reserved for the local
tribals in the Scheduled Areas, as they could not be filled; thus, it was
decided to fill the posts by localnon tribals.
123
The reservation of 100 per cent posts was irrational and
arbitrary and violative of Article 14 of the Constitution of India. On
the one hand, local tribals were not available, and the posts were
vacant, thereby a decision was taken to fill those posts by nonlocal
tribals, and on the other hand, a decision was taken to fill these posts
by incumbents who were residing in the area since 26.1.1950. The
minutes of the Andhra Pradesh Tribes Advisory Council formed part of
the report of the Governor, which was sent to the President under
Para Three of the Fifth Schedule.
126. The Governor, as per Para 3 of Schedule V of Constitution, has
to submit a report to the President regarding the administration of
scheduled areas annually or whenever so required by the President.
The report is required to keep track of the progress in the areas. The
report is essential for deciding to make reservations and for its review.
However, 100 percent reservation could not have been provided even
by amending Act of 1997, at the cost of the scheduled castes,
backward classes, open category and the scheduled tribes who might
have settled in the areas after 26th January 1950, as reservation had
been provided only to the tribal families residing in the district on or
before 26th January 1950. Thus, the action is discriminatory visàvis
not only concerning open category but also to the disadvantageous
sections of the society, totally vanishing the hopes of the incumbents
124
of other classes. The decision to issue G.O. Ms No.3/2000 was taken
not on verifiable data, but it was taken on the basis that there was
chronic absenteeism of nontribal teachers in the schools in scheduled
areas.
127. By providing 100 percent reservation to the scheduled tribes has
deprived the scheduled castes and other backward classes also of
their due representation. The concept of reservation is not
proportionate but adequate, as held in Indra Sawhney (supra). The
action is thus unreasonable and arbitrary and violative of provisions of
Articles 14, 15 and 16 of the Constitution of India. It also impinges
upon the right of open category and scheduled tribes who have settled
in the area after 26th January 1950. The total percentage of
reservation provided for Scheduled Tribes in the State is 6%. By
providing 100 percent reservation in the scheduled areas, the rights of
the tribals, who are not residents of the scheduled areas, shall also be
adversely affected. As per Presidential order under Article 371D, they
cannot stake their claim in other areas. The posts in other areas are to
be reduced by making a 100% reservation in a particular area.
128. The population in the scheduled areas not only includes
scheduled tribes but also open category, scheduled castes, and other
scheduled tribes settled after 26.1.1950, and they are not covered in
the notification. In Khammam district, as noted by the High Court,
125
out of 31 mandals notified as scheduled areas, the population of the
scheduled tribes is less than 50 percent, except in 9 mandals. In
those 9 mandals, where there is more than 50%, the population of the
scheduled tribes' ranges between 53 percent to 77 percent. The
percentage of the scheduled tribes' students is around 25 percent, and
the remaining students belong to other classes. Similarly, in West
Godavari district, the population of scheduled tribes as per the 1991
census was 39.31 percent, whereas the population of nontribals was
60.69 percent.
129. Concerning Kothagudem, the High Court noted that many
collieries and industries are belonging to public and private sector
undertakings and a large number of the influx of the people from
scheduled castes, scheduled tribes and backward classes had taken
place to obtain employment.
130. No law mandates that only tribal teachers can teach in the
scheduled areas; thus, the action defies the logic. Another reason
given is the phenomenal absenteeism of teachers in schools. That
could not have been a ground for providing 100 percent reservation to
the tribal teachers in the areas. It is not the case that incumbents of
other categories are not available in the areas. When a district is a
unit for the employment, the ground applied for providing reservation
for phenomenal absenteeism is irrelevant and could not have formed
126
the basis for providing 100 percent reservation. The problem of
absenteeism could have been taken care of by providing better
facilities and other incentives.
131. The reason assigned that reservation was to cover impetus in the
scheduled areas in the field of education and to strengthen
educational infrastructure is also equally bereft of substance. By
depriving opportunity to the others, it cannot be said that any impetus
could have been given to the cause of students and effective
education, and now that could have been strengthened. The provisions
of 100 percent reservation are ignoring the merit. Thus, it would
weaken the educational infrastructure and the merit and the standard
of education imparted in the schools. Educational development of
students cannot be made only by a particular class of teachers
appointed by providing reservation, ignoring merit in toto. The ideal
approach would be that teachers are selected based on merit.
132. Depriving the opportunity of employment to other categories
cannot be said to be a method of achieving social equilibrium. Apart
from that, roster points are maintained for appointment by providing
100 percent reservation, there would be a violation of the said
provision also, and it would become unworkable and the action has an
effect of taking away the rights available to the tribals settled in the
other nonscheduled areas. By providing 100 per cent reservation in
127
the scheduled areas, their right to enjoy reservation to the extent it is
available to them had also been taken away by uncalled for
distribution of reservation.
133. There were no such extraordinary circumstances to provide a
100 percent reservation in Scheduled Areas. It is an obnoxious idea
that tribals only should teach the tribals. When there are other local
residents, why they cannot teach is not understandable. The action
defies logic and is arbitrary. Merit cannot be denied in toto by
providing reservations.
134. A reservation that is permissible by protective mode, by making
it 100 percent would become discriminatory and impermissible. The
opportunity of public employment cannot be denied unjustly to the
incumbents, and it is not the prerogative of few. The citizens have
equal rights, and the total exclusion of others by creating an
opportunity for one class is not contemplated by the founding fathers
of the Constitution of India. Equality of opportunity and pursuit of
choice under Article 51A cannot be deprived of unjustly and
arbitrarily. As per the Presidential Order, the citizens of the locality
and outsiders were entitled to 15 percent of employment in the district
cadre in terms of clause 10 of Article 370(1) (d) of the Constitution.
Thus, the G.O. does not classify but deals with reservations. It was
contrary to the report sent to the President by the Governor, which
128
indicated even the posts which were reserved for scheduled tribes
teachers, they were not available as such Tribes Advisory Council
decided to fill them from other nonlocal tribals.
135. We find that G.O. Ms. No.3/2000 is wholly impermissible and
cannot be said to be legally permissible and constitutionally valid. It
can be said that action is not only irrational, but it violates the rights
guaranteed under Part III of the Constitution and is not sustainable.
In Re: Question No.3: Whether the notification merely
contemplates a classification under Article 16(1) and not
reservation under Article 16(4)?
136. Question No.3 is whether notification No.3/2000 contains
classification under Article 16(1) and does not provide reservation
under Article 16(4) of the Constitution.
137. Article 16(1) permit classification being a facet of Article 14.
Clause 4 of Article 16 is an instance of classification arising out of
Clause 1 of Article 16 of the Constitution. Articles 14, 16 (1) and 16(4)
are all facets of equality. In Indra Sawhney (supra), it was held that
Article 16(4) is not an exception to Article 16(1) but a part of equality.
This Court observed that in certain situations to treat unequal
persons equally, provide them equality:
129
“741. In M.R. Balaji v. State of Mysore, 1963 Supp 1 SCR 439, it
was held — “there is no doubt that Article 15(4) has to be read as
a proviso or an exception to Articles 15(1) and 29(2)”. It was
observed that Article 15(4) was inserted by the First Amendment
in the light of the decision in State of Madras v. Smt Champakam
Dorairajan, 1951 SCR 525, with a view to remove the defect
pointed out by this court namely, the absence of a provision in
Article 15 corresponding to clause (4) of Article 16. Following
Balaji it was held by another Constitution Bench (by majority) in
T. Devadasan v. Union of India, (1964) 4 SCR 680 — “further
this Court has already held that clause (4) of Article 16 is by way
of a proviso or an exception to clause (1)”. Subba Rao, J,
however, opined in his dissenting opinion that Article 16(4) is
not an exception to Article 16(1) but that it is only an emphatic
way of stating the principle inherent in the main provision itself.
Be that as it may, since the decision in Devadasan, it was
assumed by this Court that Article 16(4) is an exception to
Article 16(1). This view, however, received a severe setback
from the majority decision in State of Kerala v. N.M. Thomas
(1976) 2 SCC 310. Though the minority (H.R. Khanna and A.C.
Gupta, JJ) stuck to the view that Article 16(4) is an exception,
the majority (Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ)
held that Article 16(4) is not an exception to Article 16(1) but
that it was merely an emphatic way of stating a principle implicit
in Article 16(1). (Beg, J took a slightly different view which it is
not necessary to mention here.) The said four learned Judges —
whose views have been referred to in para 713 — held that
Article 16(1) being a facet of the doctrine of equality enshrined
in Article 14 permits reasonable classification just as Article 14
does. In our respectful opinion, the view taken by the majority in
Thomas is the correct one. We too believe that Article 16(1) does
permit reasonable classification for ensuring attainment of the
equality of opportunity assured by it. For assuring equality of
opportunity, it may well be necessary in certain situations to treat
unequally situated persons unequally. Not doing so, would
perpetuate and accentuate inequality. Article 16(4) is an instance
of such classification, put in to place the matter beyond
controversy. The “backward class of citizens” are classified as a
separate category deserving a special treatment in the nature of
reservation of appointments/posts in the services of the State.
Accordingly, we hold that clause (4) of Article 16 is not
exception to clause (1) of Article 16. It is an instance of
classification implicit in and permitted by clause (1). The speech
of Dr Ambedkar during the debate on draft Article 10(3)
[corresponding to Article 16(4)] in the Constituent Assembly —
referred to in para 693 — shows that a substantial number of
members of the Constituent Assembly insisted upon a “provision
130
(being) made for the entry of certain communities which have so
far been outside the administration”, and that draft clause (3) was
put in in recognition and acceptance of the said demand. It is a
provision which must be read along with and in harmony with
clause (1). Indeed, even without clause (4), it would have been
permissible for the State to have evolved such a classification
and made a provision for reservation of appointments/posts in
their favour. Clause (4) merely puts the matter beyond any doubt
in specific terms.
742. Regarding the view expressed in Balaji (supra) and
Devadasan (supra), it must be remembered that at that time it
was not yet recognised by this Court that Article 16(1) being a
facet of Article 14 does implicitly permit classification. Once this
feature was recognised the theory of clause (4) being an
exception to clause (1) became untenable. It had to be accepted
that clause (4) is an instance of classification inherent in clause
(1). Now, just as Article 16(1) is a facet or an elaboration of the
principle underlying Article 14, clause (2) of Article 16 is also an
elaboration of a facet of clause (1). If clause (4) is an exception
to clause (1) then it is equally an exception to clause (2).
Question then arises, in what respect if clause (4) an exception to
clause (2), if ‘class’ does not means ‘caste’. Neither clause (1)
nor clause (2) speak of class. Does the contention mean that
clause (1) does not permit classification and therefore clause (4)
is an exception to it. Thus, from any point of view, the contention
of the petitioners has no merit.”
(emphasis supplied by us)
138. In Indra Sawhney (supra), the Court held that Article 16(4) aims
at group backwardness, thus:
“792. In our opinion, it is not a question of permissibility or
desirability of such test but one of proper and more appropriate
identification of a class — a backward class. The very concept of
a class denotes a number of persons having certain common
traits which distinguish them from the others. In a backward
class under clause (4) of Article 16, if the connecting link is the
social backwardness, it should broadly be the same in a given
class. If some of the members are far too advanced socially
(which in the context, necessarily means economically and, may
also mean educationally) the connecting thread between them
and the remaining class snaps. They would be misfits in the
class. After excluding them alone, would the class be a compact
class. In fact, such exclusion benefits the truly backward.
131
Difficulty, however, really lies in drawing the line — how and
where to draw the line? For, while drawing the line, it should be
ensured that it does not result in taking away with one hand what
is given by the other. The basis of exclusion should not merely
be economic, unless, of course, the economic advancement is so
high that it necessarily means social advancement. Let us
illustrate the point. A member of backward class, say a member
of carpenter caste, goes to Middle East and works there as a
carpenter. If you take his annual income in rupees, it would be
fairly high from the Indian standard. Is he to be excluded from
the Backward Class? Are his children in India to be deprived of
the benefit of Article 16(4)? Situation may, however, be
different, if he rises so high economically as to become — say a
factory owner himself. In such a situation, his social status also
rises. He himself would be in a position to provide employment
to others. In such a case, his income is merely a measure of his
social status. Even otherwise there are several practical
difficulties too in imposing an income ceiling. For example,
annual income of Rs 36,000 may not count for much in a city
like Bombay, Delhi or Calcutta whereas it may be a handsome
income in rural India anywhere. The line to be drawn must be a
realistic one. Another question would be, should such a line be
uniform for the entire country or a given State or should it differ
from rural to urban areas and so on. Further, income from
agriculture may be difficult to assess and, therefore, in the case
of agriculturists, the line may have to be drawn with reference to
the extent of holding. While the income of a person can be taken
as a measure of his social advancement, the limit to be
prescribed should not be such as to result in taking away with
one hand what is given with the other. The income limit must be
such as to mean and signify social advancement. At the same
time, it must be recognised that there are certain positions, the
occupants of which can be treated as socially advanced without
any further enquiry. For example, if a member of a designated
backward class becomes a member of IAS or IPS or any other
All India Service, his status is society (social status) rises; he is
no longer socially disadvantaged. His children get full
opportunity to realise their potential. They are in no way
handicapped in the race of life. His salary is also such that he is
above want. It is but logical that in such a situation, his children
are not given the benefit of reservation. For by giving them the
benefit of reservation, other disadvantaged members of that
backward class may be deprived of that benefit. It is then
argued for the respondents that ‘one swallow doesn’t make the
summer’, and that merely because a few members of a caste or
class become socially advanced, the class/caste as such does not
cease to be backward. It is pointed out that clause (4) of Article
132
16 aims at group backwardness and not individual
backwardness. While we agree that clause (4) aims at group
backwardness, we feel that exclusion of such socially advanced
members will make the ‘class’ a truly backward class and would
more appropriately serve the purpose and object of clause (4).
(This discussion is confined to Other Backward Classes only and
has no relevance in the case of Scheduled Tribes and Scheduled
Castes).”
(emphasis supplied by us)
(a). Concerning the interpretation of provisions in Articles 15(4) and
16(4), in Indra Sawhney (supra), this Court held that:
“787. It is true that no decision earlier to it specifically said so,
yet such an impression gained currency and it is that impression
which finds expression in the above observation. In our
respectful opinion, however, the said assumption has no basis.
Clause (4) of Article 16 does not contain the qualifying words
“socially and educationally” as does clause (4) of Article 15. It
may be remembered that Article 340 (which has remained
unamended) does employ the expression ‘socially and
educationally backward classes’ and yet that expression does not
find place in Article 16(4). The reason is obvious: “backward
class of citizens” in Article 16(4) takes in Scheduled Tribes,
Scheduled Castes and all other backward classes of citizens
including the socially and educationally backward classes. Thus,
certain classes which may not qualify for Article 15(4) may
qualify for Article 16(4). They may not qualify for Article 15(4)
but they may qualify as backward class of citizens for the
purposes of Article 16(4). It is equally relevant to notice that
Article 340 does not expressly refer to services or to reservations
in services under the State, though it may be that the
Commission appointed thereunder may recommend reservation
in appointments/posts in the services of the State as one of the
steps for removing the difficulties under which SEBCs are
labouring and for improving their conditions. Thus, SEBCs
referred to in Article 340 is only of the categories for whom
Article 16(4) was enacted: Article 16(4) applies to a much larger
class than the one contemplated by Article 340. It would, thus, be
not correct to say that ‘backward class of citizens’ in Article
16(4) are the same as the socially and educationally backward
classes in Article 15(4). Saying so would mean and imply
reading a limitation into a beneficial provision like Article 16(4).
Moreover, when speaking of reservation in appointments/posts
in the State services — which may mean, at any level
133
whatsoever — insisting upon educational backwardness may not
be quite appropriate.”
(emphasis supplied by us)
(b). Article 16(4) applies to much larger classes than is contemplated
by Article 340. Thus, it would not be correct to say that the backward
class of citizens under Article 16(4) is the same as provided as socially
and backward classes in Article 15(4). What is backward community,
has been considered in Indra Sawhney (supra) thus:
“693. Ultimately Dr. B.R. Ambedkar, the Chairman of the
Drafting Committee, got up to clarify the matter. His speech,
which put an end to all discussion and led to adopting of draft
Article 10(3), is worth quoting in extenso, since it throws light
on several questions relevant herein:
“ … [T]here are three points of view which it is necessary
for us to reconcile if we are to produce a workable
proposition which will be accepted by all. Of the three
points of view, the first is that there shall be equality of
opportunity for all citizens. It is the desire of many
Members of this House that every individual who is
qualified for a particular post should be free to apply for
that post, to sit for examinations and to have his
qualifications tested so as to determine whether he is fit for
the post or not and that there ought to be no limitations,
there ought to be no hindrance in the operation of this
principle of equality of opportunity. Another view mostly
shared by a section of the House is that, if this principle is
to be operative — and it ought to be operative in their
judgment to its fullest extent — there ought to be no
reservations of any sort for any class or community at all,
that all citizens, if they are qualified, should be placed on
the same footing of equality so far as the public services are
concerned. That is the second point of view we have. Then
we have quite a massive opinion which insists that,
although theoretically it is good to have the principle that
there shall be equality of opportunity, there must at the
same time be a provision made for the entry of certain
communities which have so far been outside the
administration. As I said, the Drafting Committee had to
produce a formula which would reconcile these three points
of view, firstly, that there shall be equality of opportunity,
134
secondly that there shall be reservations in favour of certain
communities which have not so far had a ‘proper look-in’
so to say into the administration. If Honourable Members
will bear these facts in mind — the three principles we had
to reconcile, — they will see that no better formula could
be produced than the one that is embodied in sub-clause (3)
of Article 10 of the Constitution; …. It is a generic
principle. At the same time, as I said, we had to reconcile
this formula with the demand made by certain communities
that the administration which has now — for historical
reasons — been controlled by one community or a few
communities, that situation should disappear and that the
others also must have an opportunity of getting into the
public services. Supposing, for instance, we were to
concede in full the demand of those communities who have
not been so far employed in the public service to the fullest
extent, what would really happen is, we shall be completely
destroying the first proposition upon which we are all
agreed, namely, that there shall be an equality of
opportunity. Let me give an illustration. Supposing, for
instance, reservations were made for a community or a
collection of communities, the total of which came to
something like 70% of the total posts under the State and
only 30% are retained as the unreserved. Could anybody
say that the reservation of 30% as open to general
competition would be satisfactory from the point of view of
giving effect to the first principle, namely, that there shall
be equality of opportunity? It cannot be in my judgment.
Therefore the seats to be reserved, if the reservation is to be
consistent with sub-clause (1) of Article 10, must be
confined to a minority of seats. It is then only that the first
principle could find its place in the Constitution and be
effective in operation. If Honourable Members understand
this position that we have to safeguard two things, namely,
the principle of equality of opportunity and at the same
time satisfy the demand of communities which have not
had so far representation in the State, then, I am sure they
will agree that unless you use some such qualifying phrase
as ‘backward’ the exception made in favour of reservation
will ultimately eat up the rule altogether. Nothing of the
rule will remain. That I think if I may say so, is the
justification why the Drafting Committee undertook on its
own shoulders the responsibility of introducing the word
‘backward’ which, I admit, did not originally find a place in
the fundamental right in the way in which it was passed by
this Assembly ….
135
Somebody asked me: ‘What is a backward
community’? Well, I think anyone who reads the language
of the draft itself will find that we have left it to be
determined by each local Government. A backward
community is a community which is backward in the
opinion of the Government.” (C.A.D., Vol. 7, p. 701)”
(emphasis supplied by us)
(c). In Indra Sawhney (supra), the Court held that once the
reservation has been provided to other backward classes, scheduled
castes and scheduled tribes within the purview of Article 16(4), any
further exemption, concession or preference to such class of persons
can be extended only under clause (4) of Article 16. Article 16(4) is
exhaustive of the special provisions that can be made in favour of a
backward class of citizens, that is, other backward classes, scheduled
castes, and scheduled tribes. Under Article 16(1), if the State wants to
make any reservation on whatever point, to address a specific
situation, Article 16(4) acts as a damper as there would be whittling
down of the vacancies for free competition, and that is not a
reasonable thing to do. In Indra Sawhney (supra), the Court held:
“743. x x x In our opinion, therefore, where the State finds it
necessary — for the purpose of giving full effect to the provision
of reservation to provide certain exemptions, concessions or
preferences to members of backward classes, it can extend the
same under clause (4) itself. In other words, all supplemental and
ancillary provisions to ensure full availment of provisions for
reservation can be provided as part of concept of reservation
itself. Similarly, in a given situation, the State may think that in
the case of a particular backward class it is not necessary to
provide reservation of appointments/posts and that it would be
sufficient if a certain preference or a concession is provided in
their favour. This can be done under clause (4) itself. In this
sense, clause (4) of Article 16 is exhaustive of the special
provisions that can be made in favour of “the backward class of
136
citizens”. Backward Classes having been classified by the
Constitution itself as a class deserving special treatment and the
Constitution having itself specified the nature of special
treatment, it should be presumed that no further classification or
special treatment is permissible in their favour apart from or
outside of clause (4) of Article 16.”
(emphasis supplied by us)
744. The aspect next to be considered is whether clause (4) is
exhaustive of the very concept of reservations? In other words,
the question is whether any reservations can be provided outside
clause (4) i.e., under clause (1) of Article 16. There are two
views on this aspect. On a fuller consideration of the matter, we
are of the opinion that clause (4) is not, and cannot be held to be,
exhaustive of the concept of reservations; it is exhaustive of
reservations in favour of backward classes alone. Merely
because, one form of classification is stated as a specific clause,
it does not follow that the very concept and power of
classification implicit in clause (1) is exhausted thereby. To say
so would not be correct in principle. But, at the same time, one
thing is clear. It is in very exceptional situations, — and not for
all and sundry reasons — that any further reservations, of
whatever kind, should be provided under clause (1). In such
cases, the State has to satisfy, if called upon, that making such a
provision was necessary (in public interest) to redress a specific
situation. The very presence of clause (4) should act as a damper
upon the propensity to create further classes deserving special
treatment. The reason for saying so is very simple. If
reservations are made both under clause (4) as well as under
clause (1), the vacancies available for free competition as well as
reserved categories would be a correspondingly whittled down
and that is not a reasonable thing to do.
x x x
859. We may summarise our answers to the various questions
dealt with and answered hereinabove:
(1) x x x
(2) (a) Clause (4) of Article 16 is not an exception to clause (1).
It is an instance and an illustration of the classification
inherent in clause (1). (Paras 741-742)
(b) Article 16(4) is exhaustive of the subject of reservation in
favour of backward class of citizens, as explained in this
judgment. (Para 743)
(c) Reservations can also be provided under clause (1) of Article
16. It is not confined to extending of preferences, concessions
137
or exemptions alone. These reservations, if any, made under
clause (1) have to be so adjusted and implemented as not to
exceed the level of representation prescribed for ‘backward
class of citizens’ — as explained in this Judgment. (Para 745)
860. For the sake of ready reference, we also record our answers
to questions as framed by the counsel for the parties and set out
in para 681. Our answers question-wise are:
(1) Article 16(4) is not an exception to Article 16(1). It is an
instance of classification inherent in Article 16(1). Article
16(4) is exhaustive of the subject of reservation in favour of
backward classes, though it may not be exhaustive of the
very concept of reservation. Reservations for other classes
can be provided under clause (1) of Article 16.
(2) The expression ‘backward class’ in Article 16(4) takes in
‘Other Backward Classes’, SCs, STs and may be some other
backward classes as well. The accent in Article 16(4) is upon
social backwardness. Social backwardness leads to
educational backwardness and economic backwardness. They
are mutually contributory to each other and are intertwined
with low occupations in the Indian society. A caste can be and
quite often is a social class in India. Economic criterion
cannot be the sole basis for determining the backward class
of citizens contemplated by Article 16(4). The weaker
sections referred to in Article 46 do include SEBCs referred
to in Article 340 and covered by Article 16(4).
x x x
(7) No special standard of judicial scrutiny can be predicated in
matters arising under Article 16(4). It is not possible or
necessary to say more than this under this question.”
139. In the instant case, it is not in dispute that the district is a local
area and a unit for the appointment of teachers and reservation is
provided at the district level and as per the Presidential Order under
Article 371D of the Constitution, incumbent of one district cannot
stake claim outside the district for an appointment. The reservations
for scheduled tribes are covered within the ken of Article 16(4). Thus,
no further preference or classification could have been made under
138
Article 16(1) of the Constitution of India in favour of scheduled tribes
as Article 16(4) is exhaustive of the special provisions that can be
made in favour of scheduled castes, scheduled tribes, and other
backward classes. Reservation for the other classes can be provided
under Article 16(1) and not to scheduled tribes to whom the
reservation has been provided under Article 16(4). Thus, as argued on
behalf of respondents, it cannot be said to be a case of classification
made under Article 16(1) of the Constitution of India. It is a case of
tinkering with the percentage of reservation permissible as per the
dictum of Indra Sawhney (supra). Other incumbents who are in the
reserved classes such as scheduled castes and other backward classes
and even Scheduled Tribes who have settled after 26.1.1950 beside
incumbents of open category, were deprived of the right to stake claim
to obtain public employment as against the posts in question. In the
background of the discussion made in the earlier part of the judgment,
it is crystal clear that the order passed providing 100% reservation is
arbitrary, illegal, impermissible, and unconstitutional.
140. The 100 percent reservation has been provided. It cannot be
said to be a case of classification that has been made under Article
16(1). Assuming, for the sake of argument, it is to be a case of
classification under Article 16(1), it would have been discriminatory
139
and grossly arbitrary without rationale and violative of constitutional
mandate.
141. The incumbents of various categories have the right to stake a
claim for the employment of which they have been deprived. Thus, it is
not a matter of classification. The reservation under Article 16(4) was
made. By way of 100% reservation, the employment to others was
illegally deprived and they have no chance of employment as against
the post of teachers elsewhere because of the order under Article 371D
in which district/zone is a unit. It is a clear case of tinkering with
reservation.
In Re: Question No.4: Whether the conditions of eligibility that is
the origin and cutoff date to avail the benefit of reservation in
the notification is reasonable:
142. It has been provided in the notification that the local scheduled
tribe's candidates have been defined to be scheduled tribes notified as
under Article 342 of the Constitution of India, if the candidates of
scheduled tribes themselves or their parents have been continuously
residing in the scheduled areas of the district in which they are
residing from the date i.e., 26th January 1950.
143. The condition of continuously residing in the district is ex facie
arbitrary. Article 15(1) of the Constitution provides that State shall
not discriminate inter alia on the ground of place of birth, however,
under Article 15(4), it is provided that reservation can be made in
140
favour of citizens of backward classes i.e. Scheduled Castes and
Scheduled Tribes and special provision can be carved out for their
advancement. It is also open to prescribe for conditions of eligibility
on the ground of residence in a particular area as well as on the
educational requirements but that cannot be fixed arbitrarily and
irrationally.
144. In the Presidential Order called the Andhra Pradesh Public
Employment (Organisation of Local Cadres and Regulation of Direct
Recruitment) Order, 1975, (for short, “1975 Order”) “Local Candidate”
has been defined in para 7 thus:
“7. Local Candidate:- (1) A candidate for direct recruitment to
any post shall be regarded as a local candidate in relation to a
local area.
(a) in cases where a minimum educational qualification
has been prescribed for recruitment to the post.
(i) if he has studied in an educational institution or
educational institutions in such local area for a period
of not less than four consecutive academic years
ending with the academic year in which he appeared
or, as the case may be, first appeared for the relevant
qualifying examination; or
(ii) where during the whole or any part of the four
consecutive academic years ending with the academic
year in which he appeared or as the case may be, first
appeared for the relevant qualifying examination he
has not studied in any educational institution, if he has
resided in that local area for a period of not less than
four years immediately preceding the date of
commencement of the qualifying examination in which
he appeared or as the case may be, first appeared.
(b) In cases where no minimum educational qualification
has been prescribed for recruitment to the post, if he has
resided in that local area for a period of not less than four
141
years immediately preceding the date on which the post is
notified for recruitment.
*** *** ***
*** *** ***
(2) A candidate for direct recruitment to any post who is not
regarded as a local candidate under sub paragraph (1) in relation
to any local area shall.
(a) in cases where a minimum educational qualification
has been prescribed for recruitment to the post.
(i) if he has studied in educational institutions in
the State for a period of not less than seven consecutive
academic years ending with academic year in which he
appeared or as the case may be, first appeared for the
relevant qualifying examination, be regarded as a local
candidate in relation to
(1) Such local area where he has studied
for the maximum period out of the said period
of seven years; or
(2) where the periods of his study in two or
more local areas are equal, such local areas
where he has studied last in such equal periods;
(ii) if during the whole or any part of the seven
consecutive academic years ending with the academic
years in which he appeared or as the case may be first
appeared for the relevant qualifying examination, he
has not studied in the educational institutions in any
local area, but has resided in the State during the whole
of the said period of seven years, be regarded as a local
candidate in relation to
(1) such local area where he has resided
for a maximum period out of the said period of
seven years: or
(2) where the periods of his residence in
two or more local areas are equal, such local
areas where he has resided last in such equal
periods;
(b) In cases where no minimum educational qualification
has been prescribed for recruitment to the post, if he has
resided in the State for a period of not less than seven years
immediately preceding the date on which the post is notified
for recruitment, be regarded as a local candidate in relation to
142
(i) such local area where he has resided for the
maximum period out of the said period of seven years;
or
(ii) where the periods of his residence in two or
more local areas are equal such local area where he has
resided last in such equal periods.”
145. Para 7(1) of the 1975 Order provided that a candidate shall be
regarded as a local candidate in relation to local area in cases where a
minimum qualification is prescribed for recruitment to the post i.e. a
person who has studied in such local area for a period of not less than
four consecutive academic years or if he has resided in that local area
for a period of not less than four years immediately preceding the date
of commencement of qualifying examination in which he appeared.
146. Para 7(2) of the 1975 Order provides that candidate for direct
recruitment to any post, who is not regarded as a local candidate in
relation to any local area, shall study for 7 consecutive academic years
where a minimum educational qualification has been prescribed for
recruitment to the post. Condition of Study for less than 7 consecutive
academic years is also provided for a resident for a period of seven
years with certain stipulation in para 7(2)(A)(2)(ii).
147. The G.O. in question requires candidate or the parents to reside
in the area continuously w.e.f. 26.1.1950 to date. There is no rhyme
or reason to require continuous residence for last 50 years or more. It
overlooks the rights of various other persons who might have settled
143
decades together in the area in question. It is discriminatory visàvis
to the scheduled tribes also settled in the area and it has no purpose
to be achieved and imposes restriction which was not even provided in
the Presidential Order issued under Article 371D of the Constitution of
India with respect to residential or educational requirements. Thus, it
does not lay down valid conditions. The same is fixed in highly
unreasonable and arbitrary manner and limits zone of consideration
to miniscule where an opportunity for public employment has to be
afforded to all concerned with reasonable rights.
148. Public employment envisages opportunity to all, who have been
provided reservation is by way of exception to do the compensatory
jobs. The condition above deprives the scheduled tribes who are
permanent residents of the areas and have settled after the said cutoff date. Thus, the classification created is illegal, unreasonable, and
arbitrary. Making such a provision that a person should be a resident
on or before 26th January 1950 to date is discriminatory and has the
effect of exceeding the purpose of providing the reservation. It defeats
the rights of other similar tribes who might have settled after 26th
January 1950 in the area taken care of in the Presidential Order
under Article 371D. It is violative of Articles 14, 15(1) and 16 of the
Constitution and has no rationale with the purpose sought to be
achieved. It creates a class within a class, and the classification made
144
failed to qualify the parameters of Articles 14, 15 and 16 of the
Constitution of India.
REVISION OF LISTS
149. Article 341(1) provides for the inclusion of castes, races, or tribes
to be Scheduled Castes in relation to any State. Article 341(2)
empowers the Parliament to include or exclude from the list of
Scheduled Castes any caste, race or tribe. Article 341(2) is extracted
hereunder:
“341.— (1)**
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under
clause (1) any caste, race or tribe or part of or group within
any caste, race or tribe, but save as aforesaid a notification
issued under the said clause shall not be varied by any
subsequent notification.”
150. Identical provisions in relation to the inclusion of Scheduled
Tribes are provided in Article 342(1), and the Parliament's power to
amend is provided in Article 342(2). Similar provisions are contained
with respect to socially and educationally backward classes in Article
342A. Scheduled Area is defined in Para 6 of Schedule V, and the
power to amend is provided in Para 7 of Schedule V. It is also
provided in Para 3 of the Schedule V that the Governor has to send a
report to the President regarding the administration of Scheduled
Areas. The objective is to keep track of the progress in the areas. The
report is essential for deciding to make reservations and for its review.
145
Oversight is required to be kept by the Constitutional authorities, and
the Parliament has been given the right to amend the list and the
Schedule.
151. In Indra Sawhney (supra), it was held that the State Lists
adopted to provide reservations by the Government are not meant to
be sacrosanct and unalterable. There may be cases where
Commissions appointed by the State may have, in their reports,
recommended modification of such lists by deletion or addition of
certain castes, communities, and classes. Where such reports are
available, the State Government is bound to act on that basis with
reasonable promptitude. If the State Government effects any
modification or alteration by way of deletions or additions, the same
shall be intimated to the Government of India forthwith. This Court
opined concerning the modifications and rectification of such list thus:
“853. At the same time, we think it necessary to make the
following clarification: It is true that the Government of India
has adopted the State lists obtaining as on August 13, 1990 for its
own purposes but that does not mean that those lists are meant to
be sacrosanct and unalterable. There may be cases where
commissions appointed by the State Government may have, in
their reports, recommended modification of such lists by deletion
or addition of certain castes, communities and classes. Wherever
such commission reports are available, the State Government is
bound to look into them and take action on that basis with
reasonable promptitude. If the State Government effects any
modification or alteration by way of deletions or additions, the
same shall be intimated to the Government of India forthwith
which shall take appropriate action on that basis and make
necessary changes in its own list relating to that State. Further, it
shall be equally open to, indeed the duty of, the Government of
146
India — since it has adopted the existing States lists — to look
into the reports of such commission, if any, and pass its own
orders, independent of any action by the State Government,
thereon with reasonable promptitude by way of modification or
alternation. It shall be open to the Government of India to make
such modification/alteration in the lists adopted by way of
additions or deletions, as it thinks appropriate on the basis of the
Reports of the Commission(s). This direction, in our opinion,
safeguards against perpetuation of any errors in the State lists
and ensures rectification of those lists with reasonable
promptitude on the basis of the Reports of the Commissions
already submitted, if any. This course may be adopted de hors
the reference to or advice of the permanent mechanism (by way
of Commission) which we have directed to be created at both
Central and State level and with respect to which we have made
appropriate directions elsewhere.”
152. The Court in Rakesh Kumar (supra) emphasised need of
periodical review and held:
“37. It is a well-accepted premise in our legal system that ideas
such as “substantive equality” and “distributive justice” are at
the heart of our understanding of the guarantee of “equal
protection before the law”. The State can treat unequals
differently with the objective of creating a level-playing field in
the social, economic and political spheres. The question is
whether “reasonable classification” has been made on the basis
of intelligible differentia and whether the same criteria bears a
direct nexus with a legitimate governmental objective. When
examining the validity of affirmative action measures, the
enquiry should be governed by the standard of proportionality
rather than the standard of “strict scrutiny”. Of course, these
affirmative action measures should be periodically reviewed and
various measures modified or adapted from time to time in
keeping with the changing social and economic conditions.
Reservation of seats in panchayats is one such affirmative action
measure enabled by Part IX of the Constitution.”
(emphasis supplied by us)
153. Now there is a cry within the reserved classes. By now, there are
affluents and socially and economically advanced classes within
Scheduled Castes and Scheduled Tribes. There is voice by deprived
147
persons of social upliftment of some of the Scheduled Castes/Tribes,
but they still do not permit benefits to trickle down to the needy. Thus,
there is a struggle within, as to worthiness for entitlement within
reserved classes of scheduled castes and scheduled tribes and other
backward classes.
In our opinion, it was rightly urged by Dr. Rajeev Dhawan that
the Government is required to revise the lists. It can be done
presently without disturbing the percentage of reservation so that
benefits trickle down to the needy and are not usurped by those
classes who have come up after obtaining the benefits for the last 70
years or after their inclusion in the list. The Government is dutybound to undertake such an exercise as observed in Indra Sawhney
(supra) and as constitutionally envisaged. The Government to take
appropriate steps in this regard.
154. We answer the questions referred to us thus:
Question No.1: The Governor in the exercise of powers under Para
5(1), Fifth Schedule of the Constitution, can exercise the powers
concerning any particular Act of the Parliament or the legislature of
the State. The Governor can direct that such law shall not apply to
the Scheduled Areas or any part thereof. The Governor is empowered
to apply such law to the Scheduled Area or any part thereof in the
State subject to such exceptions and modifications as he may specify
148
in the notification and can also issue a notification with retrospective
effect.
Question No.1(a): The Governor is empowered under Para 5(1), Fifth
Schedule of the Constitution, to direct that any particular Act of
Parliament or the Legislature of the State, shall not apply to a
Scheduled Area or apply the same with exceptions and modifications.
The Governor can make a provision within the parameters of
amendment/ modification of the Act of Parliament or State legislature.
The power to make new laws/regulations, is provided in Para 5(2),
Fifth Schedule of the Constitution for the purpose mentioned therein,
not under Para 5(1) of the Fifth Schedule to the Constitution of India.
Question No.1(b): The power of the Governor under Para 5(1), Fifth
Schedule to the Constitution does not extend to subordinate
legislation, it is with respect to an Act enacted in the sovereign
function by the Parliament or legislature of the State which can be
dealt with.
Question No.1(c): The Governor’s power under Para 5(1) of the Fifth
Schedule to the Constitution is subject to some restrictions, which
have to be observed by the Parliament or the legislature of the State
while making law and cannot override the fundamental rights
149
guaranteed under Part III of the Constitution.
Question No.1(d): In exercise of power under Para 5(1) of the Fifth
Schedule to the Constitution of India, the Governor cannot override
the notification issued by the President in the exercise of powers
under Article 371D. The power has to be exercised harmoniously with
such an order issued under Article 371D, not in conflict thereof.
Question No.2: G.O.Ms. No.3/2000 providing for 100 per cent
reservation is not permissible under the Constitution, the outer limit
is 50 per cent as specified in Indra Sawhney (supra).
Question No.3: The notification in question cannot be treated as
classification made under Article 16(1). Once the reservation has been
provided to Scheduled Tribes under Article 16(4), no such power can
be exercised under Article 16(1). The notification is violative of Articles
14 and 16(4) of the Constitution of India.
Question No.4: The conditions of eligibility in the notification with a
cutoff date, i.e., 26.1.1950, to avail the benefits of reservation, is
unreasonable and arbitrary one.
RELIEF:
As a sequel to the quashing of G.O. Ms. No.3 of 2000, the
appointments made in excess of the permissible reservation cannot
150
survive and should be set aside. However, on behalf of State and
other respondents, it was urged that appointments may not be set
aside. In the peculiar circumstances, the incumbents, who have been
appointed, cannot be said to be at fault and they belong to Scheduled
Tribes.
We cannot ignore the fact that a similar G.O. was issued by the
erstwhile State Government of Andhra Pradesh in the year 1986,
which was quashed by the State Administrative Tribunal, against
which an appeal was preferred in this Court, which was dismissed as
withdrawn in the year 1998. After withdrawal of the appeal from this
Court, it was expected of the erstwhile State of Andhra Pradesh not to
resort to such illegality of providing 100% reservation once again. But
instead, it issued G.O. Ms. No.3 of 2000, which was equally
impermissible, even if the A.P. Regulation of Reservation and
Appointment to Public Services Act, 1997 would have been amended,
in that event also providing reservation beyond 50% was not
permissible. It is rightly apprehended by appellants that the State
may again by way of misadventure, resort to similar illegal exercise as
was done earlier. It was least expected from the functionary like
Government to act in aforesaid manner as they were bound by the
dictum laid down by this Court in Indra Sawhney (supra) and other
decisions holding that the limit of reservation not to exceed 50%.
There was no rhyme or reason with the State Government to resort to
151
100% reservation. It is unfortunate that illegal exercise done in 1986
was sought to be protected by yet another unconstitutional attempt by
issuing G.O.Ms. No.3 of 2000 with retrospective effect of 1986, and
now after that 20 years have passed. In the peculiar circumstance, we
save the appointments conditionally that the reorganised States i.e.
the States of Andhra Pradesh and Telangana not to attempt a similar
exercise in the future. If they do so and exceed the limit of
reservation, there shall not be any saving of the appointments made,
w.e.f. 1986 till date. We direct the respondentsStates not to exceed
the limits of reservation in future. Ordered accordingly.
Resultantly, we allow the appeals, and save the appointments
made so far conditionally with the aforesaid riders. The cost of appeal
is quantified at Rupees Five Lakhs and to be shared equally by the
States of Andhra Pradesh and Telangana.
..……………………….J.
(Arun Mishra)
..……………………….J.
(Indira Banerjee)
..……………………….J.
(Vineet Saran)
152
…..…………………….J.
(M.R. Shah)
New Delhi …………………………J.
April 22, 2020 (Aniruddha Bose)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3609 OF 2002
CHEBROLU LEELA PRASAD RAO & ORS. … APPELLANTS
VERSUS
STATE OF A.P. & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO.7040 OF 2002
J U D G M E N T
ARUN MISHRA, J.
1. In the reference, the validity of the Government Office Ms. No.3
dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh
providing 100% reservation to the Scheduled Tribe candidates out of
whom 33.1/3% shall be women for the post of teachers in the schools
in the scheduled areas in the State of Andhra Pradesh, is under
challenge.
2. Several questions have been referred for consideration in the
order dated 11.1.2016. We have renumbered question nos.1(a)(b)(c)
and (d) based on interconnection. The questions are as follows:
“(1) What is the scope of paragraph 5(1), Schedule V to the
Constitution of India?
2
(a) Does the provision empower the Governor to make a new
law?
(b) Does the power extend to subordinate legislation?
(c) Can the exercise of the power conferred therein override
fundamental rights guaranteed under Part III?
(d) Does the exercise of such power override any parallel
exercise of power by the President under Article 371D?
(2) Whether 100% reservation is permissible under the
Constitution?
(3) Whether the notification merely contemplates a classification
under Article 16(1) and not reservation under Article 16(4)?
(4) Whether the conditions of eligibility (i.e., origin and cut-off
date) to avail the benefit of reservation in the notification are
reasonable?"
3. The facts in the backdrop project that by G.O.Ms. No.275 dated
5.11.1986, issued by the Governor in exercise of power under para
5(1) of Schedule V to the Constitution of India, directing the posts of
teachers in educational institutions in the scheduled tribe areas shall
be reserved for Scheduled Tribes only notwithstanding anything
contained in any other order or rule or law in force. The Andhra
Pradesh Administrative Tribunal (for short “the tribunal”) quashed the
notification by order dated 25.8.1989. The order was questioned in
this Court in C.A. Nos.230506/1991, which was dismissed as
withdrawn on 20.3.1998.
4. Another G.O.Ms. No.73 dated 25.4.1987 was issued to amend
GOMs. No.275 dated 5.11.1986 to allow the appointment of nontribals to hold the posts of teachers in the scheduled areas till such
3
time the qualified local tribals were not made available. After that,
nontribals who were appointed as teachers in the scheduled areas
filed Writ Petition No.5276/1993 in the High Court of Andhra Pradesh
at Hyderabad against termination of their services. The same was
allowed vide judgment and order dated 5.6.1996 and GOMs. No.73
dated 25.4.1987, and the advertisements were held to be violative of
Article 14 of the Constitution of India. In writ appeal, the order of the
Single Bench was set aside by the Division Bench vide judgment and
order dated 20.8.1997. The decision in W.P. No.16198/1988 thus
prevailed. The nontribal appointees preferred Civil Appeal 6437/1998
before this Court, which was allowed on 18.12.1998.
5. After this Court rendered the decision on 18.12.1998, the
Government issued a fresh notification vide GOMs. No. 3 dated
10.1.2000 effectively providing for 100% reservation in respect of
appointment to the posts of teachers in the scheduled areas. The
tribunal set aside the GOMs. Aggrieved thereby, writ petitions were
filed in the High Court, a 3Judge Bench by majority upheld the
validity of G.O. Aggrieved by the same, the appeals have been
preferred.
6. The majority view opined that historically scheduled areas were
treated specially, and affirmative action taken was in the
constitutional spirit. The notification was a step for increasing literacy
4
in the scheduled areas and also aimed at providing the availability of
teachers in every school in the scheduled areas. 100% reservation can
be sustained on the ground that it was based on intelligible differentia,
and the classification has nexus with the object sought to be achieved.
The G.O. became necessary considering the phenomenal absenteeism
of the teachers in the schools situated in the scheduled areas and was
a step in aid to promote educational developments of tribals. In
extraordinary situations, reservation can exceed 50%. The Governor
possessed the power to issue the impugned notification under
Schedule V, para 5(1) of the Constitution. The same overrides all other
provisions of the Constitution, including Part III of the Constitution of
India.
7. The High Court in the minority view opined that providing 100%
reservation for Scheduled Tribes in scheduled areas offends the spirit
of Articles 14 and 16 of the Constitution of India. The Governor is not
conferred power to make any law in derogation to Part III or other
provisions of the Constitution of India in the exercise of his power
under Clause I, Para 5 of Schedule V. It was also held that G.O.Ms.
No.3 is discriminatory as the same adversely affects not only the open
category candidates but also other Scheduled Castes, Scheduled
Tribes, and backward classes. It also opined that the reservation
under Article 16(4) should not exceed 50%. However, little relaxation
5
was permissible. The rules made under Article 309 of the Constitution
could not be treated as an Act of Parliament or State Legislature.
8. G.O.Ms. No.3 dated 10.1.2000, validity of which is questioned,
reserved all posts in the educational institutions within the scheduled
areas in favour of the local Scheduled Tribes. The order is extracted
hereunder:
"Whereas, under sub-paragraph (1) of paragraph 5 of the Fifth
Schedule to the Constitution of India, the Governor of Andhra
Pradesh may by public notification direct that any particular Act
of Parliament or of Legislature of the State shall not apply to the
Scheduled Areas or any part thereof in the State or shall apply to
a scheduled area or any part thereof subject to specified
exceptions and modifications;
2. AND WHEREAS, in G.O.Ms.No.275, Social Welfare
Department dated 5.11.1986, a notification has been issued
exercising the powers conferred under sub-paragraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution of India
directing that the posts of teachers in the Educational Institutions
in the Scheduled Areas of State shall be filled in only by the
local members of the Scheduled Tribes;
3. AND WHEREAS, the Andhra Pradesh Administrative
Tribunal in its order dated 25.8.1989 in R.P.Nos.6377 and 6379
of 1988 quashed the orders issued in G.O.Ms.No.275, Social
Welfare Department dated 5.11.1986 on the ground that the
notification issued under sub-paragraph (1) of paragraph 5 of the
Fifth Scheduled to the Constitution of India does not reflect the
existence of either a State or a Central Legislation referable for
issuing such notification;
4. AND WHEREAS, the Division Bench of the High Court of
Andhra Pradesh in its judgement dated 20-8-1997 in Writ Appeal
No.874 of 1997 filed by the Project Officer, I.T.D.A.,
Rampachodayaram, East Godavari District, directed to continue
the petitioners respondents in their respective posts of teachers
without any break as temporary employees until replaced by the
6
qualified local tribals as and when such tribals are available to
fill up those posts;
5. AND WHEREAS, the Andhra Pradesh Administrative
Tribunal subsequently while disposing of O.A.No.4598/97 in its
order dt.22.9.1997 directed the respondents to follow the
statutory rules while making recruitment to the posts of
Secondary Grade Teachers and also Telugu Pandits, Grade. I in
Agency Areas without taking into consideration of the orders
issued in G.O.Ms.No.275, Social Welfare Department, dated
5.11.1986.
6. AND WHEREAS, the Supreme Court of India while allowing
Civil Appeal No.6437/98 in its order dated 18th December 1998,
set aside the orders of the Andhra Pradesh Administrative
Tribunal on the ground that the State withdraw the appeals
arising out of the S.L.P. Nos.14562-63 of 1989:
7. AND WHEREAS, the Government considers that rule 4 (b) of
the Andhra Pradesh School Educational Subordinate Service
Rules, 1992 and rule 22A of the Andhra Pradesh State and
Subordinate Service Rules, 1996 shall be modified to the extent
that only Scheduled Tribe Women shall be appointed in
Scheduled Areas against 33 1/3% reservation in respect of
direct recruitment;
8. AND WHEREAS, the consultation of the Tribes Advisory
Council has been made as required under sub-paragraph (5) of
paragraph 5 of the Fifth Schedule to the constitution of India.
9. AND WHEREAS, the Government of Andhra Pradesh in
order to strengthen the educational infrastructure in the
Scheduled Areas, to promote educational development of
Tribals, to solve the phenomenal absenteeism of Teachers in the
Schools situated in Scheduled Areas and with a view to protect
the interests of local tribals have decided to reserve the posts of
teachers in favour of local Scheduled Tribes candidates;
10. AND WHEREAS, the Government considered to re-issue the
said orders retrospectively from 5.11.1986 keeping in view the
provisions of sub-paragraph (1) of paragraph 5 of Fifth Schedule
to the Constitution;
11. The following notification will be published in part-IV-B
Extraordinary issue of the Andhra Pradesh Gazette, dated
10.1.2000.
NOTIFICATION
7
In exercise of the power conferred by subparagraph (1) of
paragraph 5 of the Fifth Schedule to the Constitution of India
and in Supersession of the notification issued in G.O.Ms.No.275,
Social Welfare Department, dated the 5th November 1986, as
subsequently amended in G.O. Ms. No.73, Social Welfare
Department, dated the 25th April 1988, the Governor of Andhra
Pradesh hereby directs that sections 78 and 79 of the Andhra
Pradesh Education Act, 1982 (Act 1 of 1982) and sections 169,
195 and 268 of the Andhra Pradesh Panchayat Raj Act, 1994
(Act 13 of 1994) and rule 4 (a) of the Andhra Pradesh School
Educational Subordinate Service Rules issued in G.O.Ms.No.538
Education (Ser. II) Department, dated the 20th November 1998
and rule 22 and 22A of the Andhra Pradesh State and
Subordinate Service Rules, 1996 and any other rules made in this
regard shall apply to the appointment of posts of teachers in
schools situated, in the Scheduled areas in the State subject to the
modification that all the posts of teachers in the Schools situated
in Scheduled Areas in the State of Andhra Pradesh shall be filled
in by the local Scheduled Tribe candidates only out of whom 33
1/3% shall women.
EXPLANATION:- For the purpose of this notification, the 'Local
Scheduled Tribe Candidate' means, the candidate belonging to
the Scheduled Tribes notified as such under article 342 of the
Constitution of India and the candidates themselves or their
parents have been continuously residing in the scheduled areas
of the Districts in which they are residents till to date since the
26th January 1950."
(emphasis supplied)
9. In the notification various provisions have been mentioned.
Section 78 of the A.P. Education Act, 1982 provides for the
constitution of educational service. It confers power upon the
Governor to make rules to regulate the classification, methods of
recruitment, conditions of service, pay and allowances and discipline
and conduct of the members of the educational service. Section 79
inter alia deals with dismissal, removal, reduction in rank and
suspension of the employees of private institutions. Section 169 of the
8
A.P. Panchayat Raj Act, 1994 deals with creation of the posts of
officers and employees of the Mandal Parishad, the method of
recruitment and conditions of service. Section 195 of the A.P.
Panchayat Raj Act, 1994, provides for creation of posts of officers and
employees of Zilla Parishad, the method of recruitment, conditions of
service, etc. Section 268 of the said Act empowers the Government to
make rules.
10. The Andhra Pradesh State and Subordinate Service Rules, 1996
referred to in the notification were made by the State in exercise of the
power conferred under proviso to Article 309 of the Constitution of
India. Rule 22 of the Andhra Pradesh State and Subordinate Service
Rules, 1996 provides for reservation. Rule 22 is extracted hereunder:
“Special Representation (Reservation): (1) Reservation may be
made for appointments to a service, class or category in favour
of Scheduled Castes, Scheduled Tribes, Backward Classes,
Women, Physically handicapped, Meritorious Sportsman, ExServicemen and such other categories, as may be prescribed by
the Government from time to time, to the extent and in the
manner specified hereinafter in these rules or as the case may be,
in the special rules. The principle of reservation as hereinafter
provided shall apply all appointments to a service, class, or
category.
(i) by direct recruitment, except where the Government by a
General or Special Order made in this behalf, exempt such
service, class or category;
(ii) otherwise than by direct recruitment where the special rules
lay down specifically that the principle reservation in so far as it
relates to Scheduled Castes and Scheduled Tribes only shall
apply to such services, class, or category to the extent specified
therein.
9
(2)(a) The unit of appointments for the purpose of this rule shall
be one hundred vacancies, of which, fifteen shall be reserved for
scheduled for Scheduled Castes, six shall be reserved for
Scheduled Tribes, twenty-five shall be reserved for the
Backward Classes and the remaining fifty-four appointments
shall be made on the basis of open competition and subject to
Rule 22-A of these rules.
(e) Appointments under this rule shall be made in the order of
rotation specified below in a unit of hundred vacancies.
Rule 22-A: Women reservation in appointments:
Notwithstanding anything contained in these rules or special
rules or Ad hoc Rules:
(1) In the matter of direct recruitment to posts for which women
are better suited than men, preference shall be given to women:
Provided that such absolute preference to women shall not
result in total exclusion of men in any category of posts.
(2) In the matter of direct recruitment to posts for which women
and men are equality suited, there shall be reservation to women
to an extent of 33 1/3 % of the posts in each category of Open
Competition, Backward Classes (Group-A), Backward Classes
(Group-B), Backward Classes (Group-C), Backward Classes
(Group-D), Scheduled Castes, Scheduled Tribes and Physically
Handicapped and Ex-Servicemen quota.
(3) In the matter of direct recruitment to posts which are reserved
exclusively for being filled by women, they shall be filled by
women only.”
Six per cent reservation has been provided in the State for
Scheduled Tribes.
11. The A.P. Regulation of Reservation and Appointment to Public
Services Act, 1997, was enacted to ensure that the reservation
mandated under Rule 22 is followed scrupulously. The Act intended to
punish the officers for violation of the rules of reservation. The Act did
10
not provide any percentage of the reservation to the Scheduled Castes,
Scheduled Tribes, and the backward classes. The reservations were
provided under Rules 22 and 22A of the Rules framed under Article
309.
ARGUMENTS
12. It was submitted by Mr. C.S.N. Mohan Rao, Mr. G. Ramakrishna
Prasad and Mr. G.V.R. Choudhary, learned counsel and other learned
counsel for the appellants that the limited legislative power is
conferred on the Governor to modify the existing legislation made by
the Parliament or the State legislature under Para 5(1) of the Fifth
Schedule to the Constitution. The power to make regulation was
conferred under Para 5(2) of Schedule V. Under Para 5(1), there is no
such legislative power. The earlier G.O.Ms. of 1986 was quashed. After
that, the appeal preferred in this Court was withdrawn, and fresh G.O.
was issued, again perpetuating the illegality by providing a 100%
reservation.
13. Learned counsel for the appellants argued that Article 371D of
the Constitution contains special provisions concerning the State of
Andhra Pradesh, which has now been amended for Andhra Pradesh as
well as Telangana. After reorganisation of the States, the Article has
been amended in its application to Andhra Pradesh as well as
Telangana. Article 371D was promulgated given the geographical
11
disparities in the arena of public employment in the State of Andhra
Pradesh as candidates from certain districts were capturing a
disproportionately large number of posts, as such by way of the
Presidential Order issued under the said provisions, local cadres were
created for different parts of the State. The Presidential Order provided
for reservation on district/zonal basis for different posts. A
district/zone as the case may constitute a local area. A district is a
unit for teachers, and all the posts have been ordered to be filled by
scheduled tribe candidates in the scheduled areas in several districts.
14. Learned counsel for the appellants argued that as per the
Presidential Order issued under Article 371D, aspiring candidates
could not apply outside the district or zone, as the case may be. Thus,
the incumbents cannot apply outside their districts where they are
residing. Their chances of obtaining public employment as against the
posts of teachers have been taken away. Thus, the G.O. transgresses
the Presidential Order issued under Article 371D of the Constitution
as such the same is unconstitutional and could not prevail.
15. Learned counsel for the appellants further argued that providing
100% reservation is not permissible because of the catena of decisions
rendered by this Court, to be referred later. Learned counsel
vehemently argued that it is an unfortunate reality that the lawmakers are resorting to reservations on political basis catering to vote
12
bank, thereby ignoring the constitutional mandate to which they owe
allegiance. The reservation so provided is against the wishes of the
founding fathers of the Constitution. The reason employed of chronic
absenteeism in the schools, could not have been made the fulcrum
justifying 100% reservation. Merit has been ignored and whittled
down. The noble profession of teaching cannot be demeaned. There
cannot be a compromise with the standard of education in the garb of
cent percent reservation, and merit is a casualty. It tantamounts to
reverse discrimination. It cannot be said to be a case of classification,
but it is a case of reservation. It is highly unfair and unreasonable
action. The Constitution of India does not permit 100% reservation in
respect of any particular class or category to the total exclusion of
others. Reservation set out under Article 16 should not exceed the
limit of 50%.
16. The G.O. would be counterproductive to the aim of the
Constitution in providing protective legislation, and the main thrust of
the reservation is to bring in the disadvantaged classes into the
mainstream of the society at large. The idea of the tribal students to be
taught by tribal teachers in the scheduled areas is akin to
compromising with the merit and quality of education and further put
the tribal children at a disadvantage and segregate them from the
mainstream. Regarding the language barrier, learned counsel
13
argued that qualifications for teachers could be provided that they
should know the local language, a resident of a district invariably
knows the local language. In the impugned notification, no such
aspect was mentioned.
17. Learned counsel on behalf of the appellants further argued that
Rules 22 and 22A of the Andhra Pradesh State and Subordinate
Service Rules, 1996 provides for reservation framed under proviso to
Article 309 of the Constitution. The legislature did not frame them.
Thus, it could not have been amended or modified by the Governor in
exercise of the power under Para 5(1) of Schedule V to the
Constitution being subordinate legislation. That apart, it was argued
that no new law could have been created within the realm of Para 5(1)
of Schedule V. The Acts mentioned in G.O.Ms. No.3/2000 did not deal
with reservation. The Act of 1997, provided for the reservation, was
not amended. Even by amending the same, 100% reservation could
not have been provided.
18. The classification created within the scheduled tribes to benefit
only the candidates or their parents continuously residing in the
scheduled areas since 26.1.1950 is arbitrary, illegal, and
discriminatory visàvis the scheduled tribes also, besides other
categories. The executive order could not have provided the
reservation. The legislation was imperative to provide for a 100%
14
reservation. Testing the case on the anvil of the doctrine of basic
structure is not germane as it is not a case set up that provisions
under Para 5 of Schedule V are against the basic structure of the
Constitution. The provisions of Para 5 of Schedule V are not
questioned, but only the legality of the action taken thereunder. The
right of judicial review is available in case of any action taken, which
is per se illegal, arbitrary or violative of fundamental rights and sans
any basis.
19. Concerning the nonobstante clause, it was argued that the
order under Para 5 of Schedule V could not have been issued in
contravention of Article 371D. It contravened the Presidential order.
20. Dr. Rajeev Dhawan, learned senior counsel appearing for the
respondents, argued that the Constitution has a solicitude for
scheduled castes and scheduled tribes under various provisions
contained in Articles 15 and 16 and the Directive Principles contained
in Articles 37, 38, 47 and 51(A). There are special provisions carved
out providing reservation to SCs/ STs; there is National Commission
for Scheduled Tribes, Article 330 provides reservation of seats for SC/
ST in House of People, Article 332 provides reservation in State
Assemblies, Article 335 provides to consider the claim of SCs/STs to
services, Article 338 provides for the constitution of National
Commission for Scheduled Castes and Article 338A provides for the
15
constitution of National Commission for Scheduled Tribes. Articles
339, 341, 342 and 334, are other provisions relating to SCs/ STs.
Articles 343D and 343(T)(h) provide reservation for SC/ST in
Panchayats.
21. Learned senior counsel further argued that India's Constitution
is symmetrical and spatial for SCs/STs. In that view, the scheduled
areas are constituted under the provisions of Article 244 and
Schedules V and VI. The Constitution creates special classification.
Equality is a concept of antiarbitrariness. The normal rule of 50%
reservation can be relaxed in appropriate cases that have precisely
been done by the Governor. Reservation can be made by executive
order. Reservations cannot be termed to be antimeritarian. He urged
that the reservations were provided due to discrimination,
disadvantage, and to share the State power. Elaborately referred to the
decision in Indra Sawhney & Ors. v. Union of India & Ors., (1992)
Supp. 3 SCC 217, it was argued that reservations could be
rectified/revised. It is not permissible to subdivide the SCs and STs.
Article 16(4) aims at group backwardness. Strictly speaking, the
constitution of a Commission to enquire is not necessary for providing
further reservations, particularly for scheduled tribes in the scheduled
areas. The scope of judicial review is limited in such matters. He
referred to various dictums to be adverted to later.
16
22. Dr. Rajeev Dhawan, learned senior counsel, lastly argued that
G.O.Ms. No.3/2000 is constitutionally valid, and the Court may, if so
advised, issue directions to the States to maintain oversight. The
purposes of Article 371D and Para 5 of Schedule V are entirely
different. He further argued that to trickle down the necessary
benefits, the remedy lies in following what is inelegantly called the
"bottoms up" approach. The malady can be addressed by empowering
Gram Sabhas, ensuring the right to information, and strengthening its
implementation. Learned senior counsel alternatively argued that in
case this Court concludes that the G.O. is to be quashed, the
appointments made should not be disturbed.
23. Shri R. Venkataramani, learned senior counsel appearing for the
State of Andhra Pradesh, argued that the scheme of Schedule V, as a
whole, deserves to be dealt with on a special constitutional footing,
that is an exclusive constitutional enclave, free in its ambit to ensure
the promotion of the interests, concerns and the development of
scheduled areas. Paras 2 and 5 of the Fifth Schedule constitute its
essence. Para 2 enacts limitations on the executive power of the State
concerning the scheduled areas. Para 5 is a composite and particular
species of the enabling power, conferring on the Governor, legislative,
and administrative powers. The legislative and administrative powers
run seamlessly. For instance, the power under clause (1) of Para 5 to
17
extend a Central or State legislation to the scheduled area, "subject to
exceptions and modifications," confer a power to amend the
legislation. The power under clauses (1) and (2) operates in distinct
fields to achieve distinct purposes, each of them wide in their way. The
object to be achieved under clause (1) is to evaluate and assess the
relevance, fitness, or inappropriateness of any law in their application
to scheduled areas, the domain of policy with considerable latitude to
bring into force with modifications and exceptions any law.
24. Shri R. Venkataramani, learned senior counsel further argued
that the scheduled areas and the tribes constitute a special class. This
special homogenous class can always be dealt with on a special basis.
The G.O. was not issued to favour the local scheduled tribes or to
discriminate against others intentionally. It was passed to advance the
educational interests of the scheduled areas, even if it otherwise
impinges upon the claims under Article 14 or 16(1), cannot be faulted.
Even if the G.O. advances a class interest, it cannot be subjected to
scrutiny under Articles 14 and 16(1).
25. Shri R. Venkataramani further argued that there is no conflict
between Article 371D and Schedule V. The two operate in distinct
fields and achieve different purposes. The socioeconomic experiments
drafted by the legislatures, and in this case by the Governor, cannot
be subjected to judicial scrutiny. It is wrong to suggest that the non
18
obstante clause in Article 371D can annul the nonobstante clause
in Para 5 of the Fifth Schedule. Firstly, the two constitutional
provisions operate in distinct domains. Article 371D was not enacted
to be a superimposition on Schedule V. Secondly, it is well settled that
if the object and purpose of legislation or provisions with respective
nonobstante clauses are distinct, the Court would not see any
conflict.
26. Shri R. Venkataramani, learned senior counsel, also argued that
Schedule V is a complete Code by itself. It is not a case of reservation
at all. It is a classification made to ensure that the schools in the
scheduled areas function and promote the educational interest of the
tribal populace. The Governor took cognizance of the general nonavailability of teachers. The notification by prescribing that the
Scheduled Tribe teachers of the local areas should be the exclusive
component of the teaching element was looking at the local scheduled
tribe teacher as the best possible tool for ensuring the educational
interest of the scheduled areas. Learned senior counsel has referred to
various decisions, to be adverted later.
27. Learned senior counsel further pointed out that the scheduled
area is extended over 31,485 sq. km. which is about 11% of the total
area of the State with more than 5938 villages distributed in
Srikakulam, Vizianagaram, Visakhapatnam, East Godavari, West
19
Godavari, Khammam, Warangal, Adilabad and Mahaboobnagar
Districts. Scheduled Tribe students are at a disadvantageous position.
The nonattendance of teachers was more in the scheduled areas, so
to provide the facility of teaching, classification has been made. It
cannot be said to be a case of providing reservations. The Government
of Andhra Pradesh, Department of Tribal Welfare, has established
various categories of educational institutions to cater to the needs of
Scheduled Tribes children in the State.
28. Learned senior counsel further submitted that the Government
of Andhra Pradesh, Department of Tribal Welfare, established various
categories of educational institutions to cater to the needs of
Scheduled Tribes children in the State, such as Gurukula Pathasalas,
Ashram schools, and residential, educational institutions, and the
method of appointment of the local tribe has yielded good results.
29. Shri B. Adinarayana Rao, learned senior counsel appearing for
the State of Telangana, pointed out the history of scheduled areas
Ganjam and Vizagapatnam. The Act of 1839 declared agency areas of
Madras Presidency, providing for separate administration of
tribals/agency areas. In 1874, the Scheduled Districts Act, XIV was
passed, which had a schedule in which the territories were mentioned,
inhabited by tribals as such. Rules were issued for administering the
20
areas by the Governor GeneralinCouncil to the exclusion of ordinary
laws. The Government of India Act, 1919, had made "wholly excluded
and partially excluded areas for reform" and kept them under the
administration of Governor GeneralinCouncil, with a separate
application of laws. The Government of India Act, 1935, had extended
the same. Thus, historically, the scheduled areas were governed by
special laws. They cannot be compared with areas generally
administered by the Act of legislatures. Special provisions have been
made in Schedule V. The order issued by the Governor has to be
treated as legislation. The application of laws is one of the recognised
forms of legislation. The order of Governor can only be tested on the
parameters of competence and violation of the Constitution. It cannot
be tested on the touchstone of ideal norms. It achieves the purpose of
Article 46 of the Constitution.
30. Shri B. Adinarayana Rao, learned senior counsel, has further
argued that forests or hills separate scheduled areas from other areas.
Notified tribes inhabit them. There are some nontribals in the
scheduled areas. In spite of their stay/residence, the nontribals
cannot acquire by sale, purchase, lease, or otherwise, the lands in the
scheduled areas and legislations imposing such restrictions have been
held to be constitutional by this Court in various decisions. The tribal
customs, culture, traditions, and personal laws need to be protected
21
and preserved. They speak their dialect in their habitations. Due to
inaccessibility and lack of facilities, the teachers appointed in
scheduled areas are not attending the schools, leading to chronic
absenteeism. The experiment has resulted in fulfilling the desired
objectives. There has been a significant increase in literacy among
tribals.
There is no repugnancy with the Presidential Order issued under
Article 371D. Article 371D(10) provides for the nonobstante clause to
make the provisions immune from challenge under Articles 14 and 16
of the Constitution of India. The provisions made in Para 5 of
Schedule V have to be viewed on a similar anvil.
31. Shri Shivam Singh, learned counsel appearing on behalf of some
of the respondents, argued that the basic structure doctrine is
inapplicable, the original constitutional text must not be employed to
test the impugned action. Schedule V under Article 244(1) of the
Constitution is part of the original text. Hence, it must not be tested
on the touchstone of the basic structure violation. He argued by
referring to the decisions of this Court that the constitutional
amendments post1973 can be struck down if they violate the basic
structure doctrine and not the original text of the Constitution. The
nonobstante clause in Para 5(1) Schedule V continues to hold and
occupy the field. The rigours of the basic structure doctrine may hit
22
Article 371D but cannot affect Schedule V. Article 14 cannot be used
to defeat intendment of the nonobstante clause of Schedule V.
32. Shri Shivam Singh, learned counsel, further argued that in case
of conflict between nonobstante clauses, as far as possible, they must
be harmoniously construed. The provision enacted later prevails over
the one enacted earlier. If the latter provision is found to be generic as
against the earlier provision, then the earlier provision has to prevail.
33. Learned counsel has further canvassed that as the Governor has
the power to frame the regulations, the power extends to subordinate
legislation also. Subordinate legislation has to be treated as part of the
legislation itself. Regulations must be treated as part of the statute
itself. In the power to modify and create exceptions in exceptional
circumstances to provide a 100% reservation is permissible. There is
minimal scope for judicial review. The notification contemplated a
classification under Article 16(1) not a reservation under Article 16(4)
issued to provide impetus to scheduled areas in the field of education;
to strengthen educational infrastructure, to promote the educational
development of tribals; to prevent phenomenal absenteeism of
teachers in the schools in the scheduled areas from teaching tribals.
The conditions of eligibility and cutoff date to avail the benefit of
23
reservation are reasonable to further strengthen the educational
infrastructure development and other problems faced in the area.
In Re: Question No.1: What is the scope of Para 5(1) of Schedule V
of the Constitution of India?; and Question No.1(a): Does the
provision empower the Governor to make a new law?
34. The Fifth Schedule finds reference in Article 244 of the
Constitution of India. Article 244 deals with the administration of
scheduled areas and tribal areas. It is provided that the provisions of
Schedule V shall apply to the administration of scheduled areas.
Article 244 is extracted hereunder:
“Article 244. Administration of Scheduled Areas and Tribal
Areas.— (1) The provisions of the Fifth Schedule shall apply to
the administration and control of the Scheduled Areas and
Scheduled Tribes in any State other than the States of Assam
Meghalaya, Tripura, and Mizoram.
(2) The provisions of the Sixth Schedule shall apply to the
administration of the tribal areas in the State of Assam,
Meghalaya, Tripura and Mizoram."
35. Article 244 excludes Assam, Meghalaya, Tripura, and Mizoram
from Schedule V, and they are included as per Article 244(2) in
Schedule VI. Schedule V in extenso is extracted hereunder:
“FIFTH SCHEDULE
[Article 244(1)]
PROVISIONS AS TO THE ADMINISTRATION AND
CONTROL OF SCHEDULED AREAS AND
SCHEDULED TRIBES
PART A
GENERAL
24
“1. Interpretation.—In this Schedule, unless the context
otherwise requires, the expression ‘State’ does not include the
States of Assam, Meghalaya, Tripura, and Mizoram.
2. Executive power of a State in Scheduled Areas.— Subject
to the provisions of this Schedule, the executive power of a State
extends to the Scheduled Areas therein.
3. Report by the Governor to the President regarding the
administration of Scheduled Areas.—The Governor of each
State having Scheduled Areas therein shall annually, or
whenever so required by the President, make a report to the
President regarding the administration of the Scheduled Areas in
that State and the executive power of the Union shall extend to
the giving of directions to the State as to the administration of
the said areas.
PART B
ADMINISTRATION AND CONTROL OF SCHEDULED
AREAS AND SCHEDULED TRIBES
4. Tribes Advisory Council.—(1) There shall be established in
each State having Scheduled Areas therein and, if the President
so directs, also in any State having Scheduled Tribes but not
Scheduled Areas therein, a Tribes Advisory Council consisting of
not more than twenty members of whom, as nearly as may be,
three-fourths shall be the representatives of the Scheduled Tribes
in the Legislative Assembly of the State:
Provided that if the number of representatives of the
Scheduled Tribes in the Legislative Assembly of the State is less
than the number of seats in the Tribes Advisory Council to be
filled by such representatives, the remaining seats shall be filled
by other members of those tribes.
(2) It shall be the duty of the Tribes Advisory Council to
advise on such matters pertaining to the welfare and
advancement of the Scheduled Tribes in the State as may be
referred to them by the Governor.
(3) The Governor may make rules prescribing or regulating,
as the case may be,
(a) the number of members of the Council, the mode of their
appointment and the appointment of the Chairman of the
Council and of the officers and servants thereof;
(b) the conduct of its meetings and its procedure in general; and
(c) all other incidental matters.
5. Law applicable to Scheduled Areas.—(1) Notwithstanding
anything in this Constitution, the Governor may by public
notification direct that any particular Act of Parliament or of the
25
Legislature of the State shall not apply to a Scheduled Area or
any part thereof in the State or shall apply to a Scheduled Area or
any part thereof in the State subject to such exceptions and
modifications as he may specify in the notification and any
direction given under this sub-paragraph may be given so as to
have retrospective effect.
(2) The Governor may make regulations for the peace and
good government of any area in a State which is for the time
being a Scheduled Area.
In particular and without prejudice to the generality of the
foregoing power, such regulations may—
(a) prohibit or restrict the transfer of land by or among members
of the Scheduled Tribes in such area;
(b) regulate the allotment of land to members of the Scheduled
Tribes in such area;
(c) regulate the carrying on of business as money-lender by
persons who lend money to members of the Scheduled Tribes
in such area.
(3) In making any such regulation as is referred to in subparagraph (2) of this paragraph, the Governor may repeal or
amend any Act of Parliament or of the Legislature of the State or
any existing law which is for the time being applicable to the
area in question.
(4) All regulations made under this paragraph shall be
submitted forthwith to the President and, until assented to by
him, shall have no effect.
(5) No regulation shall be made under this paragraph unless
the Governor making the regulation has, in the case where there
is a Tribes Advisory Council for the State, consulted such
Council.
PART C
SCHEDULED AREAS
6. Scheduled Areas.—(1) In this Constitution, the expression
‘Scheduled Areas’ means such areas as the President may by
order declare to be Scheduled Areas.
(2) The President may at any time by order—
(a) direct that the whole or any specified part of a Scheduled
Area shall cease to be a Scheduled Area or a part of such
an area;
(aa) increase the area of any Scheduled Area in a State after
consultation with the Governor of that State;]
(b) alter, but only by way of rectification of boundaries, any
Scheduled Area;
(c) on any alteration of the boundaries of a State or on the
admission into the Union or the establishment of a new
26
State, declare any territory not previously included in any
State to be, or to form part of, a Scheduled Area;
(d) rescind, in relation to any State or States, any order or
orders made under this paragraph, and in consultation with
the Governor of the State concerned, make fresh orders
redefining the areas which are to be Scheduled Areas,
and any such order may contain such incidental and
consequential provisions as appear to the President to be
necessary and proper, but save as aforesaid, the order made
under sub-paragraph (1) of this paragraph shall not be varied by
any subsequent order.
PART D
AMENDMENT OF THE SCHEDULE
7. Amendment of the Schedule.—(1) Parliament may from time
to time by law amend by way of addition, variation or repeal any
of the provisions of this Schedule and, when the Schedule is so
amended, any reference to this Schedule in this Constitution
shall be construed as a reference to such Schedule as so
amended.
(2) No such law as is mentioned in sub-paragraph (1) of this
paragraph shall be deemed to be an amendment of this
Constitution for the purposes of article 368.”
36. The State can exercise executive power in scheduled areas.
However, the same is subject to the provisions of the Schedule. Para 3
of Schedule V provides for the continuous interplay between the
Governor and the President. The Governor has to send an Annual
Report or at any time whenever so required by the President. The
Governor is bound to report to the President regarding the
administration of the scheduled areas, and in the exercise of executive
power, the Union Government can issue directions to State as to the
administration of the scheduled areas.
37. The object of para 5 of Schedule V is to establish an egalitarian
society and to ensure socioeconomic empowerment to the Scheduled
27
Tribes as held in Samatha v. State of A.P. & Ors., (1997) 8 SCC 191
thus:
“71. Thus, the Fifth and Sixth Schedules, an integral scheme of
the Constitution with direction, philosophy and anxiety is to
protect the tribals from exploitation and to preserve valuable
endowment of their land for their economic empowerment to
elongate social and economic democracy with liberty, equality,
fraternity and dignity of their person in our political Bharat.”
38. Para 4 of Schedule V to the Constitution of India provides for the
formation of Tribes Advisory Council for administration and control of
the scheduled areas and scheduled tribes. Para 4(2) enables the
Advisory Council to advise on such matters pertaining to the welfare
and advancement of the scheduled tribes in the State as may be
referred to them by the Governor. The Governor has the power to
make rules, regulations as to the number of members of the Tribes
Advisory Council, the mode of their appointment, conduct of meetings,
and other incidental matters.
39. Para 5 of Schedule V deals with the law applicable to the
scheduled areas. It contains a nonobstante clause and authorises the
Governor to issue a notification to the effect that any particular Act of
the Parliament or of the State Legislature shall not apply to a
scheduled area or any part thereof. It also empowers the Governor to
create exceptions and modifications as he may specify in the
notification concerning the applicability of such Act of Parliament or
legislature of the State. The Governor is empowered to issue
28
notification giving it retrospective effect. It is apparent that the law
contained in the Act can be modified by the Governor or can be
excluded in its application from the scheduled area or any part of it.
Thereupon such Act, hence, of the Parliament or the State Legislature
can be applied with exceptions and modifications to the scheduled
area. Para 5(1) confers power upon the Governor not concerning the
only exclusion of Act of Parliament or the State but to modify or create
exceptions.
(a) Para 5(1) of Schedule V does not confer upon Governor power to
enact a law but to direct that a particular Act of Parliament or the
State Legislature shall not apply to a scheduled area or any part
thereof or shall apply with exceptions and modifications, as may be
specified in the notification. The Governor is not authorised to enact a
new Act under the provisions contained in para 5(1) of Schedule V of
the Constitution. Area reserved for the Governor under the provisions
of para 5(1) is prescribed. He cannot act beyond its purview and has to
exercise power within the four corners of the provisions.
(b) Para 5(2) of Schedule V deals with the power of the Governor to
make regulations for the peace and good government in a scheduled
area of a State. The Governor has to obtain the advice of the Tribes
Advisory Council in the matters pertaining to Para 5(2), if it has been
constituted. The Governor is expressly authorised to prohibit or
restrict the transfer of land by any member of scheduled tribes and
29
also regulate the allotment of land to the members of the Scheduled
Tribes in the Scheduled Areas. Para 5(3) provides that while making
any such regulations as mentioned in Para 5(2), the Governor has the
power to repeal or amend any Act of Parliament or the legislature of
the State or any existing law which is for the time being applicable to
the area in question, but that is for peace and good governance of the
scheduled area. The regulation made by the Governor to be effective is
required to be assented by the President. Prior assent of the President
is mandatory for regulation to be put into effect. There is a further
rider on the regulatory power of the Governor provided by Para 5(5). In
case Tribes Advisory Council has been constituted before making any
regulation, the Governor is dutybound to consult such Council. No
regulation can be made without consultation with the Council in case
it has been formed.
40. The Act of Parliament or the appropriate legislature applies to
the scheduled areas. The Governor has the power to exclude their
operation by a notification. In the absence thereof, the Acts of the
legislature shall extend to such areas. In Jatindra v. Province of Bihar,
(1949) FLJ 225, it was held that the power of the Governor under para
5 is a legislative power and Governor is empowered to change or
modify the provisions of the Act or the section as he deems fit by way
of issuing a notification. The power under para 5(1) is limited to the
30
application of the Governor's decision to apply an Act or making
modification or creating exceptions. Though the power is legislative to
some extent, that is confined to applicability, modification, or creating
exceptions concerning the Act of the Parliament or the State. While
para 5(2) confers the power of independent legislation, the Governor
has plenary power of framing regulations for the peace and good
governance of a scheduled area. He is the repository of faith to decide
as to the necessity. The Governor is empowered by para 5(3) to repeal
or amend any Act of Parliament or State Legislature, following the
procedure prescribed therein, in exercise of making regulations as
provided under para 5(2) of Schedule V. The aspect of power was
considered in Ram Kirpal Bhagat and Ors. v. The State of Bihar, (1969)
3 SCC 471 thus:
“21. The second question which falls for consideration is
whether the Bihar Regulation I of 1951 is in excess of the
Governor’s powers. The contentions were: first, that the
Regulation I of 1951 could not at all have been made; secondly,
that Regulations deal with the subject-matter and did not mean
power to apply law and thirdly, the power to extend a law passed
by another legislature was said to be not a legislative function,
but was a conditional legislature. The legislation, in the present
case, is in relation to what is described as Scheduled Areas. The
Scheduled Areas are dealt with by Article 244 of the Constitution
and the Fifth Schedule to the Constitution. Prior to the
Constitution, the excluded areas were dealt with by Sections 91
and 92 of the Government of India Act, 1935. The excluded and
the partially excluded areas were areas so declared by order in
Council under Section 91 and under Section 92. No act of the
Federal Legislature or of the Provincial Legislature was to apply
to an excluded or a partially excluded area unless the Governor
by public notification so directed. Sub-section (2) of Section 92
of the Government of India Act, 1935 conferred power on the
Governor to make regulations for the peace and good
31
government of any area in a Province which was an excluded or
a partially excluded area and any regulations so made might
repeal or amend any Act of the Federal Legislature or the
Provincial Legislature or any existing Indian law which was for
the time being applicable to the area in question. The extent of
the legislative power of the Governor under Section 92 of the
Government of India Act, 1935 in making regulations for the
peace and good government of any area conferred on the
Governor in the words of Lord Halsbury "an utmost discretion of
enactment for the attainment of the objects pointed to." (See Riel
v. Queen, LR 10 AC 657 at 658)). In that case the words which
fell for consideration by the Judicial Committee were “the power
of the Parliament of Canada to make provisions for the
administration, peace, order and good government of any
territory not for the time being included in any province”. It was
contended that if any legislation differed from the provisions
which in England had been made for the administration, peace,
order and good government then the same could not be sustained
as valid. That contention was not accepted. These words were
held to embrace the widest power to legislate for the peace and
good government for the area in question.
22. The Fifth Schedule to the Constitution consists of 7 paras and
consists of Parts A, B, C and D. Para 6 in Part C deals with
Scheduled Areas as the President may by order declare and there
is no dispute in the present case that the Santhal Parganas falls
within the Scheduled Areas. Para 5 in the Fifth Schedule deals
with laws applicable to Scheduled Areas. Sub-para 2 of para 5
enacts that the Governor may make regulations for the peace and
good government of any area in a State which is for the time
being a Scheduled Area. Under sub-para 3 of para 5, the
Governor may repeal or amend any Act of Parliament or of the
legislature of the State or any existing law which is for the time
being applicable to the area in question. It may be stated that a
contention was advanced by counsel for the appellants that
Section 92 of the Government of India Act, 1935 was still in
operation and the Governor could only act under that section.
This contention is utterly devoid of any substance because
Section 92 of the Government of India Act, 1935 ceased to exist
after repeal of the Government of India Act, 1935 by Article 395
of the Constitution. It was contended that the power to make
regulations did not confer power on the Governor to apply any
law. It was said that under Section 92 of the Government of
India Act, 1935 the Governor could do so but under the Fifth
Schedule of the Constitution the Governor is not competent to
apply laws. This argument is without any merit for the simple
reason that the power to make regulations embraces the utmost
32
power to make laws and to apply laws. Applying law to an area
is making regulations which are laws. Further the power to apply
laws is inherent when there is a power to repeal or amend any
Act, or any existing law applicable to the area in question. The
power to apply laws is really to bring into legal effect sections of
an Act as if the same Act had been enacted in its entirety.
Application of laws is one of the recognised forms of legislation.
Law can be made by referring to a statute or by citing a statute or
by incorporating a statute or provisions or parts thereof in a piece
of legislation as the law which shall apply.
23. It was said by Counsel for the appellants that the power to
apply laws under the Fifth Schedule was synonymous with
conditional legislation. In the present case, it cannot be said that
the Bihar Regulation I of 1951 is either a piece of delegated
legislation or a conditional legislation. The Governor had full
power to make regulations which are laws and just as Parliament
can enact that a piece of legislation will apply to a particular
State, similarly, the Governor under para 5 of the Fifth Schedule
can apply specified laws to a Scheduled area. The Bihar
Regulation I of 1951 is an instance of a valid piece of legislation
emanating from the legislative authority in its plenitude of power
and there is no aspect of delegated or conditional legislation.”
(emphasis supplied)
41. In Hota Venkata Surya Sivarama Sastry and Anr. v. State of
Andhra Pradesh, (1962) 2 SCR 535: AIR 1967 SC 71, the question
came up for consideration as to the power to apply the laws under
para 5(2). This Court opined that the power to repeal or amend is
legislative, and the regulations made in exercise of this power, cannot
be said to be delegated or conditional legislation. This Court held:
“(11) It was next contended that Regulation IV of 1951 was
invalid as having outstepped the limits of the legislation
permitted by Paras 5(1) and (2) of the Fifth Schedule to the
Constitution. It was said that if the Governor desired to enact a
law with retrospective effect it must be a law fashioned by
himself, but that if he applied to the Scheduled areas a law
already in force in the State, he could not do so with
retrospective effect. Reduced to simple terms, the contention
merely amounts to this that the Governor should have repeated in
33
this Regulation the terms of the Abolition Act but that if he
referred merely to the title of the Act he could not give
retrospective effect to its provisions over the area to which it was
being applied. It is obvious that this contention was correctly
negatived by the High Court.”
42. Reliance has been placed on the decision in Edwingson Bareh v.
State of Assam and Ors., (1966) 2 SCR 770 in which the validity of the
notification issued on 23.11.1964 was in question. By the
notification, the Governor of Assam was pleased to create a new
Autonomous District to be called the Jowai District by excluding the
Jowai SubDivision of the United KhasiJaintia Hills District with
effect from 1.12.1964 and altered the boundaries. The notification
was issued by the Governor in the exercise of powers conferred on him
by paragraph 1(3) of the Sixth Schedule. This Court observed:
“It cannot, however, be disputed that as a result of the
modification made by the impugned notification, paragraph
20(2) has to be changed. Paragraph 20(2), as it originally stood,
describes in detail the territories comprised in the United KhasiJaintia Hills District, and as a result of the impugned notification,
the said description will have to be modified, because the said
District has now been split up into two Autonomous District.
That, however, is a change consequent upon the change made by
the Governor by issuing the impugned notification in exercise of
the powers conferred on him by para 1(3). In our opinion, where
the Governor makes changes by virtue of the powers conferred
on him by para. 1(3) (c), (d), (e), (f) and (g), what follows is a
change in the internal composition of the different items in Part
A of the table. The exercise of the said powers does not change,
and in the present case it has not changed, the total area
comprised in Part A. What it purports to do is to change one item
into two items of Autonomous Districts. Since the power to bring
about this change is expressly conferred on the Governor by
paragraph 1(3)(c), (d), (e), (f) and (g), it is not unreasonable to
hold that the exercise of the said power should, as in the present
case, lead to a consequential change in para 20(2). Such a change
in para 20(2) is a logical corollary of the exercise of the power
34
conferred on the Governor by para 1(3)(c), (d), (e), (f) and (g).”
43. In Samatha v. State of A.P. & Ors., (1997) 8 SCC 191, this Court
held that the executive power under Article 298 and legislative power
under Article 245 to dispose of Government property are subject to
Para 5 of Schedule V. The relevant portion is extracted hereunder:
“85. It is true, as contended by Shri Choudhary, that the
Constitution has demarcated legislative, executive and judicial
powers and entrusted them to the three wings of the State; in
particular the President/Governor of the State is to exercise the
executive power in their individual discretion. It is not subject to
legislative limitations to be done in accordance with rules of
business. In particular, the President/Governor is entrusted with
the executive power coextensive with the legislative power
enumerated in the Seventh Schedule read with Article 245 of the
Constitution. The executive power especially conferred by the
Constitution like the pleasure tenure or the power of pardoning a
convict are in our view, not apposite to the issue. The power of
the executive Government in that behalf has wisely been devised
in the Constitution and is not subject to any restriction except in
accordance with the Constitution and the law made under Article
245 read with the relevant entry in the Seventh Schedule to the
Constitution subject to the Fifth Schedule when it is applied to
Scheduled Area. The power of the Government to acquire, hold
and dispose of the property and the making of contracts for any
purpose conferred by Article 298 of the Constitution equally is
coextensive with the legislative power of the Union/State.
However, Article 244(1) itself specifies that provisions of the
Fifth Schedule shall apply to the administration and control of
the Scheduled Areas and Scheduled Tribes in any State except
the excluded areas specified therein. The legislative power in
clause (1) of Article 245 equally is “subject to the provisions of
the Constitution” i.e. Fifth Schedule. Clause (1) of para 5 of Part
B of the Fifth Schedule applicable to Scheduled Areas,
adumbrates with a non obstante clause that: “Notwithstanding
anything in the Constitution, in other words, despite the power,
under Article 298, the Governor may, by public notification
direct that any particular Act of Parliament or of the legislature
of a State shall not apply to a Scheduled Area or any part thereof
in the State or shall apply to a Scheduled Area or any part thereof
in the State, subject to such exceptions and modifications as he
may specify in the notification and any direction given under
35
clause (1) of para 5, may be given so as to have retrospective
effect.” The executive power of the State is, therefore, subject to
the legislative power under clause 5(1) of the Fifth Schedule.
Similarly, sub-para (2) thereof empowers the Governor to make
Regulations for the peace and good government of any area in a
State which is for the time being a Scheduled Area. In particular
and without prejudice to the generality of the foregoing power,
such Regulations may regulate the allotment of land to members
of the Scheduled Tribes in such area or may prohibit or restrict
the transfer of land under clause (a) by or among the members of
the Scheduled Tribes in such areas. In other words sub-para 5(2)
combines both legislative as well as executive power, clause 5(2)
(a) and (c) legislative power and clause (b) combines both
legislative as well as executive power. The word “regulation” in
para 5(2)(b) is thus of wide import.”
(emphasis supplied)
In Samatha (supra), it was held that mining leases could not
have been granted to nontribals in the Scheduled Areas even
concerning land belonging to the Government. This Court in the
aforesaid decision dealt with the prohibition on the transfer of
immovable property situated in Agency tracts by a person, whether or
not such person is a member of Scheduled Tribes or a society
composed solely of the members of the Scheduled Tribes or by a
person including inter alia State Government or State Corporations.
Transfer of Government land in Agency tracts by granting mining lease
in favour of nontribal persons was null and void. In the said case,
the tribals were granted patta in their favour for cultivation purposes,
the said aspect made the entire difference, and the prohibition on
lease came in the way of nontribal, which was upheld by this Court.
The decision is to operate in a different area. This Court upheld a
36
similar restriction in Rajasthan Housing Board v. New Pink City
Nirman Sahkari Samiti Ltd. and Anr., (2015) 7 SCC 601.
44. There is no dispute with the abovesaid proposition concerning
the protection of the transfer of land. Such provisions have been
carved out, and they have been held to be constitutionally valid. More
or less, similar provisions exist virtually in all the States. In various
States, transactions that took place relating to land of Scheduled
Tribes were statutorily annulled including decree or order of the court,
and such transactions have been declared to be void with retrospective
effect and validity of the same was upheld by this Court. But the
question here is not of the protection of the land. The idea behind
protection of land is to protect tribals, as they are isolated, and in
disadvantageous position socially as compared to nontribals. Thus,
protection has been conferred.
45. In re Art. 143 of the Constitution of India and Delhi Laws Act
(1912) etc., AIR 1951 SC 332, the Court considered the word ‘modify’
to mean alteration without radical transformation in the context in
which modification was used, it did not involve any material alteration
or substantial alteration. However, in the context of Article 370(1) of
the Constitution of India in Puranlal Lakhanpal v. President of India &
Ors., AIR 1961 SC 1519, the power is given to the President to efface
37
effect of any provision of law altogether in its application to the State
of Jammu & Kashmir. The Court observed that power to modify
should be considered in its widest possible amplitude. This Court
further considered the word ‘modify’ in the Oxford English Dictionary,
Vol. VI, to mean inter alia "to make partial changes in"; to change (as
object) in respect of some of its qualities; to alter or vary without
radical transformation”. Similar is the word 'modification,' which
means the action of making changes in an object without altering
essential nature. The Court also observed that modify just means to
alter or vary, extend, or enlarge thus:
“(4) But even assuming that the introduction of indirect election
by this modification is a radical alteration of the provisions of
Art. 81(1), the question still remains whether such a modification
is justified by the word “modification” as used in Art. 370(1). We
are here dealing with the provision of a Constitution which
cannot be interpreted in any narrow or pedantic sense. The
question that came for consideration in In re Delhi Laws Act
case, 1951 SCR 747: (AIR 1951 SC 332), was with respect to
the power of delegation to a subordinate authority in making
subordinate legislation. It was in that context that the
observations were made that the intention of the law there under
consideration when it used the word “modification” was that the
Central Government would extend certain laws to Part C States
without any radical alteration in them. But in the present case we
have to find out the meaning of the word “modification” used in
Art. 370(1) in the context of the Constitution. As we have said
already the object behind enacting Art. 370(1) was to recognise
the special position of the State of Jammu and Kashmir and to
provide for that special position by giving power to the President
to apply the provisions of the Constitution to that State with such
exceptions and modifications as the President might by order
specify. We have already pointed out that the power to make
exceptions implies that the President can provide that a particular
provision of the Constitution would not apply to that State. If
therefore the power is given to the President to efface in effect
any provision of the Constitution altogether in its application to
38
the State of Jammu and Kashmir, it seems that when he is also
given the power to make modifications that power should be
considered in its widest possible amplitude. If he could efface a
particular provision of the Constitution altogether in its
application to the State of Jammu and Kashmir, we see no reason
to think that the Constitution did not intend that he should have
the power to amend a particular provision in its application to the
State of Jammu and Kashmir. It seems to us that when the
Constitution used the word “modification” in Art. 370(1) the
intention was that the President would have the power to amend
the provisions of the Constitution if he so thought fit in their
application to the State of Jammu and Kashmir. In the Oxford
English Dictionary (Vol. VI) the word “modify” means inter alia
“to make partial changes in; to change (as object) in respect of
some of its qualities; to alter or vary without radical
transformation”. Similarly the word “modification” means “the
action of making changes in an object without altering its
essential nature or character; the state of being thus changed;
partial alteration”. Stress is being placed on the meaning “to alter
or vary without radical transformation” on behalf of the
petitioner; but that is not the only meaning of the words
“modify” or “modification”. The word “modify” also means “to
make partial changes in” and “modification” means “partial
alteration”. If therefore the President changed the method of
direct election to indirect election he was in essence making a
partial change or partial alteration in Art. 81 and therefore the
modification made in the present case would be even within the
dictionary meaning of that word. But, in law, the word “modify”
has even a wider meaning. In “Words and Phrases” by Roland
Burrows, the primary meaning of the word “modify” is given as
“to limit” or “restrict” but it also means “to vary” and may even
mean to “extend” or “enlarge”. Thus in law the word “modify”
may just mean “vary” i.e. amend; and when Art. 370(1) says that
the President may apply the provisions of the Constitution to the
State of Jammu and Kashmir with such modifications as he may
by order specify it means that he may vary (i.e. amend) the
provisions of the Constitution in its application to the State of
Jammu and Kashmir. We are therefore of opinion that in the
context of the Constitution we must give the widest effect to the
meaning of the word “modification” used in Art. 370(1) and in
that sense it includes an amendment. There is no reason to limit
the word “modifications” as used in Art. 370(1) only to such
modifications as do not make any “radical transformation”. We
are therefore of opinion that the President had the power to make
the modification which he did in Art. 81 of the Constitution. The
petition therefore fails and is hereby dismissed with costs.”
39
The Governor is conferred the power to modify or create
exceptions, is not in dispute. The power is wide but is confined to the
Acts of the Parliament or the State legislature. The power of the
Governor is not only extensive but also sui generis, and as the court
has to defer to legislative wisdom in areas of social and economic
experimentation, it also defers to the wisdom of the Governor in the
exercise of his power under Para 5 of the Fifth Schedule.
46. In Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental
Action Group & Ors., (2006) 3 SCC 434, the Court referred to the
decision in Puranlal Lakhanpal (supra) and observed:
“243. Yet again in Puranlal Lakhanpal v. President of India,
(1962) 1 SCR 688, it was stated: (SCR p. 693)
“[T]he word ‘modification’ means ‘the action of making
changes in an object without altering its essential nature or
character …’.”
47. In Puranlal (supra), the Court observed that modification in
Article 370(1) must be given the widest effect in the context of the
Constitution, and in that sense, it cannot include such limitations as
do not make any radical transformation. In S.K. Gupta & Anr. v. K.P.
Jain & Anr., (1979) 3 SCC 54, the term “modification” came up for
consideration. The Court held that it would include the making of
additions and omissions. In the context of Section 392, “modification”
would mean addition to the scheme of compromise and/or
40
arrangement or omission therefrom solely to make it workable. The
court observed thus:
“26. According to the definition, "modify" and "modification"
would include the making of additions and omissions. In the
context of Section 392, "modification" would mean addition to
the scheme of compromise and/ or arrangement or omission
therefrom solely for the purpose of making it workable. Reading
Section 392 by substituting the definition of the word
"modification" in its place, if something can be omitted or
something can be added to a scheme of compromise by the Court
on its own motion or on the application of a person interested in
the affairs of the company for the proper working of the
compromise and/or arrangement, we see no justification for
cutting down its meaning by a process of interpretation and
thereby whittle down the power of the Court to deal with the
scheme of a compromise and/or arrangement for the purpose of
making it workable in course of its continued supervision as
ordained by Section 392(1)."
48. Para 5(1) of Schedule V to the Constitution confers power upon
the Governor to exclude law, which is applicable in a scheduled area.
It also empowers the Governor to apply the same with exceptions and
modifications as he deems fit. However, the power to exclude an area
from applicability, modification, and to create exceptions in the law,
which was applicable in the area, cannot be said to be at par to the
regulationmaking power conferred under para 5(2) of the said Rules.
Meaning of the expressions ‘exception’ and ‘modification’ is as follows :
“exception n. a person or thing that is excepted or that does
not follow a rule. the action or state of excepting or being
excepted.”
“modification n. the action of modifying. a change
made.”
(Source: Concise Oxford English Dictionary, 10th Edn. Revised)
41
49. The exceptions and modifications are created by the law, which
is already applicable in the area. It is not the formulation of a new law
which is contemplated under Para 5(1) of Schedule V. No new law can
be formulated while exercising power under Para 5(1) of Schedule V.
The power of modification cannot extend to rewriting the entire
statute. The power cannot be used to supplant the law, which is
applicable. The law has to be applied only with exceptions or
modifications. It cannot totally supersede the existing law, which is
wholly opposed to the idea of applicable law as in that case it would
tantamount to the new law and not the modification or exception or
creation of exceptions or modifications to the applicable law. The
object and substance of law applicable cannot be changed within the
purview of Para 5(1), though the applicability of applicable law can be
excluded. In case the Governor decides the law to remain applicable,
he has the power only to create exceptions and to modify the same,
not to create a new one juxtaposed to the same applicable law.
50. The A.P. Regulation of Reservation and Appointment to Public
Services Act, 1997, deals with reservation in the State in the field of
public services. G.O. Ms. No.3 of 2000 did not amend the said Act.
The provisions of the other Acts mentioned in the notification did not
deal with the extent of reservation. Sections 78 and 79 of the A.P.
Education Act, 1982 and Sections 169, 195, and 268 of the A.P.
42
Panchayati Raj Act, 1994, are not related to reservation. The rules
were framed under the proviso to Article 309. They were not framed
under the main provision by the legislature. The Governor in the
exercise of power under Para 5(1) of Schedule V could have amended
the Public Services Act, 1997, or direct it not to apply to Scheduled
Areas. The creation of 100 per cent reservation had the effect of
making a new law under Para 5(1) without reference to the Act of State
or Central legislation. Independently of that power could not be
exercised within the purview of Para 5(1) of Schedule V to the
Constitution of India. Even otherwise, even if the Act of 1997 would
have been modified by the Governor, 100% reservation could not have
been provided.
51. We are of the opinion that the Governor's power to make new law
is not available in view of the clear language of Para 5(1), Fifth
Schedule does not recognise or confer such power, but only power is
not to apply the law or to apply it with exceptions or modifications.
Thus, notification is ultra vires to Para 5(1) of Schedule V of the
Constitution.
In Re: Question No.1(b): Does the power extend to subordinate
legislation?
52. G.O. Ms. No.3/2000 refers to various provisions and Sections 78
and 79 of the A.P. Education Act, 1982. There is also reference to
43
sections 169, 195, and 268 of the A.P. Panchayat Raj Act, 1994. None
of the aforesaid provisions deals with reservation of posts. The third
reference is about the A.P. State and Subordinate Service Rules, 1996,
which were framed in exercise of the powers conferred by the proviso
of Article 309 of the Constitution of India. Rule 22 of A.P. State and
Subordinate Services Rules, 1996, deals with reservation. The rules
have been framed under proviso to Article 309 of the Constitution.
53. The Andhra Pradesh Regulation of Reservation and Appointment
to Public Services Act, 1997, was enacted to provide reservations. It
mandates to ensure that reservation provided under Rule 22 is
followed scrupulously, and the provisions made in the rules are not
violated. In the A.P. Regulation of Reservation and Appointment Act,
the percentage of reservation has not been provided to respective
Scheduled Castes, Scheduled Tribes and Backward classes.
54. Rules 22 and 22A, which provide for reservation for Scheduled
Castes, Scheduled Tribes, backward classes and women have been
framed under the proviso to Article 309 of the Constitution of India.
They are not to partake with an Act of Parliament or State legislature.
In substance, Rules 22 and 22A framed under Article 309 have
been amended, which could not have been done as that is not the Act
of the Parliament or the legislature of the State. Thus, the Governor
44
could not have exercised power concerning rule framed under the
proviso to Article 309 of the Constitution.
55. In B.S. Yadav & Ors. v. State of Haryana & Ors., AIR 1981 SC
561, this Court held that the rule made by the Governor under the
proviso is also the law but, at the same time, it cannot be said in view
of the aforesaid decision that the Parliament or the State legislature
made the rules under the proviso to Article 309 of the Constitution.
56. Learned counsel on behalf of the State argued that Para 5(1) of
Schedule V empowers the Governor to make laws, and it is a
legislative function, and any order of the Governor shall be treated as
legislation. The impugned order shall have to be treated as legislation
and can only be tested on the parameters of competence and violation
of the Constitution. It cannot be tested on the touchstone of ideal
norms. Reliance has been placed on Natural Resources Allocation, In
re, Special Reference No.1 of 2012, (2012) 10 SCC 1 in which the Court
opined:
“112. Equality, therefore, cannot be limited to mean only
auction, without testing it in every scenario. In State of W.B. v.
Anwar Ali Sarkar, AIR 1952 SC 75, this Court, quoting from
Kotch v. River Port Pilot Commissioners, 91 L Ed 1093: 330 US
552 (1947) had held that: (Anwar Ali Sarkar case, AIR 1952 SC
75, AIR p. 80, para 10)
“10. … ‘The constitutional command for a State to
afford equal protection of the laws sets a goal not attainable
by the invention and application of a precise formula. This
Court has never attempted that impossible task.’”
45
One cannot test the validity of a law with reference to the
essential elements of ideal democracy, actually incorporated in
the Constitution. (See Indira Nehru Gandhi v. Raj Narain, 1975
Supp SCC 1) The courts are not at liberty to declare a statute
void, because in their opinion, it is opposed to the spirit of the
Constitution. The courts cannot declare a limitation or
constitutional requirement under the notion of having discovered
some ideal norm. Further, a constitutional principle must not be
limited to a precise formula but ought to be an abstract principle
applied to precise situations. The repercussion of holding auction
as a constitutional mandate would be the voiding of every action
that deviates from it, including social endeavours, welfare
schemes and promotional policies, even though CPIL itself has
argued against the same, and asked for making auction
mandatory only in the alienation of scarce natural resources
meant for private and commercial business ventures. It would be
odd to derive auction as a constitutional principle only for a
limited set of situations from the wide and generic declaration of
Article 14. The strength of constitutional adjudication lies in case
to case adjudication and therefore auction cannot be elevated to a
constitutional mandate."
The submission that the order of the Governor shall be treated
as legislation and has to be tested like legislation cannot be disputed.
However, when it comes to modification or exception, concerning the
Act of Parliament or the State legislature, we cannot add subordinate
legislation in the ken of Para 5(1). The Governor can make a decision
not to apply Parliamentary law or State law to scheduled areas and
modify such law.
57. The rules framed under the proviso to Article 309 of the
Constitution cannot be said to be the Act of Parliament or State
legislature. Though the rules have the statutory force, they cannot be
said to have been framed under any Act of Parliament or State
legislature. The rules remain in force till such time the legislature
46
exercises power. The power of the Governor under Para 5(1) of
Schedule V of the Constitution is restricted to modifying or not to
apply, Acts of the Parliament or legislature of the State. Thus, the
rules could not have been amended in the exercise of the powers
conferred under Para 5(1) of Schedule V. The rules made under
proviso to Article 309 of the Constitution cannot be said to be an
enactment by the State legislature. Thus, in our opinion, it was not
open to the Governor to issue the impugned G.O. No.3/2000.
In re: Question No.1(c): Can the exercise of the power conferred in
Para 5 of the Fifth Schedule override fundamental rights
guaranteed under Part III?
58. Manifold arguments are made in this regard. Firstly, it was
argued on behalf of the respondents that the basic structure doctrine
is inapplicable upon the Constitution's original text. It must not be
employed to test the validity of the impugned action. The fifth
Schedule under Article 244(1) of the Constitution is part of the original
text, and hence, it must not be tested under the Basic Structure
Doctrine. Reliance has been placed on Kesavananda Bharti v. State of
Kerala, (1973) 4 SCC 225 in which this Court laid down that
Constitutional amendments post1973 can be struck down if they
violate the Basic Structure Doctrine.
59. Reliance has also been placed on Waman Rao and Ors. v. Union
of India and Ors., (1981) 2 SCC 362, in which this Court opined thus:
47
“49. We propose to draw a line, treating the decision in Kesvananda
Bharati, (1973) 4 SCC 225, as the landmark. Several Acts were put in
the Ninth Schedule prior to that decision on the supposition that the
power of Parliament to amend the Constitution was wide and
untrammelled. The theory that the Parliament cannot exercise its
amending power to damage or destroy the basic structure of the
Constitution was propounded and accepted for the first time in
Kesavananda Bharati, (1973) 4 SCC 225, is one reason for upholding
the laws incorporated into the Ninth Schedule before April 24, 1973,
on which date the judgment in Kesavananda Bharati, (1973) 4 SCC
225, was rendered. A large number of properties must have changed
hands, and several new titles must have come into existence on the
faith and belief that the laws included in the Ninth Schedule were not
open to challenge on the ground that they were violative of Articles
14, 19 and 31. We would not be justified in upsetting settled claims
and titles and in introducing chaos and confusion into the lawful
affairs of a fairly orderly society.
50. The second reason for drawing a line at a convenient and relevant
point of time is that the first 66 items in the Ninth Schedule, which
were inserted prior to the decision in Kesavananda Bharati, (1973) 4
SCC 225, mostly pertain to laws of agrarian reforms. There are a few
exceptions amongst those 66 items, like Items 17, 18, 19, which relate
to Insurance, Railways and Industries. But almost all other items
would fall within the purview of Article 31-A(1)(a). In fact, Items 65
and 66, which were inserted by the 29th Amendment, are the Kerala
Land Reforms (Amendment) Acts of 1969 and 1971 respectively,
which were specifically challenged in Kesavananda Bharati, (1973) 4
SCC 225. That challenge was repelled.
51. Thus, insofar as the validity of Article 31-B read with the Ninth
Schedule is concerned, we hold that all Acts and Regulations included
in the Ninth Schedule prior to April 24, 1973 will receive the full
protection of Article 31-B. Those laws and regulations will not be
open to challenge on the ground that they are inconsistent with or take
away or abridge any of the rights conferred by any of the provisions of
Part III of the Constitution. Acts and Regulations, which are or will be
included in the Ninth Schedule on or after April 24, 1973 will not
receive the protection of Article 31-B for the plain reason that in the
face of the judgment in Kesavananda Bharati, (1973) 4 SCC 225,
there was no justification for making additions to the Ninth Schedule
with a view to conferring a blanket protection on the laws included
therein. The various constitutional amendments, by which additions
were made to the Ninth Schedule on or after April 24, 1973, will be
valid only if they do not damage or destroy the basic structure of the
Constitution.”
(emphasis supplied)
48
60. Reliance has also been placed on the decision of this Court in
I.R. Coelho (Dead) by LRs. v. State of T.N., (2007) 2 SCC 1, decided by a
nineJudge Bench of this Court thus:
“151. The effect of the application of the limitation of the basic
structure to a scheduled Act is that Article 31-B read with the Ninth
Schedule is no longer not subject to judicial review. Judicial review is,
therefore, very much present.”
Thus, it was urged that since the original text of the Constitution
is contained in the Fifth Schedule, it would not be permissible to test
the same in terms of the basic structure. Article 14 is the part of the
basic structure; therefore, it cannot be used to dilute the nonobstante
clause of Para 5(1) of Fifth Schedule, and action taken thereunder
cannot be tested on the anvil of violation of fundamental rights.
61. In our opinion, the submission based on Basic Structure
Doctrine is not at all germane to the instant case to decide the validity
of the provisions contained in Para 5 of Fifth Schedule of the
Constitution or validity of any other Constitutional amendment. We
are deciding the validity of the action of the Governor issuing
impugned notification, providing 100 per cent reservation to
Scheduled Tribes in the Scheduled Areas. Every action of the
legislature, whether it is Parliament or State, has to conform with the
rights guaranteed in Part III of the Constitution. The original scheme
of the Constitution itself so provides; thus, the argument based upon
49
Basic Structure Doctrine does not hold the validity of the notification
as that action is taken under the provisions, and the provisions in
Para 5 Schedule V do not override the rights guaranteed in Part III of
the Constitution. The limitations on the legislature in the field of
legislation are applicable to Governor also.
62. It was next argued that there is absolute discretion with the
Governor to make modification and exception as to the applicability of
laws; however, absolute discretion cannot be said to be exercisable
arbitrarily. The Constitution has not conferred any arbitrary power
on any constitutional functionary. Arbitrariness is an antithesis to
the concept of equality, which is enshrined in Article 14 of the
Constitution, and the same is its spirit and soul.
63. The provisions of the Constitution are required to be interpreted
keeping in view the will of the makers thereof as held in S.R.
Chaudhuri v. State of Punjab & Ors., (2001) 7 SCC 126 thus:
“33. Constitutional provisions are required to be understood and
interpreted with an object-oriented approach. A Constitution
must not be construed in a narrow and pedantic sense. The words
used may be general in terms but, their full import and true
meaning have to be appreciated considering the true context in
which the same are used and the purpose which they seek to
achieve. Debates in the Constituent Assembly referred to in an
earlier part of this judgment clearly indicate that a non-member's
inclusion in the Cabinet was considered to be a “privilege” that
extends only for six months, during which period the member
must get elected, otherwise he would cease to be a Minister. It is
a settled position that debates in the Constituent Assembly may
be relied upon as an aid to interpret a constitutional provision
50
because it is the function of the court to find out the intention of
the framers of the Constitution. We must remember that a
Constitution is not just a document in solemn form, but a living
framework for the Government of the people exhibiting a
sufficient degree of cohesion and its successful working depends
upon the democratic spirit underlying it being respected in letter
and in spirit. The debates clearly indicate the “privilege” to
extend “only” for six months.”
64. The very concept of equality, which is sought to be achieved by
protective discrimination, is not just a matter of classification but also
aims against arbitrariness. Equality is the antithesis of arbitrariness.
In Col. A.S. Iyer and Ors. v. V. Balasubramanyam, (1980) 1 SCC 634,
the Court as to the doctrine of classification observed:
“57. x x x This tendency, in an elitist society with a diehard
caste mentality, is a disservice to our founding faith, even if
judicially sanctified. Subba Rao, J., hit the nail on the head when
he cautioned in Lachhman Das v. State of Punjab, (1963) 2 SCR
353, 395: AIR 1963 SC 222:
“The doctrine of classification is only a subsidiary rule
evolved by courts to give a practical content to the said
doctrine. Over-emphasis on the doctrine of classification or
an anxious and sustained attempt to discover some basis for
classification may gradually and imperceptibly deprive the
article of its glorious content. That process would
inevitably end in substituting the doctrine of classification
for the doctrine of equality; the fundamental right to
equality before the law and the equal protection of the laws
may be replaced by the doctrine of classification.”
65. In Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors.,
(1981) 1 SCC 722, the Court considered the doctrine of classification.
The classification is not only to be reasonable; it must satisfy the
requisite conditions. Whenever there is arbitrariness in State action,
whether it be of the legislature or the executive or authority under
51
Article 12, the provisions of Article 14 immediately springs into action
to strike down such an action. The Court held:
"16. If the Society is an ‘authority’ and therefore ‘State’ within
the meaning of Article 12, it must follow that it is subject to the
constitutional obligation under Article 14. The true scope and
ambit of Article 14 have been the subject-matter of numerous
decisions, and it is not necessary to make any detailed reference
to them. It is sufficient to state that the content and reach of
Article 14 must not be confused with the doctrine of
classification. Unfortunately, in the early stages of the evolution
of our constitutional law, Article 14 came to be identified with
the doctrine of classification because the view was taken was
that that article forbids discrimination and there would be no
discrimination where the classification making the differentia
fulfils two conditions, namely, (i) that the classification is
founded on an intelligible differentia which distinguishes persons
or things that are grouped together from others left out of the
group; and (ii) that that differentia has a rational relation to the
object sought to be achieved by the impugned legislative or
executive action. It was for the first time in E.P. Royappa v. State
of Tamil Nadu, (1974) 2 SCR 348: (1974) 4 SCC 3, that this
Court laid bare a new dimension of Article 14 and pointed out
that that article has highly activist magnitude and it embodies a
guarantee against arbitrariness. This Court speaking through one
of us (Bhagwati, J.) said: SCC p. 38: SCC (L&S) p. 200, para
85]
“The basic principle which, therefore, informs both Articles
14 and 16 is equality and inhibition against discrimination.
Now, what is the content and reach of this great equalising
principle? It is a founding faith, to use the words of Bose,
J., ‘a way of life’, and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot
countenance any attempt to truncate its all-embracing scope
and meaning, for to do so would be to violate its activist
magnitude. Equality is a dynamic concept with many
aspects and dimensions and it cannot be “cribbed, cabined
and confined” within traditional and doctrinaire limits.
From a positivistic point of view, equality is antithetic to
arbitrariness. In fact, equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary it is implicit in it that it is unequal
both according to political logic and constitutional law and
is therefore violative of Article 14, and if it affects any
matter relating to public employment, it is also violative of
52
Article 16. Articles 14 and 16 strike at arbitrariness in State
action and ensure fairness and equality of treatment.”
This vital and dynamic aspect which was till then lying latent
and submerged in the few simple but pregnant words of Article
14 was explored and brought to light in Royappa case, (1974) 2
SCR 348: (1974) 4 SCC 3, and it was reaffirmed and elaborated
by this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC
248, where this Court again speaking through one of us
(Bhagwati, J.) observed: (SCC pp. 283-84, para 7)
“Now the question immediately arises as to what is
the requirement of Article 14: What is the content and reach
of the great equalising principle enunciated in this Article?
There can be no doubt that it is a founding faith of the
Constitution. It is indeed the pillar on which rests securely
the foundation of our democratic republic. And, therefore,
it must not be subjected to a narrow, pedantic or
lexicographic approach. No attempt should be made to
truncate its all-embracing scope and meaning, for to do so
would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire
limits.... Article 14 strikes at arbitrariness in State action
and ensures fairness and equality of treatment. The
principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding
omnipresence.”
This was again reiterated by this Court in International Airport
Authority case, (1979) 3 SCC 489, at p. 1042 (SCC p. 511) of
the Report. It must therefore now be taken to be well settled that
what Article 14 strikes at is arbitrariness because an action that is
arbitrary must necessarily involve negation of equality. The
doctrine of classification which is evolved by the courts is not
paraphrase of Article 14 nor is it the objective and end of that
article. It is merely a judicial formula for determining whether
the legislative or executive action in question is arbitrary and
therefore constituting denial of equality. If the classification is
not reasonable and does not satisfy the two conditions referred to
above, the impugned legislative or executive action would
plainly be arbitrary and the guarantee of equality under Article
14 would be breached. Wherever therefore there is arbitrariness
in State action whether it be of the legislature or of the executive
or of an “authority” under Article 12, Article 14 immediately
springs into action and strikes down such State action. In fact,
the concept of reasonableness and non-arbitrariness pervades the
entire constitutional scheme and is a golden thread which runs
through the whole of the fabric of the Constitution.”
53
66. In E.P. Royappa v. State of Tamil Nadu & Anr., (1974) 4 SCC 3,
concerning the concept of equality and arbitrariness in action, in the
context of Articles 14 and 16, the Court held:
“85. The last two grounds of challenge may be taken up together
for consideration. Though we have formulated the third ground
of challenge as a distinct and separate ground, it is really in
substance and effect merely an aspect of the second ground
based on violation of Articles 14 and 16. Article 16 embodies the
fundamental guarantee that there shall be equality of opportunity
for all citizens in matters relating to employment or appointment
to any office under the State. Though enacted as a distinct and
independent fundamental right because of its great importance as
a principle ensuring equality of opportunity in public
employment which is so vital to the building up of the new
classless egalitarian society envisaged in the Constitution, Article
16 is only an instance of the application of the concept of
equality enshrined in Article 14. In other words, Article 14 is the
genus while Article 16 is a species. Article 16 gives effect to the
doctrine of equality in all matters relating to public employment.
The basic principle which, therefore, informs both Articles 14
and 16 is equality and inhibition against discrimination. Now,
what is the content and reach of this great equalising principle? It
is a founding faith, to use the words of Bose. J., “a way of life”,
and it must not be subjected to a narrow pedantic or
lexicographic approach. We cannot countenance any attempt to
truncate its all-embracing scope and meaning, for to do so would
be to violate its activist magnitude. Equality is a dynamic
concept with many aspects and dimensions and it cannot be
“cribbed, cabined and confined” within traditional and
doctrinaire limits. From a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is
therefore violative of Article 14, and if it effects any matter
relating to public employment, it is also violative of Article 16.
Articles 14 and 16 strike at arbitrariness in State action and
ensure fairness and equality of treatment. They require that State
action must be based on valid relevant principles applicable alike
54
to all similarly situate and it must not be guided by any
extraneous or irrelevant considerations because that would be
denial of equality. Where the operative reason for State action, as
distinguished from motive inducing from the antechamber of the
mind, is not legitimate and relevant but is extraneous and outside
the area of permissible considerations, it would amount to mala
fide exercise of power and that is hit by Articles 14 and 16. Mala
fide exercise of power and arbitrariness are different lethal
radiations emanating from the same vice: in fact the latter
comprehends the former. Both are inhibited by Articles 14 and
16.”
67. In Maneka Gandhi v. Union of India & Anr., (1978) 1 SCC 248,
this Court held that fundamental rights are not distinct and mutually
exclusive rights. Each freedom has its dimensions. The law is not freed
from the necessity to meet the challenge of another guaranteed
freedom. Thus, the law effecting personal liberty under Article 21 will
also have to satisfy the test under Articles 14 and 19. In majority
opinion, Beg, J. observed:
“202. Articles dealing with different fundamental rights
contained in Part III of the Constitution do not represent entirely
separate streams of rights which do not mingle at many points.
They are all parts of an integrated scheme in the Constitution.
Their waters must mix to constitute that grand flow of
unimpeded and impartial Justice (social, economic and political),
Freedom (not only of thought, expression, belief, faith and
worship, but also of association, movement, vocation or
occupation as well as of acquisition and possession of reasonable
property), of Equality (of status and of opportunity, which imply
absence of unreasonable or unfair discrimination between
individuals, groups, and classes) and of Fraternity (assuring
dignity of the individual and the unity of the nation), which our
Constitution visualises. Isolation of various aspects of human
freedom, for purposes of their protection, is neither realistic nor
beneficial but would defeat the very objects of such protection.”
Justices Bhagwati, Untwalia and Fazal Ali observed:
“The nature and requirement of the procedure under Article 21
55
7. Now, the question immediately arises as to what is the
requirement of Article 14 : what is the content and reach of the
great equalising principle enunciated in this article? There can be
no doubt that it is a founding faith of the Constitution. It is
indeed the pillar on which rests securely the foundation of our
democratic republic. And, therefore, it must not be subjected to a
narrow, pedantic or lexicographic approach. No attempt should
be made to truncate its all-embracing scope and meaning, for to
do so would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it
cannot be imprisoned within traditional and doctrinaire limits.
We must reiterate here what was pointed out by the majority in
E.P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348, namely,
that “from a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic, while the
other, to the whim and caprice of an absolute monarch. Where an
act is arbitrary, it is implicit in it that it is unequal both according
to political logic and constitutional law and is therefore violative
of Article 14”. Article 14 strikes at arbitrariness in State action
and ensures fairness and equality of treatment...The principle of
reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence and the procedure
contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It
must be “right and just and fair” and not arbitrary, fanciful or
oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied.”
Krishna Iyer, J. observed:
“96. A thorny problem debated recurrently at the bar, turning on
Article 19, demands some juristic response although avoidance
of overlap persuades me to drop all other questions canvassed
before us. The Gopalan verdict, with the cocooning of Article 22
into a self-contained code, has suffered suppression at the hands
of R.C. Cooper, (1970) 3 SCR 530. By way of aside, the
fluctuating fortunes of fundamental rights, when the proletarist
and the proprietarist have asserted them in Court, partially
provoke sociological research and hesitantly project the Cardozo
thesis of sub-conscious forces in judicial noesis when the
cycloramic review starts from Gopalan, moves on to In re Kerala
Education Bill, 1959 SCR 995 and then on to All-India Bank
Employees’ Association, (1962) 3 SCR 269, next to Sakal
Papers, (1962) 3 SCR 842, crowning in Cooper and followed by
Bennett Coleman, (1973) 2 SCR 757 and Shambhu Nath Sarkar,
56
(1973) 1 SCC 856. Be that as it may, the law is now settled, as I
apprehend it, that no article in Part III is an island but part of a
continent and the conspectus of the whole part gives the
direction and correction needed for interpretation of these basic
provisions. Man is not dissectible into separate limbs and,
likewise, cardinal rights in an organic constitution, which make
man human have a synthesis. The proposition is indubitable that
Article 21 does not, in a given situation, exclude Article 19 if
both rights are breached."
68. In Neelima Misra v. Harinder Kaur Paintal & Ors., (1990) 2 SCC
746, this Court held that an administrative action, whether legislative,
administrative or quasijudicial must not be illegal, irrational or
arbitrary. The nonobstante clause as to what it excludes is to be
considered only in light of extent of power conferred on the Governor
to issue a notification, to order that Act of the legislature shall not
apply and may make exceptions and modifications. However, at the
same time power is to be exercised within bounds of legislative power
conferred on the legislature. The special control is conferred upon the
Governor to direct that any Act shall not apply, which could not
otherwise apply or be applicable in the area without such exceptions
or modifications as ordered by the Governor.
Effect of the nonobstante clause:
69. Para 5(1) of the Fifth Schedule of the Constitution starts with a
nonobstante clause. What is the effect of the nonobstante clause visàvis the applicability to other provisions of the Constitution? Whether
the provisions of Para 5(1) prevail over all other provisions of the
57
Constitution? Whether the fundamental rights in Part III of the
Constitution are inapplicable and need not be satisfied?
70. The provision of the Fifth Schedule beginning with the words
“notwithstanding anything in this Constitution” cannot be construed
as taking away the provision outside the limitations on the amending
power and has to be harmoniously construed consistent with the
foundational principles and the basic features of the Constitution.
71. In R.C. Poudyal v. Union of India & Ors., 1994 Supp. (1) SCC
324, this Court considered the question whether the nonobstante
clause (f) to Article 371F inserted by the Constitution (36th
Amendment) Act, 1975 containing a special provision for the State of
Sikkim. The Governor of Sikkim has exclusive responsibility for peace
and equitable arrangement, for social and economic advancement and
various other provisions have been made that the nonobstante clause
is contained in Article 371F, cannot be construed as taking clause (f)
of Article 371F outside the limitation on the amendment power itself.
This Court opined that:
"102. It is, however, urged that Article 371-F starts with a nonobstante clause, and therefore the other provisions of the
Constitution do not limit the power to impose conditions. But
Article 371-F cannot transgress the basic features of the
Constitution. The non-obstante clause cannot be construed as
taking clause (f) of Article 371-F outside the limitations on the
amendment power itself. The provisions of clause (f) of Article
371-F and Article 2 have to be construed harmoniously
consistent with the foundational principles and basic features of
58
the Constitution. Whether clause (f) has the effect of destroying a
basic feature of the Constitution depends, in turn, on the question
whether reservation of seats in the legislature based on ethnic
group is itself destructive of democratic principle. Whatever the
merits of the contentions be, it cannot be said that the issues
raised are non-justiciable.
103. In Mangal Singh v. Union of India, (1967) 2 SCR 109, 112
this Court said:
“Power with which the Parliament is invested by Articles 2
and 3, is power to admit, establish, or from new States
which conform to the democratic pattern envisaged by the
Constitution; and the power which the Parliament may
exercise by law is supplemental, incidental or consequential
to the admission, establishment or formation of a State as
contemplated by the Constitution, and is not power to
override the constitutional scheme.”
104. Even if clause (f) of Article 371-F is valid, if the terms and
conditions stipulated in a law made under Article 2 read with
clause (f) of Article 371-F go beyond the constitutionally
permissible latitudes, that law can be questioned as to its validity.
The contention that the vires of the provisions and effects of such
a law are non-justiciable cannot be accepted.”
72. In State of Sikkim v. Surendra Prasad Sharma & Ors., (1994) 5
SCC 282, this Court held that the laws, which were in force before the
commencement of the Constitution of India, must be consistent with
Part III of the Constitution to continue to be in force.
This Court opined:
“11. From the above constitutional scheme what emerges is that
the laws which were in force in the territory of India
immediately before the commencement of the Constitution shall
continue in force therein until altered, repealed or amended by a
competent legislature or authority except to the extent
inconsistent with Part III of the Constitution. However,
notwithstanding anything in the Constitution, Parliament was
empowered to make laws inter alia with respect to any matter
referred to in Article 16(3). Thus, Parliament could prescribe by
law the requirement as to residence within a State or Union
Territory and if such a law is made nothing in Article 16 will
59
stand in the way of such prescription. Since Article 16(3) is in
Part III of the Constitution, the law, if made, would clearly be
intra vires the Constitution. By virtue of Article 35(b) any law in
force immediately before the commencement of the Constitution
in relation to any matter in Article 16(3) shall continue in force,
notwithstanding anything in the Constitution. The expression
‘law in force’ has the meaning assigned to it in Article 372,
Explanation I. This is the conjoint effect of Articles 13, 16(3),
35(b) and 372 of the Constitution. Since Sikkim was never a part
of the territory of India immediately before the commencement
of the Constitution, the High Court has ruled out the applicability
of the said provisions in this case. Article 2 provides that
Parliament may by law admit into the Union, or establish, new
States on such terms and conditions as it thinks fit. The law so
made must conform to the requirements of Article 13. That is the
view expressed in Poudyal case, 1944 Supp (1) SCC 324. But
the historical events preceding its inclusion in the territory of
India must be borne in mind. Sikkim during the British period
was ruled by a monarch called the Chogyal. After India became
free there was a popular demand from the people of Sikkim for
its merger with India. Pursuant to the sentiments expressed by
the People of Sikkim, a treaty was entered into between India
and the Chogyal short of merger which was followed up by
consequential changes. However, the public demand became
violent forcing the Chogyal to request the Union Government to
assume the responsibility for good Government. Ultimately, on
8-5-1973, a formal agreement was signed between the Chogyal
and the political leaders of Sikkim on the one side and the
Government of India on the other in pursuance whereto the
people of Sikkim were to enjoy certain democratic rights. This
development would show that Sikkim which was a British
protectorate under the British paramountcy until 1947 came
within the protectorate of India under the treaty of 3-12-1950 and
later became an associate State by the insertion of Article 2-A in
the Constitution by the 35th Amendment on the terms and
conditions set out in the Tenth Schedule and soon thereafter by
the 36th Amendment Article 2-A was deleted and full statehood
under the Union of India was conferred on the terms and
conditions incorporated in the newly added Article 371-F. These
constitutional changes had to be introduced in 1975 in
reciprocation of the understanding on which Sikkim agreed to its
merger with India and to fulfil the aspirations of the Sikkimese
people. The terms and conditions for merger of Sikkim found in
Article 371-F have, therefore, to be viewed in this background.”
60
73. However, under the special agreement special provisions
contained in Article 371F(k), all laws in force in the State of Sikkim
were protected until amended or repealed to ensure a smooth
transition from Chogyal’s rule to democratic rules under the
Constitution. Article 371F(l) enshrines that many of such existing
laws may be inconsistent with the Constitution, as such immunity
was granted in the transitional period, this Court in State of Sikkim v.
Surendra Prasad Sharma (supra) considered nonobstante clause in
Article 371F and observed that the laws in force would have had to
meet the test of Article 13 of the Constitution. It was held:
"22. Article 371-F, is as stated earlier, a special constitutional
provision concerning the State of Sikkim. The reason why it
begins with a non obstante clause is that the matters referred to
in the various clauses immediately following required a
protective cover so that such matters are not struck down as
unconstitutional because they do not satisfy the constitutional
requirement. Unless such immunity was granted, 'the laws in
force' would have had to meet the test of Article 13 of the
Constitution. Same being the objective, existing laws or laws in
force came to be protected by clause (k) added to Article 371-F.
The said laws in force in the State of Sikkim were, therefore,
protected, until amended or repealed, to ensure a smooth
transition from the Chogyal’s rule to the democratic rule under
the Constitution. Inherent in clause (l) is the assumption that
many of such existing laws may be inconsistent with the
Constitution and, therefore, the President came to be conferred
with a special power to make adaptations and modifications with
a view to making the said rule consistent with the Constitution.
Of course, this power had to be exercised within two years from
the appointed day. If any adaptation or modification is made in
the law in force prevailing prior to the appointed day, the law
would apply subject to such adaptation and modification. It is
thus obvious that the adaptation and modification made by the
President in exercise of this special power does not have the
effect of the law ceasing to be a law in force within the meaning
of clause (k) of Article 371-F. Therefore, on the plain language
61
of the said provision it is difficult to hold that the effect of
adaptation or modification is to take the law out of the purview
of ‘laws in force’.”
74. The nonobstante clause contained in Para 5(1) of the Fifth
Schedule of the Constitution means the Governor can exercise power
in spite of the provisions contained in Article 245 of the Constitution,
conferring the power upon Parliament to make laws and the
legislature of the State. The Parliament has the power to enact the law.
It cannot be questioned on the ground that it would have extraterritorial operation.
75. The nonobstante clause has also been considered in Smt.
Parayankandiyal Eravath Kanapravan Kalliani Amma & Ors. v. K. Devi
& Ors., AIR 1996 SC 1963. The scope has to be considered in the
context and purpose for which it has been carved out.
76. In Peerless General Finance and Investment Co. Ld. And Anr. v.
Reserve Bank of India, (1992) 2 SCC 343, the Court held that the
court has to make every endeavour to ensure that the efficacy of
fundamental rights is maintained and the legislature is not invested
with unlimited power. The Court is to guard against the gradual
encroachment and strike down a restriction as soon as it reaches that
magnitude of total infringement of the right. The Court observed:
“48. x x x The State can regulate the exercise of the
fundamental right to save the public from a substantive evil. The
existence of the evil as well as the means adopted to check it are
62
the matters for the legislative judgment. But the Court is entitled
to consider whether the degree and mode of the regulation is in
excess of the requirement or is imposed in an arbitrary manner.
The Court has to see whether the measure adopted is relevant or
appropriate to the power exercised by the authority or whether it
overstepped the limits of social legislation. Smaller inroads may
lead to larger inroads and ultimately result in total prohibition by
indirect method. If it directly transgresses or substantially and
inevitably affects the fundamental right, it becomes
unconstitutional, but not where the impact is only remotely
possible or incidental. The Court must lift the veil of the form
and appearance to discover the true character and the nature of
the legislation, and every endeavour should be made to have the
efficacy of fundamental right maintained and the legislature is
not invested with unbounded power. The Court has, therefore,
always to guard against the gradual encroachments and strike
down a restriction as soon as it reaches that magnitude of total
annihilation of the right.”
77. In case the argument raised on behalf of the respondent is
accepted that the Governor has unfettered power, notwithstanding the
provisions contained in Part III of the Constitution, Article 13 of the
Constitution becomes redundant. The power of judicial review of court
and legislature would loom into insignificance. There is no power to
the legislature or to the Governor to act contrary to the constitutional
provisions, and they cannot enact a law in derogation to the provisions
contained in Part III of the Constitution. In Chandavarkar S. R. Rao v.
Ashalata S. Guram, (1986) 4 SCC 447, it has been held that the effect
of the nonobstante clause is that in spite of the provisions of the Act
or any other Act mentioned in the nonobstante clause or any contract
or document mentioned, the enactment following it will have its full
operation or that the provision vested in the nonobstante clause
63
would not be an impediment for the operation of the enactment. In
case Governor decides not to apply the Act of the Parliament or
legislature of the State or apply them with exceptions and
modifications, he is empowered to do so. But it would be subject to the
restriction on the very legislative power with which the Parliament or
legislature of State suffers from the aboveavowed objective devised by
the framers of the Constitution.
78. The power is conferred on the Governor to deal with the
scheduled areas. It is not meant to prevail over the Constitution. The
power of the Governor is pari passu with the legislative power of
Parliament and the State. The legislative power can be exercised by
the Parliament or the State subject to the provisions of Part III of the
Constitution. In our considered opinion, the power of the Governor
does not supersede the fundamental rights under Part III of the
Constitution. It has to be exercised subject to Part III and other
provisions of the Constitution. When Para 5 of the Fifth Schedule
confers power on the Governor, it is not meant to be conferral of
arbitrary power. The Constitution can never aim to confer any
arbitrary power on the constitutional authorities. They are to be
exercised in a rational manner keeping in view the objectives of the
Constitution. The powers are not in derogation but the furtherance of
the constitutional aims and objectives.
64
In Re: Question No.1(d): Whether the exercise of power under the
Fifth Schedule of the Constitution overrides any parallel exercise
of power by the President under Article 371D?
79. It was argued on behalf of the appellants that Article 371D was
promulgated in view of geographical disparity in public employment
within the State of Andhra Pradesh. The candidates from certain
districts/areas of the State capturing a disproportionately large
number of public posts. Article 371D requires the State Government
to reorganise class or classes of posts in the State into different local
cadres for different parts of the State. The Presidential Order of 1975
was issued providing district/zone as a unit for the local cadre.
Whereas, G.O. provided that all the posts of teachers in the schools
situated in Scheduled Areas in the State of Andhra Pradesh shall be
filled in with the local Scheduled Tribes candidates only. A district or
zone is the unit for the local cadre. Whereas on the other hand, the
impugned G.O.Ms. No.3 of 2000 provided that all the posts of teachers
in the Scheduled Area, forming part of a district, to be filled up by
local Scheduled Tribe candidates only. The impugned G.O. reserved
all the posts in the Scheduled Area; thus, aspiring candidates in a
district/zone in the Scheduled Areas cannot apply for the post of
teachers in the district or zone as all the posts have been reserved for
local Scheduled Tribe candidates and "they cannot apply outside the
district or zone" because of the restrictions under Article 371D of the
Constitution.
65
80. Learned counsel for the appellant further argued that the
candidates other than Scheduled Tribe candidates in a district
residing in Scheduled Areas cannot apply at all, and they have been
deprived of the opportunity of getting public employment. The
impugned G.O. takes away the entire opportunity of nonScheduled
Tribe candidates even from applying for the post of teachers. Thus,
the impugned G.O. transgresses Article 371D of the Constitution and
is unconstitutional. The Governor could not have issued the
notification in such a manner in exercise of powers under Para 5 of
Fifth Schedule, which is repugnant to the Presidential Order issued
under Article 371D. The Governor cannot exercise the powers under
Para 5(1) of Fifth Schedule and cannot modify or override the
provisions of Article 371D of the Constitution.
81. It was argued on behalf of respondents that there is no
repugnancy in the Presidential Order and the impugned notification
issued by the Governor. Article 371D also starts with nonobstante
clause and conflict between the nonobstante clause as far as possible
must be resolved by way of harmonious construction of two conflicting
nonobstante clauses as laid down in Jay Engineering Works Limited v.
Industry Facilitation Council and Anr., (2006) 8 SCC 677:
“28. Both the Acts contain non obstante clauses. Ordinary rule
of construction is that where there are two non obstante clauses,
the latter shall prevail. But it is equally well settled that ultimate
66
conclusion thereupon would depend upon the limited context of
the statute. (See Allahabad Bank, (2000) 4 SCC 406, para 34.)
29. In Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638, it was
observed: (SCC p. 653, para 39)
“39. The interpretation of Section 25-J of the 1947 Act as
propounded by Mr Das also cannot also be accepted inasmuch
as in terms thereof only the provisions of the said chapter shall
have effect notwithstanding anything inconsistent therewith
contained in any other law including the Standing Orders
made under the Industrial Employment (Standing Orders) Act,
but it will have no application in a case where something
different is envisaged in terms of the statutory scheme. A
beneficial statute, as is well known, may receive liberal
construction but the same cannot be extended beyond the
statutory scheme.”
30. In Sarwan Singh v. Kasturi Lal, (1977) 1 SCC 750, this
Court opined: (SCC p. 760, para 20)
“When two or more laws operate in the same field and each
contains a non obstante clause stating that its provisions will
override those of any other law, stimulating and incisive
problems of interpretation arise. Since statutory interpretation
has no conventional protocol, cases of such conflict have to be
decided in reference to the object and purpose of the laws
under consideration.”
31. The endeavour of the court would, however, always be to
adopt a rule of harmonious construction.”
It was laid down that endeavour of the court would always be to
adopt a rule of harmonious construction, and the nonobstante clause
must be given effect as to the Parliament intent and not beyond that.
It was also urged that if the latter provision is found to be generic as
against the earlier provision, which is a special provision, then the
earlier provision shall prevail. Reliance has also been placed on
Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of
67
Maharashtra Ltd. and Anr., (1993) 2 SCC 144. The policy underlying
the provisions has to be considered, as observed in Jay Engineering
Works (supra). The notification issued, according to the Presidential
Order, creates district/zonal cadre for teachers. The Governor Order
reserved the posts of teachers in the Scheduled Area for Scheduled
Tribes. There is no strict conflict between the aforesaid notification,
and harmonious construction is possible.
82. It was further urged on behalf of respondents that the State of
Andhra Pradesh was reorganised in the year 1956, and part of the
areas falling in the State of Hyderabad, Telugu speaking areas known
as Telangana merged with Andhra Pradesh. In the Telangana region,
Mulki Rules prevail, which provide for residence as a requirement for
public employment. After the reorganisation, the Central Government
enacted the A.P. Public Employment (Requirement as to Residence)
Act, 1957, to continue the same. On challenge being made as to the
provisions being violative of Article 16(2), this Court in Narasimha Rao
v. State of A.P., (1969) 1 SCC 839, opined that the residence
requirement as unconstitutional, resulting in agitation demanding
division of State. The Parliament amended the Constitution by
inserting Article 371D, empowering the President to issue an order
providing equal opportunities to people belonging to different parts of
the State in education and public employment. Under para 3 of the
68
Presidential Order, the civil posts in the State were to be organised on
local cadres, such as Lower Division Clerks and equivalent NonGazetted category and existed Gazetted and NonGazetted category in
each department. Paras 4 and 5 of the Presidential Order provided
that employees to be allotted to local cadres/areas, which shall be a
unit for all purpose. Under para 6 of the Presidential Order, local
areas have to be the basis for various posts making district/zone,
multi zone and Statewide as local areas for all civil posts. Para 8
provided for reservation by way of direct recruitment for local
candidates. Article 371D(10) provided for nonobstante clause to make
provisions immune from challenge from Articles 14 and 16 of the
Constitution. The operation of Article 371D is confined to providing
for reservation in direct recruitment for local candidates and also for
various percentages of reservation for locals. Under para 6(1) each
district shall be regarded as local area. The action is not violative of
Article 371D. It was further argued on behalf of respondents that the
President has issued notification under Article 371D towards the
promotion of equality of opportunity. The notification did not deal
with Scheduled Areas or employment opportunities in Scheduled
Areas. No notification issued by the President under Article 371D
collides or is in conflict with the impugned notification. The
preferences given to the local areas within the meaning of Presidential
notification or exclusion of nonlocal areas cadre will not offend Article
69
14 of the Constitution, for which reliance has been placed on Sandeep
and Ors. v. Union of India and Ors., (2016) 2 SCC 328, Dr. Fazal
Ghafoor v. Principal, Osmania Medical College, Hyderabad and Ors.,
(1988) 4 SCC 532, Dr. Fazal Ghafoor v. Union of India and Ors., (1988)
Supp. SCC 794, N.T.R. University of Health Science, Vijayawada v. G.
Babu Rajendra Prasad and Anr., (2003) 5 SCC 350. Similar logic,
which is applicable to Articles 14 and 371D, is also to be relevant in
the context of what the Governor does under the Fifth Schedule.
Consequently, what the Governor has done to greater equality for
Scheduled Areas will not be faulted.
83. The nonobstante clause in Article 371D will not annul the nonobstante clause in Para 5 of the Fifth Schedule. Two constitutional
provisions operate in distinct domain. Article 371D was not enacted
to be a super imposition on Fifth Schedule. The object and purpose of
legislations or provisions with respect to nonobstante clause are
distinct. Thus, the court will not see any conflict. Reference has been
made to R.S. Raghunath v. State of Karnataka and Ors., (1991) Supp. 1
SCR 387, Sarwan Singh and Ors. v. Kasturi Lal, (1977) 2 SCR 421,
Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. and
Ors., (1990) 1 SCR 862, The South India Corporation (P) Ltd. v. The
Secretary, Board of Revenue Trivandrum and Ors., (1964) 4 SCR 280,
70
and Dr. Fazal Ghafoor v. Principal, Osmania Medical College,
Hyderabad and Ors., (1988) 4 SCC 532.
84. Article 371D has been inserted in the Constitution of India.
Subclauses 1, 2 and 10 of Article 371D are extracted hereunder:
“371D. Special provisions with respect to the State of Andhra
Pradesh or the State of Telangana.— (1) The president may by
order made with respect to the state of Andhra Pradesh or the
State of Telangana provide, having regard to the requirement of
each State, for equitable opportunities and facilities for the
people belonging to different parts of such State, in the matter of
public employment and in the matter of education, and different
provisions may be made for various parts of the States.
(2) An order made under clause (1) may, in particular,—
(a) require the State Government to organise any class or
classes of posts in a civil service of, or any class or classes of
civil posts under, the State into different local cadres for
different parts of the State and allot in accordance with such
principles and procedure as may be specified in the order the
persons holding such posts to the local cadres so organised;
(b) specify any part or parts of the State which shall be
regarded as the local area—
(i) for direct recruitment to posts in any local cadre
(whether organised in pursuance of an order under this
article or constituted otherwise) under the State
Government;
(ii) for direct recruitment to posts in any cadre under
any local authority within the State; and
(iii) for the purposes of admission to any University
within the State or to any other educational institution
which is subject to the control of the State
Government;
(c) specify the extent to which, the manner in which and the
conditions subject to which, preference or reservation shall be
given or made—
(i) in the matter of direct recruitment to posts in any
such cadre referred to in sub-clause (b) as may be
specified in this behalf in the order;
(ii) in the matter of admission to any such University
or other educational institution referred to in sub-
71
clause (b) as may be specified in this behalf in the
order,
to or in favour of candidates who have resided or studied for any
period specified in the order in the local area in respect of such
cadre, University or other educational institution, as the case
may be.
(3) x x x
10) The provisions of this article and of any order made by the
President thereunder shall have effect notwithstanding anything
in any other provision of this Constitution or in any other law for
the time being in force.”
The provisions contained in Article 371D were inserted by the
Constitution (Thirtysecond Amendment) Act, 1973, w.e.f. 1.7.1974
and has further been amended by the Andhra Pradesh Reorganisation
Act, 2014, applicable to the State of Andhra Pradesh or the State of
Telangana.
85. The President in exercise of powers under Article 371D(1) and
(2) promulgated order, namely, Andhra Pradesh Public Employment
(Organisation of Local Cadres and Regulation of Direct Recruitment)
Order, 1975. Para 3 provided for organisation of local cadres.
Recruitment to various categories has to be made to local cadres
taking district as a unit or 3 or 4 districts comprising as a zone. The
local area has been defined in Para 6(1) thus:
“Local areas: (1) Each district shall be regarded as a local
area –
(i) For direct recruitment to posts in any local cadre under
the State Government comprising all or any of the posts in
any department in that district belonging to the category of
Junior Assistants or to any other category equivalent to or
lower than that of a Junior Assistant.
72
(ii) For direct recruitment to posts in any cadre under any
local authority within that district, carrying a sale of pay the
minimum of which does not exceed the minimum of the
scale of pay of a Junior Assistant or a fixed pay not
exceeding that amount.”
For recruitment to the posts of teachers, a district is a unit.
Para 7 defines local candidates. Para 8 provides that 80 per cent
of the posts to be filled by direct recruitment. The matter of
recruitment to various local cadres is required to be in terms of the
provisions of the Presidential Order issued under Article 371D. The
recruitment of teachers is to be made for which district is a unit.
86. In Dr. C. Surekha v. Union of India, AIR 1989 SC 44, this Court
held that Article 371D does not militate against the basic structure of
the Constitution. Similar is the view taken in Dr. Fazal Ghafoor v.
Union of India, AIR 1989 SC 48.
87. This Court in V. Jagannadha Rao and Ors. v. State of A.P. and
Ors., (2001) 10 SCC 401 held that Article 371D(1) of the Constitution
unequivocally indicates that the said article and any order made by
the President thereunder shall have effect notwithstanding anything in
any other provision of the Constitution or any other law for the time
being in force. The Court observed:
“21. In Sadanandam case, 1989 Supp. (1) SCC 574, while
considering the legality of amended provisions of the Rules
framed by the State Government and in sustaining the same, this
Court was of the opinion that as the aforesaid Rules had been
framed under Section (3) of the Andhra Pradesh Ordinance 5 of
73
1983 read with para 5(2)(a) of the Presidential Order, the
conclusion of the Tribunal in striking down the rule is erroneous.
The Court was of the opinion that mode of recruitment and
category from which the recruitment to a service should be made
are policy matters exclusively within the purview and domain of
the executive and it would not be appropriate for judicial bodies
to sit in judgment over the wisdom of the executive in choosing
the mode of recruitment or the categories from which the
recruitment should be made. In our considered opinion, both the
aforesaid reasons do not constitute a true interpretation of the
provisions of the Presidential Order. At the outset, it may be
noticed that Article 371-D(10) of the Constitution unequivocally
indicates that the said article and any order made by the
President thereunder shall have effect notwithstanding anything
in any other provision of the Constitution or in any other law for
the time being in force. Necessarily, therefore, if it is construed
and held that the Presidential Order prohibits consideration of
the employees from the feeder category from other units then
such a rule made by the Governor under the proviso to Article
309 of the Constitution will have to be struck down. Then again
in exercise of powers under para 5(2) of the Presidential Order if
the State Government makes any provision, which is outside the
purview of the authority of the Government under para 5(2) of
the Order itself, then the said provision also has to be struck
down. Having construed the Rules framed by the Governor
under proviso to Article 309 of the Constitution from the
aforesaid standpoint, the conclusion is irresistible that the said
Rule to the extent indicated by the Tribunal is constitutionally
invalid and its conclusion is unassailable. In the case in hand,
the impugned provisions do not appear to have been framed in
exercise of powers under para 5(2) of the Presidential Order and
as such the same being a Rule made under proviso to Article 309
of the Constitution, the Presidential Order would prevail, as
provided under Article 371-D(10) of the Constitution. Even if it
is construed to be an order made under para 5(2) of the
Presidential Order, then also the same would be invalid being
beyond the permissible limits provided under the said paragraph.
In this view of the matter, the Tribunal rightly held the provision
to the extent it provides for consideration of employees of the
Factories and Boilers Units to be invalid, for the purpose of
promotion to the higher post in the Labour Unit and as such we
see no justification for our interference with the said conclusion
of the Tribunal and the earlier judgment of this Court in
Sadanandam case, 1989 Supp. (1) SCC 574, must be held to
have not been correctly decided. As a consequence, so would be
the case with Satyanarayana Rao case, (2000) 4 SCC 262.”
74
(emphasis supplied by us)
88. In S. Prakasha Rao and Anr. v. Commissioner of Commercial
Taxes and Ors., (1990) 2 SCC 259, this Court opined that once the
President makes an order under Article 371D(1) and (2), the State
Government loses its inherent power to deal with matters relating to
services, it may exercise its powers on matters dealt with the
Presidential Order only in the manner specified in the order. This
Court observed:
“19. It is seen that the order was made pursuant to the power
given to the President under Article 371-D, which is a special
provision made under the Constitution (Thirty-second
Amendment) Act, 1973 peculiar to the State of Andhra Pradesh
due to historical background. Therefore, the State Government
have no inherent power in creating a zone or organising local
cadre within the zones except in accordance with the provisions
made in the Andhra Pradesh Public Employment (Organisation
of Local Cadres and Regulation for Direct Recruitment) Order. It
is true that the clause ‘or constituted otherwise’ defined in
paragraph 2(e) is of wide import, but is only relatable to the
power given by the President to the State Government to
organise local cadre. Paragraph 3(1) is the source of that power,
but the exercise thereof is hedged with a limitation of twelve
months from the date of commencement of the Order. Therefore,
the power to organise class or classes of post of civil services of,
and class or classes of civil posts, under the State into different
local cadres should be exercised by the State Government in
accordance with paragraph 3(1) before the expiry of the twelve
months from October 20, 1975. If the exercise of the power is
not circumscribed within limitation, certainly under General
Clauses Act the power could be exercised from time to time in
organising local cadres to meet the administrative exigencies.
The prescription of limitation is a fetter put on the exercise of
power by the State Government. Obviously, realising this reality
and the need to organise local cadres, subsequent thereto the
amendment was made and was published in GOMs No. 34 G.A.
dated January 24, 1981 introducing proviso to paragraph 3(1).
75
Thereunder, notwithstanding the expiry of the said period, the
President alone has been given power to organise local cadres in
respect of class or classes of posts in civil services and class or
classes of civil posts, under the State. That too subject to the
conditions precedent laid therein. Thus, it is the President and the
President alone who has been given power under proviso by an
order to require the State Government to organise the local
cadres in relation to any class or classes of posts in the civil
services of and class or classes of civil posts under the State into
different local cadres. It could be considered in yet another
perspective. Paragraph 2(e) indicates that President himself may
create a local cadre instead of requiring the State Government to
organise local cadre. For instance, paragraph 3(6) empowered
the President to create local cadre for the city of Hyderabad.
Similarly, under proviso to paragraph 3(1) the President may
require the State Government to create a local cadre within a
zone. So the phrase ‘or constituted otherwise’ cannot be
understood de hors the scheme of the Presidential Order. No
doubt in common parlance, the word ‘otherwise’ is of ‘wide’
amplitude. This Court in K.K. Kochuni v. States of Madras and
Kerala, AIR 1960 SC 1080, Subba Rao, J., as he then was,
speaking per majority in paragraph 50 while construing the word
‘otherwise’ held that it must be confined to things analogous to
right or contract such as lost grant, immemorial user etc. The
word ‘otherwise’ in the context only means whatever may be the
origin of the receipt of maintenance. The ratio thereunder cannot
be extended in the contextual circumstances obtainable on the
facts in this case. Similarly, in Lilavati Bai v. State of Bombay,
AIR 1957 SC 521, Sinha J., as he then was, speaking for the
Constitution Bench interpreting Explanation (a) to Section 6 of
Bombay Land Requisition Act, 1948, as amended in 1950 and
repelling the application of ejusdem generis doctrine laid the law
thus:
“The legislature has been cautious and thoroughgoing
enough to bar all avenues of escape by using the words ‘or
otherwise’. Those words are not words of limitation but of
extension so as to cover all possible ways in which a
vacancy may occur. Generally speaking a tenant’s
occupation of his premises ceases when his tenancy is
terminated by acts of parties or by operation of law or by
eviction by the landlord or by assignment or transfer of the
tenant’s interest. But the legislature, when it used the words
‘or otherwise’, apparently intended to cover other cases
76
which may not come within the meaning of the preceding
clauses, for example, a case where the tenant’s occupation
has ceased as a result of trespass by a third party. The
legislature, in our opinion, intended to cover all possible
cases of vacancy occurring due to any reasons whatsoever.”
Thus, contextual interpretation to the words ‘or otherwise’ was
given by this Court. Therefore, the phrase ‘constituted otherwise’
is to be understood in that context and purpose which Article
371-D and the Presidential Order seek to achieve. If the
interpretation given by the appellants is given acceptance it
amounts to giving blanket power to the State Government to
create local cadres at its will tending to defeat the object of
Article 371-D and the Presidential Order. Accordingly, we have
no hesitation to reject the interpretation of wider connotation.
The ratio in these decisions does not render any assistance to the
appellants.
20. Similarly, the power given to the State Government in subparagraph (7) of paragraph 3 of the Order is only to organise a
separate cadre in respect of any category of posts in any
department when more than one cadre in respect of such
category exists in each department; so the State Government
may organise one cadre when more than one cadre in respect of
different categories of posts exist in a zone under paragraph 3(1)
of the Order. It is clear when we see the language in paragraph
3(7) which says that: “nothing in this order shall be deemed to
prevent the State from organising”. Take for instance while
creating local cadre co-terminus with the administrative control
of the Deputy Commissioner, Commercial Taxes, local cadre for
Senior Assistants may be created. It is also made manifest by
instructions 7 and 9(e) of the instructions contained in GOMs
No. 728 GAD dated November 1, 1975. But, as stated earlier, it
is only for the purpose of administrative convenience, not for the
purpose of recruitment, seniority or promotion etc., as the case
may be. Thus, we have no hesitation to hold that the creation of a
division and maintaining separate seniority of Junior Assistants
and Senior Assistants for Adilabad and Warangal Divisions are
illegal, contrary to order issued in GOMs No. 581 and the
Andhra Pradesh Employment (Organisation of Local Cadre and
Regulation of Direct Recruitment) Order, 1975. The single
member of the Tribunal in R.P. No. 101 of 1982 dated April 1,
1982 did not consider the effect of the order in proper
perspective and is illegal.”
(emphasis supplied by us)
77
No doubt about it that the provision to have overriding effect
shall have any nexus as to the subject matter of other provisions.
89. The main question to be considered is whether there is any
conflict between the Presidential Order and the G.O. Ms. No. 3 of 2000
issued under the order of the Governor under Para 5(1) of the Fifth
Schedule of the Constitution. Considering the geographical disparity
in public employment, Article 371D was inserted in the Constitution,
providing candidates from certain districts/zones to form the local
cadre for different posts for different parts of the States. The
Presidential Order was issued providing district/zone for local cadre,
on the other hand, the order issued by the Governor has reserved all
the posts of teachers in the Scheduled Areas for Schedule Tribe
candidates. The aspiring candidates of the district/zone in the
Scheduled Area cannot apply for the post of teachers in the district as
100 per cent reservation was made vide G.O.Ms. No. 3 of 2000 by the
Governor. It is also not disputed that aspiring candidates cannot
apply outside the district/zone because of the restrictions under
Article 371D of the Constitution. As there is 100 per cent reservation
provided for the Scheduled Tribes in the Scheduled Areas, other
candidates of Scheduled Castes, General and Other Backward Classes
category cannot apply at all in other districts. They are being denied
the opportunity of getting the employment as against the posts in
78
question. Thus, the order issued by the Governor is clearly in conflict
with the Presidential Order issued under Article 371D. The
candidates of local areas or other candidates except for Scheduled
Tribes have been deprived of the opportunity of seeking public
employment because of the order issued by the Governor, and they
cannot apply outside the local area in view of the Presidential
notification. The Presidential notification intends that they have to
apply within the district, and the Governor's notification takes away
that right. Thus, there is a clear repugnancy between the notification
issued by the President and that subsequent order issued by the
Governor in the exercise of powers under Para 5, Fifth Schedule of the
Constitution. It is not possible to harmonise both the notifications.
Apart from that, there is total deprivation. It is not factually correct
that Presidential Order did not deal with Scheduled Areas. The
Presidential Order applied to the entire State and carved out a special
provision that applies with a nonobstante clause.
90. The Governor is competent to issue an order which is not in
conflict with the Presidential Order. The Governor issued the order
when the Presidential Order was already in force in the entire State.
The Governor could not have issued the order in derogation to the
Presidential Order. In our opinion, 100 per cent reservation could not
have been provided as that violates the Presidential Order.
79
In Re: Question No.2: whether 100% reservation is permissible
under the Constitution?
91. The Constitution has provided for justice – social, economic and
political; liberty of thought, expression, belief, faith and worship;
equality of status and opportunity; and to promote among them all
fraternity assuring the dignity of the individual and the unity and
integrity of the Nation. The framers of the Constitution have taken
great care and deliberation so that it reflects the high purpose and
noble objectives. It aims at the formation of an egalitarian order, free
from exploitation, the fundamental equality of humans and to provide
support to the weaker sections of the society and wherefrom there is a
disparity to make them equal by providing protective discrimination.
The Constitution in the historic perspective leans in favour of
providing equality and those aims sought to be achieved by the
Constitution by giving special protection to the socially and
economically backward classes by providing a protective umbrella for
their social emancipation and providing them equal justice, ensuring
the right of equality by providing helping hand to them by way of
reservation measures. Article 14 guarantees equality before the law or
the equal protection of the laws. Be it a matter of distribution of State
largesse; the Government is obligated to follow the constitutionalism.
State action cannot be arbitrary and discriminatory and cannot be
guided by extraneous considerations, which is opposed to equality.
80
The concept of equality is the antithesis of arbitrariness in action.
There cannot be any legislation in violation of equality, which violates
the basic concept of equality as enshrined in Part III of the
Constitution. An administrative order has to be tested on the anvil of
nonarbitrariness. Any action of the legislature, administrative or
quasijudicial, is open to challenge if it is in conflict with the
Constitution or the Act and applicable general principles of law. The
protective discrimination of persons residing in backward areas is
permissible, as held in M.P. Oil Extraction & Anr. v. State of M.P. &
Ors., (1997) 7 SCC 592. The industrial units were set up in backward
areas at the instance of the Government. Special treatment was given
to them for the supply of sal seeds at a concessional rate of royalty. It
was held in the aforesaid decision that the distinction was reasonable.
92. The concept of equality cannot be pressed to commit another
wrong. The concept of equality enshrined in Article 14 of the
Constitution is a positive concept. It is not a concept of negative
equality. It cannot be used to perpetuate an illegality. Equity cannot
be applied when it arises out of illegality. The doctrine of equity would
not be attracted when the benefits were conferred on the basis of
illegality, as held in Usha Mehta v. Government of Andhra Pradesh,
(2012) 12 SCC 419; John Vallamattom v. Union of India, (2003) 6 SCC
611; General Manager, Uttranchal Jal Sansthan v. Laxmi Devi, (2009) 7
81
SCC 205, State of West Bengal v. Debashish Mukherjee, AIR 2011 SC
3667.
93. Article 14 is to be understood in the light of the Directive
Principles, as observed in Indra Sawhney (supra). The classification
made cannot be unreasonable. It can be based on a reasonable basis.
It cannot be arbitrary but must be rational. It should be based on
intelligible differentia and must have rational nexus to the object
sought to be achieved. There are various fields in which Article 14 has
extended its reach and ambit. The provision is very deep and
pervasive. It kills the evil of discrimination to bring equality.
94. Article 15 of the Constitution prohibits discrimination based on
religion, race, caste, sex, or place of birth. Article 15(4) provides that
the State can make any special provision for the advancement of
socially and economically backward classes or scheduled castes and
scheduled tribes. Similarly, Article 15(5) enables the State to make
special provisions for educationally backward classes, Scheduled
Castes, and Scheduled Tribes for admission to educational
institutions, including private educational institutions, whether aided
or unaided by the State. Article 15(6) enables the State Government to
make any special provision for the advancement of economically
weaker sections of citizens other than the classes mentioned in Article
15(4) and 15(5). The State can also make a provision under Article
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15(6)(b) for the advancement of economically weaker sections of the
citizens relating to their admission to educational institutions,
including private educational institutions, whether aided or unaided
except for the minority educational institutions. The State has the
power to notify economically weaker sections from time to time based
on family income and other indicators of economic disadvantage.
95. Article 16 deals with equality of opportunity in matters of public
employment, which ensures equality of opportunity for all citizens in
matters relating to employment or appointment to any office under the
State. Article 16(2) provides that no citizen shall be discriminated on
the grounds of religion, race, caste, sex, descent, place of birth,
residences or any of them and be ineligible for, or discriminated
against in respect of any employment or office under the State. Article
16(3) enables the Parliament to make law regarding a class or classes
of employment or appointment to an office providing for any
requirement as to residence within that State or Union Territory before
such employment or appointment. Under Article 16(4), State can
provide reservation in appointments or posts in favour of any
backward class of citizens which, in its opinion, is not adequately
represented in services under State. Directive Principles of State Policy
enjoin a duty upon the State to secure a social order for the promotion
and welfare of the people, to promote justice – social, economic, and
83
political; and all institutions of the national life have to endeavour
furtherance of the aboveavowed purposes. The State has to strive to
minimise inequalities of income, eliminate the status of opportunities
not only amongst individuals but also groups of people engaged in
different areas, and engaged in different professions. Article 39(b) and
(c) aim at the distribution of State largesse and control of the material
resources of the community as best to subserve the common good,
and that the operation of the economic system does not result in the
concentration of wealth and means of production to the collective
detriment. Article 47 of the Constitution deals with the duty of the
State to raise the level of nutrition and the standard of living and to
improve public health. Article 51A (a) to (k) contains the fundamental
duties, and every citizen of India must promote harmony and the spirit
of common brotherhood amongst all the people of India transcending
religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women. Article 51A(j) confers a
duty to strive towards in all spheres of individual and collective
activity so that the nation steadily rises to higher levels of endeavours
and achievement. Article 51A has been used as an interpretative tool
where the constitutionality of an Act is challenged. The Court
considered the duties in Mohan Kumar Singhania & Ors. v. Union of
India & Ors., 1992 Supp. (1) SCC 594 thus:
84
“41. In this regard, it will be worthwhile to refer to Article 51-A
in Part IV-A under the caption 'Fundamental Duties' added by the
Constitution (Forty-second Amendment) Act, 1976, in
accordance with the recommendations of the Swaran Singh
Committee. The said article contains a mandate of the
Constitution that it shall be the duty of every citizen of India to
do the various things specified in clauses (a) to (j) of which
clause (j) commands that it is the duty of every citizen of India to
strive towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to higher
levels of endeavour and achievement.
42. In our view, the effort taken by the government in giving
utmost importance to the training programme of the selectees so
that this higher civil service being the topmost service of the
country is not wasted and does not become fruitless during the
training period is in consonance with the provisions of Article
51-A(j).”
96. The Constitution of India contains special provisions for
scheduled castes and scheduled tribes in Part XVI. Article 330
provides for reservation of seats for scheduled castes and scheduled
tribes in the House of the People. Article 332 provides for “reservation
of seats” for scheduled castes and scheduled tribes in the legislative
assemblies of the States. Article 334 provides for “reservation of seats”
and special representation to “cease after a certain period." The
provision was made initially for a lesser period. After that, it was
extended for 20 years, 30 years, 40 years, 50 years, 60
years, and now enhanced to 70 years by amendment made in 2019.
Article 335 provides that claims of the members of the scheduled
castes and the scheduled tribes, for maintenance of efficiency of
administration, in the making of appointments to services and posts
85
in connection with the affairs of the Union or a State; and State can
relax criteria in qualifying marks in any examination or lower
standards of evaluation, for reservation in matters of promotion to any
class or classes of services or posts in connection with the affairs of
the Union or a State.
97. Article 338 provides for constitution of National Commission for
Scheduled Castes to investigate and monitor all matters relating to the
safeguards provided for the scheduled castes and to evaluate the
working of such safeguards; to inquire into specific complaints
concerning the deprivation of rights and safeguards of the scheduled
castes; to participate and advise on the planning process of socioeconomic development of the scheduled castes and to evaluate the
progress of their development under the Union and any State; to
present to the President, annually and at such other times as the
Commission may deem fit, reports upon the working of those
safeguards are provided in Article 338(5)(d). Article 338(6) requires
that the President shall cause all such reports to be laid before each
House of Parliament and a memorandum explaining action taken or
proposed to be taken on recommendations relating to the Union and
the reasons for nonacceptance, if any, of any of such
recommendations. A copy of the report has to be forwarded to the
Governor to be dealt with in terms of Article 338(7). The Commission
86
has the power of inquiring into any complaint as specified in Article
338(8), and Article 338A provides for the constitution of a National
Commission for Scheduled Tribes. Similar provisions are contained for
National Commission for Scheduled Tribes in Article 338A. Article 339
envisages control of the Union over the administration of scheduled
areas and the welfare of the scheduled tribes. Article 340 deals with
the appointment of a Commission to investigate the conditions of
backward classes.
98. Under Article 341 the President concerning any State or Union
territory, may specify the castes, races or tribes or parts of or groups
within castes, races or tribes which shall for the Constitution, be
deemed to be scheduled castes in relation to that State or Union
territory, as the case may be. Article 341(2) confers power on the
Parliament to include in or exclude from the list of scheduled castes
specified in a notification issued under Article 342(1) any caste, race
or tribe or part of or group within any caste, race or tribe, and any
subsequent notification shall not vary the same. Power can be
exercised only once. Article 342 contains a provision in respect of
scheduled tribes. The President may, by notification specify the tribe
or tribal communities or parts of or groups within tribes or tribal
communities which shall for the Constitution, be deemed to be
scheduled tribes in relation to that State or the Union territory, as the
87
case may be. The Parliament may include in or exclude from the list of
scheduled tribes, any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid, any
subsequent notification shall not vary a notification issued under the
said clause. Thus, the power to vary can be exercised only once. A
similar provision has been added in Article 342A concerning socially
and educationally backward classes.
99. Article 243T deals with reservation of seats for scheduled castes
and scheduled tribes in every municipality in proportion to the
population of the scheduled castes or scheduled tribes in the
municipal area to the total population of that area and provides for
rotation of seats. Article 243D provides for reservation of seats for
scheduled castes and scheduled tribes in every Panchayat, and
Panchayat is constituted in every State, Panchayat at the village,
intermediate and district levels as provided in Article 243B. It is
mandatory to constitute such Panchayat at the district level in a State
having a population exceeding 20 lakhs.
100. Article 244, with which we are concerned in the present matter,
provides for the administration of scheduled areas and tribal areas.
The Constitution is spatially it provides Scheduled Areas under Article
244, Schedule V, Schedule VI, and special provisions have been made
concerning various States under Articles 370, 371A to 371J. For
88
better administration, the Constitution has divided India into States
and Union Territories as per Articles 3 and 4.
101. Concerning classification in a constitutional dispensation for
scheduled castes and scheduled tribes, Dr. Ambedkar’s speech in the
Constituent Assembly Debates, page 979, 11th at pages 97980 is
referred to by Dr. Dhawan. Same is extracted hereunder:
"We must begin by acknowledging the fact that there is a
complete absence of two things in Indian Society. One of these
is equality. On the social plane, we have in India a society based
on the principle of graded inequality, which means elevation for
some and degradation for others. On the economic plane, we
have a society in which there are some who have immense
wealth as against many who live in abject poverty. On the 26th of
January, we are going to enter into a life of contradictions. In
politics, we will have equality and in social and economic life we
will have inequality. In politics we will be recognizing the
principle of one man one vote one value. In our social and
economic life we shall, by reason of our social and economic
structure, continue to defy the principle of one man one vote one
value. How long shall we continue to live this life of
contradictions? How long shall we continue to deny equality in
our social and economic life? If we continue to deny it for long,
we shall do so by putting out political democracy in peril. We
must remove this contradiction at the earliest possible moment or
else those suffer from inequality will blow up the structure of
political democracy which this Assembly has so laboriously built
up.
The second thing we are wanting in is recognition of the
principle of fraternity. What does fraternity mean? Fraternity
means a sense of common brotherhood of all Indians - if Indians
think of themselves as being one people. It is the principle
which gives unity and solidarity to social life… The sooner we
realize that we are not as yet a nation and seriously think of ways
and means of realizing this goal, the better for us….. For
fraternity can be a fact, only where there is a nation. Without
fraternity, equality and liberty will be no deeper than a coat of
paint."
89
102. The scheduled castes and scheduled tribes have been provided
with special measures to make them equal to the others. Efforts have
been made to protect their land and property by enacting various
laws. Special provisions have also been carved out to preserve their
human dignity with respect, in the shape of trusts in Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The
scheduled castes and scheduled tribes were making a struggle for
freedom and various rights in the country. They suffered
discrimination; fruits of development have not percolated down to
them. They remained an unequal and vulnerable section of the society
and treated for centuries as outcasts socially. That is the basis for
providing them reservation and special treatment to provide them
upliftment and to eradicate their sufferings. We have not been able to
eradicate untouchability in the real sense so far and to provide safety
and security to downtrodden class and to ensure that their rights are
preserved and protected, and they equally enjoy frugal comforts of life.
103. Concerning tribals, we see that there are several schemes for
their upliftment, but we still see that at certain places, they are still
kept in isolation and are not even able to get basic amenities,
education, and frugal comforts of life. These classes have an equal
right to life available to all human beings. Considering the social
backwardness, which includes economic aspects also, these are the
90
classes that have suffered historic disabilities arising from
discrimination, poverty, educational backwardness to provide them
empowerment and to make them part of the mainstream. Special
provisions have been carved out in the Constitution. Article 16(4) is
not an exception to Article 16(1) being part of equality. The reservation
can be rectified. Section 16(4) aims at group backwardness.
Reservations are provided due to discrimination and disadvantages
suffered by the backward classes, scheduled castes and scheduled
tribes for sharing the State power.
104. The concept of sharing State power was considered in Indra
Sawhney (supra). Sawant, J., in his opinion, dealt with the idea of
sharing of State power thus:
“483. That only economic backwardness was not in the
contemplation of the Constitution is made further clear by the
fact that at the time of the First Amendment to the Constitution
which added clause (4) to Article 15 of the Constitution, one of
the Members, Prof. K.T. Shah wanted the elimination of the
word “classes” in and the addition of the word “economically” to
the qualifiers of the term “backward classes”. This Amendment
was not accepted. Prime Minister Nehru himself stated that the
addition of the word “economically” would put the language of
the article at variance with that of Article 340. He added that
“socially” is a much wider term including many things and
certainly including “economically”. This shows that economic
consideration alone as the basis of backwardness was not only
not intended but positively discarded.”
(emphasis supplied)
Justice Jeevan Reddy dealt with the same, thus:
“694. The above material makes it amply clear that the objective
behind clause (4) of Article 16 was the sharing of State power.
91
The State power which was almost exclusively monopolised by
the upper castes i.e., a few communities, was now sought to be
made broad-based. The backward communities who were till
then kept out of apparatus of power, were sought to be inducted
thereinto and since that was not practicable in the normal course,
a special provision was made to effectuate the said objective. In
short, the objective behind Article 16(4) is empowerment of
the deprived backward communities — to give them a share
in the administrative apparatus and in the governance of the
community.
750. Dr Rajeev Dhavan, learned counsel appearing for
Srinarayana Dharma Paripalana Yogam (an association of
Ezhavas in Kerala) submitted that Articles 16(4) and 15(4)
occupy different fields and serve different purposes. Whereas
Article 15(4) contemplates positive action programmes, Article
16(4) enables the State to undertake schemes of positive
discrimination. For this reason, the class of intended
beneficiaries under both the clauses is different. The social and
educational backwardness which is the basis of identifying
backwardness under Article 15(4) is only partly true in the case
of ‘backward class of citizens’ in Article 16(4). The expression
“any backward class of citizens” occurring in Article 16(4) must
be understood in the light of the purpose of the said clause
namely, empowerment of those groups and classes which have
been kept out of the administration — classes which have
suffered historic disabilities arising from discrimination or
disadvantage or both and who must now be provided entry into
the administrative apparatus. In the light of the fact that the
Scheduled Castes and Scheduled Tribes were also intended to be
beneficiaries of Article 16(4) there is no reason why caste cannot
be an exclusive criterion for determining beneficiaries under
Article 16(4). Counsel emphasised the fact that Article 16(4)
speaks of group protection and not individual protection.
788. Further, if one keeps in mind the context in which Article
16(4) was enacted it would be clear that the accent was upon
social backwardness. It goes without saying that in the Indian
context, social backwardness leads to educational backwardness
and both of them together lead to poverty — which in turn
breeds and perpetuates the social and educational backwardness.
They feed upon each other constituting a vicious circle. It is a
well-known fact that till independence the administrative
apparatus was manned almost exclusively by members of the
‘upper’ castes. The Shudras, the Scheduled Castes and the
Scheduled Tribes and other similar backward social groups
92
among Muslims and Christians had practically no entry into the
administrative apparatus. It was this imbalance which was
sought to be redressed by providing for reservations in favour of
such backward classes. In this sense Dr Rajeev Dhavan may be
right when he says that the object of Article 16(4) was
“empowerment” of the backward classes. The idea was to
enable them to share the state power. We are, accordingly, of the
opinion that the backwardness contemplated by Article 16(4) is
mainly social backwardness. It would not be correct to say that
the backwardness under Article 16(4) should be both social and
educational. The Scheduled Tribes and the Scheduled Castes are
without a doubt backward for the purposes of the clause; no one
has suggested that they should satisfy the test of social and
educational backwardness. It is necessary to state at this stage
that the Mandal Commission appointed under Article 340 was
concerned only with the socially and educationally backward
classes contemplated by the said article. Even so, it is evident
that social backwardness has been given precedence over others
by the Mandal Commission — 12 out of 22 total points. Social
backwardness — it may be reiterated — leads to educational and
economic backwardness. No objection can be, nor is taken, to
the validity and relevancy of the criteria adopted by the Mandal
Commission. For a proper appreciation of the criteria adopted by
the Mandal Commission and the difficulties in the way of
evolving the criteria of backwardness, one must read closely
Chapters III and XI of Volume I along with Appendixes XII and
XXI in Volume II. Appendix XII is the Report of the Research
Planning Team of the Sociologists while Appendix XXI is the
‘Final List of Tables’ adopted in the course of socio-educational
survey. In particular, one may read paras 11.18 to 11.22 in
Chapter XI, which are quoted hereunder for ready reference:
“11.18. Technical Committee constituted a SubCommittee of Experts (Appendix-20, Volume II) to help the
Commission prepare ‘Indicators of Backwardness’ for
analysing data contained in computerised tables. After a
series of meetings and a lot of testing of proposed
indicators against the tabulated data, the number of tables
actually required for the Commission’s work was reduced
to 31 (Appendix-21, Volume II). The formulation and
refinement of indicators involved testing and validation
checks at every stage.
11.19. In this connection, it may be useful to point out
that in social sciences no mathematical formulae or precise
bench-marks are available for determining various social
traits. A survey of the above type has to tread warily on
unfamiliar ground and evolve its own norms and bench-
93
marks. This exercise was full of hidden pitfalls and two
simple examples are given below to illustrate this point.
11.20. In Balaji case the Supreme Court held that if a
particular community is to be treated as educationally
backward, the divergence between its educational level and
that of the State average should not be marginal but
substantial. The Court considered 50% divergence to be
satisfactory. Now, 80% of the population of Bihar (1971
Census) is illiterate. To beat this percentage figure by a
margin of 50% will mean that 120% members of a
caste/class should be illiterates. In fact it will be seen that in
this case even 25% divergence will stretch us to the
maximum saturation point of 100%.
11.21. In the Indian situation where vast majority of the
people are illiterate, poor or backward, one has to be very
careful in setting deviations from the norms as, in our
conditions, norms themselves are very low. For example,
Per Capita Consumer Expenditure for 1977-78 at current
prices was Rs 991 per annum. For the same period, the
poverty line for urban areas was at Rs 900 per annum and
for rural areas at Rs 780. It will be seen that this poverty
line is quite close to the Per Capita Consumer Expenditure
of an average Indian. Now following the dictum of Balaji
case, if 50% deviation from this average Per Capita
Consumer Expenditure was to be accepted to identify
‘economically backward’ classes, their income level will
have to be 50% below the Per Capita Consumer
Expenditure i.e. less than Rs 495.5 per year. This figure is
so much below the poverty line both in urban and rural
areas that most of the people may die of starvation before
they qualify for such a distinction.
11.22. In view of the above, ‘Indicators for
Backwardness’ were tested against various cut-off points.
For doing so, about a dozen castes well-known for their
social and educational backwardness were selected from
amongst the castes covered by our survey in a particular
State. These were treated as ‘Control’ and validation checks
were carried out by testing them against ‘Indicators’ at
various cut-off points. For instance, one of the ‘Indicators’
for social backwardness is the rate of student drop-outs in
the age group 5-15 years as compared to the State average.
As a result of the above tests, it was seen that in
educationally backward castes this rate is at least 25%
above the State average. Further, it was also noticed that
this deviation of 25% from the State average in the case of
most of the ‘Indicators’ gave satisfactory results. In view of
this, wherever an ‘Indicator’ was based on deviation from
94
the State average, it was fixed at 25%, because a deviation
of 50% was seen to give wholly unsatisfactory results and,
at times, to create anomalous situations.”
(emphasis supplied by us)
(a). In Indra Sawhney (supra), the Court held that reservation is not
a proportionate representation but adequate, thus:
807. We must, however, point out that clause (4) speaks of
adequate representation and not proportionate representation.
Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is
accepted only in Articles 330 and 332 of the Constitution and
that too for a limited period. These articles speak of reservation
of seats in Lok Sabha and the State legislatures in favour of
Scheduled Tribes and Scheduled Castes proportionate to their
population, but they are only temporary and special provisions. It
is therefore not possible to accept the theory of proportionate
representation though the proportion of population of backward
classes to the total population would certainly be relevant. Just as
every power must be exercised reasonably and fairly, the power
conferred by clause (4) of Article 16 should also be exercised in
a fair manner and within reasonable limits — and what is more
reasonable than to say that reservation under clause (4) shall not
exceed 50% of the appointments or posts, barring certain
extraordinary situations as explained hereinafter. From this point
of view, the 27% reservation provided by the impugned
Memorandums in favour of backward classes is well within the
reasonable limits. Together with reservation in favour of
Scheduled Castes and Scheduled Tribes, it comes to a total of
49.5%. In this connection, reference may be had to the Full
Bench decision of the Andhra Pradesh High Court in V.
Narayana Rao v. State of A.P., striking down the enhancement of
reservation from 25% to 44% for OBCs. The said enhancement
had the effect of taking the total reservation under Article 16(4)
to 65%.
(b). The expression ‘socially backward’ holds the key to define
backward as held in Indra Sawhney (supra):
“774. In our opinion too, the words “class of citizens — not
adequately represented in the services under the State” would
have been a vague and uncertain description. By adding the word
“backward” and by the speeches of Dr Ambedkar and Shri K.M.
95
Munshi, it was made clear that the “class of citizens … not
adequately represented in the services under the State” meant
only those classes of citizens who were not so represented on
account of their social backwardness.”
(c). In Indra Sawhney (supra), the Court further laid down that
reservation are not antimeritarian. Following is the relevant
discussion:
“832. In Balaji and other cases, it was assumed that reservations
are necessarily anti-meritarian. For example, in Janki Prasad
Parimoo, it was observed, "it is implicit in the idea of reservation
that a less meritorious person be preferred to another who is
more meritorious." To the same effect is the opinion of Khanna, J
in Thomas, though it is a minority opinion. Even Subba Rao, J,
who did not agree with this view, did recognize some force in it.
In his dissenting opinion in Devadasan while holding that there
is no conflict between Article 16(4) and Article 335, he did say,
"it is inevitable in the nature of reservation that there will be a
lowering of standards to some extent," but, he said, on that
account, the provision cannot be said to be bad, inasmuch as in
that case, the State had, as a matter of fact, prescribed minimum
qualifications, and only those possessing such minimum
qualifications were appointed. This view was, however, not
accepted by Krishna Iyer, J in Thomas. He said: (SCC p. 366,
para 132)
“[E]fficiency means, in terms of good government, not marks
in examinations only, but responsible and responsive service to
the people. A chaotic genius is a grave danger in public
administration. The inputs of efficiency include a sense of
belonging and of accountability which springs in the bosom of
the bureaucracy (not pejoratively used) if its composition takes
in also the weaker segments of ‘We, the people of India’. No
other understanding can reconcile the claim of the radical present
and the hangover of the unjust past.”
833. A similar view was expressed in Vasanth Kumar by
Chinnappa Reddy, J. The learned Judge said (SCC p. 739, para
36)
“[T]he mere securing of high marks at an examination may
not necessarily mark out a good administrator. An efficient
administrator, one takes it, must be one who possesses among
other qualities the capacity to understand with sympathy and,
therefore, to tackle bravely the problems of a large segment of
population constituting the weaker sections of the people. And,
96
who better than the ones belonging to those very sections? Why
not ask ourselves why 35 years after Independence, the position
of the Scheduled Castes, etc. has not greatly improved? Is it not a
legitimate question to ask whether things might have been
different, had the District Administrators and the State and
Central Bureaucrats been drawn in larger numbers from these
classes? Courts are not equipped to answer these questions, but
the courts may not interfere with the honest endeavours of the
Government to find answers and solutions. We do not mean to
say that efficiency in the civil service is unnecessary or that it is
a myth. All that we mean to say is that one need not make a
fastidious fetish of it.”
834. It is submitted by the learned counsel for petitioners that
reservation necessarily means appointment of less meritorious
persons, which in turn leads to lowering of efficiency of
administration. The submission, therefore, is that reservation
should be confined to a small minority of appointments/posts, —
in any event, to not more than 30%, the figure referred to in the
speech of Dr Ambedkar in the Constituent Assembly. The
mandate of Article 335, it is argued, implies that reservations
should be so operated as not to affect the efficiency of
administration. Even Article 16 and the directive of Article 46, it
is said, should be read subject to the aforesaid mandate of Article
335.
835. The respondents, on the other hand, contend that the marks
obtained at the examination/test/interview at the stage of entry
into service is not an indicium of the inherent merit of a
candidate. They rely upon the opinion of Douglas, J in DeFunis
where the learned Judge illustrates the said aspect by giving the
example of a candidate coming from disadvantaged sections of
society and yet obtaining reasonably good scores — thus
manifesting his “promise and potential” — vis-a-vis a candidate
from a higher strata obtaining higher scores. (His opinion is
referred to in para 716.) On account of the disadvantages
suffered by them and the lack of opportunities, — the
respondents say — members of backward classes of citizens may
not score equally with the members of socially advanced classes
at the inception but in course of time, they would. It would be
fallacious to presume that nature has endowed intelligence only
to the members of the forward classes. It is to be found
everywhere. It only requires an opportunity to prove itself. The
directive in Article 46 must be understood and implemented
keeping in view these aspects, say the respondents.
836. We do not think it necessary to express ourselves at any
length on the correctness or otherwise of the opposing points of
97
view referred to above. (It is, however, necessary to point out
that the mandate — if it can be called that — of Article 335 is to
take the claims of members of SC/ST into consideration,
consistent with the maintenance of efficiency of administration.
It would be a misreading of the article to say that the mandate is
maintenance of efficiency of administration.) Maybe, efficiency,
competence and merit are not synonymous concepts; maybe, it is
wrong to treat merit as synonymous with efficiency in
administration and that merit is but a component of the
efficiency of an administrator. Even so, the relevance and
significance of merit at the stage of initial recruitment cannot be
ignored. It cannot also be ignored that the very idea of
reservation implies selection of a less meritorious person. At the
same time, we recognise that this much cost has to be paid, if the
constitutional promise of social justice is to be redeemed. We
also firmly believe that given an opportunity, members of these
classes are bound to overcome their initial disadvantages and
would compete with — and may, in some cases, excel —
members of open competition. It is undeniable that nature has
endowed merit upon members of backward classes as much as it
has endowed upon members of other classes and that what is
required is an opportunity to prove it. It may not, therefore, be
said that reservations are anti-meritarian. Merit there is even
among the reserved candidates and the small difference, that may
be allowed at the stage of initial recruitment is bound to
disappear in course of time. These members too will compete
with and improve their efficiency along with others.
837. Having said this, we must append a note of clarification. In
some cases arising under Article 15, this Court has upheld the
removal of minimum qualifying marks, in the case of Scheduled
Caste/Scheduled Tribe candidates, in the matter of admission to
medical courses. For example, in State of M.P. v. Nivedita Jain
admission to medical course was regulated by an entrance test
(called Pre-Medical Test). For general candidates, the minimum
qualifying marks were 50% in the aggregate and 33% in each
subject. For Scheduled Caste/Scheduled Tribe candidates,
however, it was 40% and 30% respectively. On finding that
Scheduled Caste/Scheduled Tribe candidates equal to the number
of the seats reserved for them did not qualify on the above
standard, the Government did away with the said minimum
standard altogether. The Government’s action was challenged in
this Court but was upheld. Since it was a case under Article 15,
Article 335 had no relevance and was not applied. But in the
case of Article 16, Article 335 would be relevant and any order
on the lines of the order of the Government of Madhya Pradesh
(in Nivedita Jain) would not be permissible, being inconsistent
with the efficiency of administration. To wit, in the matter of
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appointment of Medical Officers, the Government or the Public
Service Commission cannot say that there shall be no minimum
qualifying marks for Scheduled Caste/Scheduled Tribe
candidates, while prescribing a minimum for others. It may be
permissible for the Government to prescribe a reasonably lower
standard for Scheduled Castes/Scheduled Tribes/Backward
Classes — consistent with the requirements of efficiency of
administration — it would not be permissible not to prescribe
any such minimum standard at all. While prescribing the lower
minimum standard for reserved category, the nature of duties
attached to the post and the interest of the general public should
also be kept in mind.
838. While on Article 335, we are of the opinion that there
are certain services and positions where either on account of the
nature of duties attached to them or the level (in the hierarchy) at
which they obtain, merit as explained hereinabove, alone counts.
In such situations, it may not be advisable to provide for
reservations. For example, technical posts in research and
development organisations/departments/institutions, in
specialities and super-specialities in medicine, engineering and
other such courses in physical sciences and mathematics, in
defence services and in the establishments connected therewith.
Similarly, in the case of posts at the higher echelons e.g.,
Professors (in Education), Pilots in Indian Airlines and Air
India, Scientists and Technicians in nuclear and space
application, provision for reservation would not be advisable.”
(emphasis supplied by us)
This Court observed that some relaxation has to be granted
consistent with the requirement of administration, to do social justice,
it would not be permissible not to prescribe any minimum standard at
all. This Court also observed that as to specialty in technical posts and
research development, medical engineering, defence services, physics,
and mathematics, provision for reservation would not be advisable.
(d). In Indra Sawhney (supra), the Court held that reservation could
be provided by executive order, thus:
99
“735. Shri K.K. Venugopal learned counsel for the petitioner in
writ petition No. 930 of 1990 submits that the "provision"
contemplated by clause (4) of Article 16 can be made only by
and should necessarily be made by the legislative wing of the
State and not by the executive or any other authority. He disputes
the correctness of the holding in Balaji negativing an identical
contention. He submits that since the provision made under
Article 16(4) affects the fundamental rights of other citizens,
such a provision can be made only by the Parliament/Legislature.
He submits that if the power of making the “provision” is given
to the executive, it will give room for any amount of abuse.
According to the learned counsel, the political executive, owing
to the degeneration of the electoral process, normally acts out of
political and electoral compulsions, for which reason it may not
act fairly and independently. If, on the other hand, the provision
is to be made by the legislative wing of the State, it will not only
provide an opportunity for debate and discussion in the
legislature where several shades of opinion are represented but a
balanced and unbiased decision free from the allurements of
electoral gains is more likely to emerge from such a deliberating
body. Shri Venugopal cites the example of Tamil Nadu where,
according to him, before every general election a few
communities are added to the list of backward classes, only with
a view to winning them over to the ruling party. We are not
concerned with the aspect of what is ideal or desirable but with
what is the proper meaning to be ascribed to the expression
‘provision’ in Article 16(4) having regard to the context. The use
of the expression ‘provision’ in clause (4) of Article 16 appears
to us to be not without design. According to the definition of
‘State’ in Article 12, it includes not merely the Government and
Parliament of India and Government and Legislature of each of
the States but all local authorities and other authorities within the
territory of India or under the control of the Government of India
which means that such a measure of reservation can be provided
not only in the matter of services under the Central and State
Governments but also in the services of local and other
authorities referred to in Article 12. The expression ‘Local
Authority’ is defined in Section 3(31) of the General Clauses
Act. It takes in all municipalities, Panchayats and other similar
bodies. The expression ‘other authorities’ has received extensive
attention from the court. It includes all statutory authorities and
other agencies and instrumentalities of the State
Government/Central Government. Now, would it be reasonable,
possible or practicable to say that the Parliament or the
Legislature of the State should provide for reservation of
posts/appointments in the services of all such bodies besides
providing for in respect of services under the Central/State
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Government? This aspect would become clearer if we notice the
definition of “Law” in Article 13(3)(a). It reads:
“13(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law; …”
736. The words “order”, “bye-law”, “rule” and “regulation” in
this definition are significant. Reading the definition of “State”
in Article 12 and of “law” in Article 13(3)(a), it becomes clear
that a measure of the nature contemplated by Article 16(4) can
be provided not only by the Parliament/Legislature but also by
the executive in respect of Central/State services and by the local
bodies and “other authorities” contemplated by Article 12, in
respect of their respective services. Some of the local bodies and
some of the statutory corporations like universities may have
their own legislative wings. In such a situation, it would be
unreasonable and inappropriate to insist that reservation in all
these services should be provided by Parliament/Legislature. The
situation and circumstances of each of these bodies may vary.
The rule regarding reservation has to be framed to suit the
particular situations. All this cannot reasonably be done by
Parliament/Legislature.
737. Even textually speaking, the contention cannot be accepted.
The very use of the word “provision” in Article 16(4) is
significant. Whereas clauses (3) and (5) of Article 16 — and
clauses (2) to (6) of Article 19 — use the word “law”, Article
16(4) uses the world “provision”. Regulation of service
conditions by orders and rules made by the executive was a wellknown feature at the time of the framing of the Constitution.
Probably for this reason, a deliberate departure has been made in
the case of clause (4). Accordingly, we hold, agreeing with
Balaji, that the “provision” contemplated by Article 16(4) can
also be made by the executive wing of the Union or of the State,
as the case may be, as has been done in the present case. Balaji
has been followed recently in Comptroller and Auditor-General
of India v. Mohan Lal Mehrotra. With respect to the argument of
abuse of power by the political executive, we may say that there
is adequate safeguard against misuse by the political executive of
the power under Article 16(4) in the provision itself. Any
determination of backwardness is not a subjective exercise nor a
matter of subjective satisfaction. As held herein — as also by
earlier judgments — the exercise is an objective one. Certain
objective social and other criteria have to be satisfied before any
group or class of citizens could be treated as backward. If the
executive includes, for collateral reasons, groups or classes not
101
satisfying the relevant criteria, it would be a clear case of fraud
on power.
Question 1(b):
Whether an executive order making a ‘provision’ under Article
16(4) is enforceable forthwith?
738. A question is raised whether an executive order made in
terms of Article 16(4) is effective and enforceable by itself or
whether it is necessary that the said “provision” is enacted into a
law made by the appropriate legislature under Article 309 or is
incorporated into and issued as a Rule by the President/Governor
under the proviso to Article 309 for it to become enforceable?
Mr Ram Jethmalani submits that Article 16(4) is merely
declaratory in nature, that it is an enabling provision and that it is
not a source of power by itself. He submits that unless made into
a law by the appropriate legislature or issued as a rule in terms of
the proviso to Article 309, the “provision” so made by the
executive does not become enforceable. At the same time, he
submits that the impugned Memorandums must be deemed to be
and must be treated as Rules made and issued under the proviso
to Article 309 of the Constitution. We find it difficult to agree
with Shri Jethmalani. Once we hold that a provision under
Article 16(4) can be made by the executive, it must necessarily
follow that such a provision is effective the moment it is made. A
Constitution Bench of this Court in B.S. Yadav, (Y.V.
Chandrachud, CJ, speaking for the Bench) has observed:
“Article 235 does not confer upon the High Court the
power to make rules relating to conditions of service of
judicial officers attached to district courts and the courts
subordinate thereto. Whenever it was intended to confer on
any authority the power to make any special provisions or
rules, including rules relating to conditions of service, the
Constitution has stated so in express terms. See for example
Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and
(2), 148(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3),
229(1) and (2), 234, 237 and 283(1) and (2).”
740. It would, therefore, follow that until a law is made or rules
are issued under Article 309 with respect to reservation in
favour of backward classes, it would always be open to the
Executive Government to provide for reservation of
appointments/posts in favour of Backward Classes by an
executive order. We cannot also agree with Shri Jethmalani that
the impugned Memorandums should be treated as Rules made
under the proviso to Article 309. There is nothing in them
suggesting even distantly that they were issued under the proviso
to Article 309. They were never intended to be so, nor is that the
102
stand of the Union Government before us. They are executive
orders issued under Article 73 of the Constitution read with
clause (4) of Article 16. The mere omission of a recital “in the
name and by order of the President of India” does not affect the
validity or enforceability of the orders, as held by this Court
repeatedly.”
(emphasis supplied by us)
(e). What is sought to be achieved by Articles 14 and 16 is equality
and equality of opportunity. In Indra Sawhney (supra), this Court
emphasised that founding fathers never envisaged reservation of all
seats, and 50% shall be the rule. Some relaxation may become
imperative, but extreme caution is to be exercised, and a special case
is to be made for exceeding reservation more than 50%. This Court
held:
“808. It needs no emphasis to say that the principal aim of
Articles 14 and 16 is equality and equality of opportunity and
that clause (4) of Article 16 is but a means of achieving the very
same objective. Clause (4) is a special provision — though not
an exception to clause (1). Both the provisions have to be
harmonised, keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14.
The provision under Article 16(4) — conceived in the interest of
certain sections of society — should be balanced against the
guarantee of equality enshrined in clause (1) of Article 16 which
is a guarantee held out to every citizen and to the entire society.
It is relevant to point out that Dr Ambedkar himself
contemplated reservation being "confined to a minority of seats"
(See his speech in Constituent Assembly, set out in para 693). No
other member of the Constituent Assembly suggested otherwise.
It is, thus, clear that reservation of a majority of seats was never
envisaged by the Founding Fathers. Nor are we satisfied that the
present context requires us to depart from that concept.
809. From the above discussion, the irresistible conclusion that
follows is that the reservations contemplated in clause (4) of
Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put out of
consideration certain extraordinary situations inherent in the
great diversity of this country and the people. It might happen
103
that in far-flung and remote areas the population inhabiting those
areas might, on account of their being out of the mainstream of
national life and in view of conditions peculiar to and
characteristically to them, need to be treated in a different way,
some relaxation in this strict rule may become imperative. In
doing so, extreme caution is to be exercised and a special case
made out.
811. In this connection it is well to remember that the
reservations under Article 16(4) do not operate like a communal
reservation. It may well happen that some members belonging
to, say, Scheduled Castes get selected in the open competition
field on the basis of their own merit; they will not be counted
against the quota reserved for Scheduled Castes; they will be
treated as open competition candidates.”
(emphasis supplied by us)
105. It is apparent that despite more than 72 years of attaining
independence, we are not able to provide benefits to the bottom line,
i.e., downtrodden and oppressed classes. Benefits meant to such
classes are not reaching them. The question is writ large how to
trickle down the benefits. Panchayat, Gram Sabha has been
empowered, but still, benefits are not reaching as envisaged. The right
to information system has to be strengthened at the village level. They
must know how the money meant for development has been utilised.
Transparency of administration is vital for the removal of corruption.
They are required to be motivated. They must know what is allocated
to them and how it is spent. There is a need to improve the system,
ensuring the implementation of beneficial measures.
106. It was envisaged that social disparities, economic and
backwardness should be wiped out within a period of 10 years, but
104
gradually, amendments have been made, and there is no review of the
lists nor the provisions of the reservation have come to an end.
Instead, there is a demand to increase them and to provide
reservations within the reservation. It is very hard for any elected
government to have the political will to meet with the challenges
arising out of the aforesaid scenario. By grant of privileges and
amenities, it was felt that the aspirations of socially and economically
backward classes would be met, and inequalities would diminish.
107. Reservation provided to scheduled tribes and constitution of
scheduled areas is for the reason as systems concerning way of life are
different. They were in isolation, differed in various aspects from
common civilisation such as the delivery of justice, as regards legal
system, the culture, way of life differs from the ordinary people, their
language and their primitive way of life makes them unfit to put up
with the mainstream and to be governed by the ordinary laws. It was
intended by the protective terms granted in the constitutional
provisions that they will one day be the part of the mainstream and
would not remain isolated for all time to come. The Scheduled Tribes
Order, 1950 was promulgated to include groups and communities
which were not part of social society, based on characteristic and
culture, which developed by that time. The formal education, by and
large, failed to reach them, and they remained a disadvantaged class,
105
as such required a helping hand to uplift them and to make them
contribute to the national development and not to remain part of the
primitive culture. The purpose of the constitutional provisions is not to
keep them in isolation but to make them part of the mainstream. They
are not supposed to be seen as a human zoo and source of enjoyment
of primitive culture and for dance performances. The benefits of
developments have not reached them, and they remain isolated in
various parts of the country. The social and economic upliftment and
education are necessary for tribals to make them equal.
108. Question emanating in the case is how to balance the rights of
scheduled castes and scheduled tribes. Whether providing 100%
reservation in favour of any particular class is permissible?”
109. The High Court referred to the Constituent Assembly Debates.
What was stated by Dr. Ambedkar in an answer concerning backward
community;
“A backward community is a community which is backward in
the opinion of the Government. My honourable friend Mr.T.T.
Krishnamachari asked me whether this rule will be justiciable. It
is rather difficult to give a dogmatic answer. Personally, I think
it would be a justiciable matter. If the local Government
included in this category of reservations such a large number of
seats; I think one could very well go to the Federal Court and the
Supreme Court and say that the reservation is of such a
magnitude that the rule regarding equality of opportunity has
been destroyed and the Court will then come to the conclusion
whether the local Government or the State Government has acted
in a reasonable and prudent manner.”
(emphasis supplied)
106
110. In M.R. Balaji & Ors. v. State of Mysore & Ors., (1963) Supp 1
SCR 439, this Court held that total reservations in favour of
disadvantaged sections of the society could not exceed 50% thus:
“16. It now remains to consider the report made by the Nagan
Gowda Committee appointed by the State. This report proceeds
on the basis that higher social status has generally been accorded
on the basis of caste for centuries; and so, it takes the view that
the low social position of any community is, therefore, mainly
due to the caste system. According to the Report, there are ample
reasons to conclude that social backwardness is based mainly on
racial, tribal, caste and denominational differences, even though
economic backwardness might have contributed to social
backwardness. It would thus be clear that the Committee
approached its problem of enumerating and classifying the
socially and educationally backward communities on the basis
that the social backwardness depends substantially on the caste
to which the community belongs, though it recognised that
economic condition may be a contributory factor. The
classification made by the Committee and the enumeration of the
backward communities which it adopted shows that the
Committee virtually equated the classes with the castes.
According to the Committee, the entire Lingayat community was
socially forward, and that all sections of Vokkaligas, excluding
Bhunts, were socially backward. With regard to the Muslims, the
majority of the Committee agreed that the Muslim community as
a whole should be classified as socially backward. The
Committee further decided that amongst the backward
communities two divisions should be made (i) the backward and
(ii) the More Backward. In making this distinction, the
Committee applied one test. It enquired: “Was the standard of
education in the community in question less than 50% of the
State average? If it was, the community should be regarded as
more backward; if it was not, the community should be regarded
as backward.” As to the extent of reservation in educational
institutions, the Committee’s recommendation was that 28%
should be reserved for backward and 22% for more backward. In
other words, 50% should be reserved for the whole group of
backward communities besides 15% and 3% which had already
been reserved for the Scheduled Castes and Scheduled Tribes
respectively. That is how according to the Committee, 68% was
carved out by reservation for the betterment of the Backward
Classes and the Scheduled Castes and Tribes. It is on the basis of
107
these recommendations that the Government proceeded to make
its impugned order.”
111. In State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, the Court
observed that the rule evolved in Balaji (supra) that reservations
cannot exceed 50% is merely a rule of caution.
112. In M. Nagaraj and Ors. v. Union of India and Ors., (2006) 8 SCC
212, it was held that the ceiling limit of the reservation is 50% without
which structure of equality of opportunity in Article 16 would collapse.
This Court held:
“122. We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely, backwardness,
the inadequacy of representation and overall administrative
efficiency are all constitutional requirements without which the
structure of equality of opportunity in Article 16 would
collapse.”
(emphasis supplied by us)
113. Reliance has also been placed on Union of India & Ors. v. Rakesh
Kumar & Ors., (2010) 4 SCC 50 on behalf of the respondents, which
related to a reservation in Panchayats. Considering the provisions of
Articles 243, 243D, 15(4), 16(4) and the Fifth Schedule of the
Constitution and under Part IX to extend Panchayati Raj system to
scheduled areas, it was held that post of Chairperson of Panchayat,
Scheduled Tribes in the scheduled areas cannot be put into a
disadvantaged position. Because of the peculiar conditions in those
areas, it is permissible that chairpersons of scheduled areas should be
108
exclusively from scheduled tribes only. It was also held that Article
243D envisages proportionate representation and is distinct and an
independent constitutional basis of reservation in Panchayati Raj
institutions. The reservation under Article 243D cannot be compared
with affirmative action measures under Articles 15(4) and 16(4), where
a balance is to be maintained between affirmative action measures
and merits. This Court pointed out though Articles 14, 15, and 16
provide for affirmative action measures; however, there is a need for
periodical review keeping in view the changing social and economic
conditions.
(a). The difference between Article 243D and Article 16(4) was
pointed out in Rakesh Kumar (supra) thus:
“42. Especially on the unviability of the analogy between Article
16(4) and Article 243-D, we are in agreement with a decision of
the Bombay High Court, reported as Vinayakrao Gangaramji
Deshmukh v. P.C. Agrawal, AIR 1999 Bom 142. That case
involved a fact situation where the Chairperson position in a
panchayat was reserved in favour of a Scheduled Caste woman.
In the course of upholding this reservation, it was held: (AIR p.
143, para 4)
“4. … Now, after the seventy-third and seventy-fourth
constitutional amendments, the constitution of local bodies
has been granted a constitutional protection and Article
243-D mandates that a seat be reserved for the Scheduled
Castes and Scheduled Tribes in every Panchayat and subarticle (4) of the said Article 243-D also directs that the
offices of the Chairpersons in the panchayats at the village
or any other level shall be reserved for the Scheduled
Castes, the Scheduled Tribes and women in such manner as
the legislature of a State may, by law, provide. Therefore,
the reservation in the local bodies like the Village
Panchayat is not governed by Article 16(4), which speaks
about the reservation in the public employment, but a
109
separate constitutional power directs the reservation in such
local bodies.”
43. For the sake of argument, even if an analogy between
Article 243-D and Article 16(4) was viable, a close reading of
Indra Sawhney, 1992 Supp (3) SCC 217, decision will reveal
that even though an upper limit of 50% was prescribed for
reservations in public employment, the said decision did
recognise the need for exceptional treatment in some
circumstances. This is evident from the following words (at
paras 809-10): (SCC p. 735)
“809. From the above discussion, the irresistible
conclusion that follows is that the reservations contemplated
in clause (4) of Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put
out of consideration certain extraordinary situations inherent
in the great diversity of this country and the people. It might
happen that in far-flung and remote areas the population
inhabiting those areas might, on account of their being out of
the mainstream of national life and in view of conditions
peculiar to and characteristical to them, need to be treated in a
different way, some relaxation in this strict rule may become
imperative. In doing so, extreme caution is to be exercised
and a special case made out.”
(b). The departure from adequate and proportionate representation
has been considered in Rakesh Kumar (supra) thus:
“48. There is of course a rational basis for departing from the
norms of “adequate representation” as well as “proportionate
representation” in the present case. This was necessary because it
was found that even in the areas where Scheduled Tribes are in a
relative majority, they are under-represented in the governmental
machinery and hence vulnerable to exploitation. Even in areas
where persons belonging to Scheduled Tribes held public
positions, it is a distinct possibility that the non-tribal population
will come to dominate the affairs. The relatively weaker position
of the Scheduled Tribes is also manifested through problems
such as land grabbing by non-tribals, displacement on account of
private as well as governmental developmental activities, and the
destruction of environmental resources. In order to tackle such
social realities, the legislature thought it fit to depart from the
norm of "proportional representation." In this sense, it is not our
job to second guess such policy choices.
110
56. In the context of reservations in panchayats, it can be
reasoned that the limitation placed on the choices available to
voters is an incidental consequence of the reservation policy. In
this case, the compelling State interest in safeguarding the
interests of weaker sections by ensuring their representation in
local self-government clearly outweighs the competing interest
in not curtailing the choices available to voters. It must also be
reiterated here that the 50% reservations in favour of STs as
contemplated by the first proviso to Section 4(g) of the PESA
Act were not struck down in the impugned judgment. Even
though it was argued before this Court that this provision makes
a departure from the norm of “proportionate representation”
contemplated by Article 243-D(1), we have already explained
how Article 243-M(4)(b) permits “exceptions” and
“modifications” in the application of Part IX to Scheduled Areas.
Sections 17(B)(1), 36(B)(1) and 51(B)(1) of JPRA merely give
effect to the exceptional treatment that is mandated by the PESA
Act.”
(c). This Court in Rakesh Kumar (supra) held that State of
Jharkhand was also under an obligation to account for the interests of
the other backward classes as contemplated in the Panchayati Raj Act,
thus :
“57. However, in addition to the 50% reservations in favour of
Scheduled Tribes, the State of Jharkhand is also under an
obligation to account for the interests of Scheduled Castes and
Other Backward Classes. The same has been contemplated in
Sections 17(B)(2), 36(B)(2) and 51(B)(2) of JPRA which
incorporate the standard of “proportionate representation” for
Scheduled Castes and Backward Classes in such a manner that
the total reservations do not exceed 80%. This does not mean
that reservations will reach the 80% ceiling in all the Scheduled
Areas. Since the allocation of seats in favour of Scheduled
Castes and Backward Classes has to follow the principle of
proportionality, the extent of total reservations is likely to vary
across the different territorial constituencies identified for the
purpose of elections to the panchayats. Depending on the
demographic profile of a particular constituency, it is possible
that the total reservations could well fall short of the 80% upper
ceiling. However, in Scheduled Areas where the extent of the
population belonging to the Scheduled Castes and Backward
111
Classes exceeds 30% of the total population, the upper ceiling of
80% will become operative.
58. Irrespective of such permutations, the legislative intent
behind the impugned provisions of JPRA is primarily that of
safeguarding the interests of persons belonging to the Scheduled
Tribes category. In the light of the preceding discussion, it is our
considered view that total reservations exceeding 50% of the
seats in panchayats located in Scheduled Areas are permissible
on account of the exceptional treatment mandated under Article
243-M(4)( b). Therefore, we agree with the appellants and
overturn the ruling of the High Court of Jharkhand on this
limited point.”
(emphasis supplied by us)
(d). The decision has been rendered in the context of reservation in
Panchayat for which special provisions have been made in Article 243
M(4)(b), and this Court held that the provisions of Article 243D are
distinguishable from the provisions contained in Article 16(4). It has
also been emphasised that the State cannot ignore the other backward
and scheduled caste classes.
114. In K. Krishna Murthy (Dr.) & Ors. v. Union of India & Anr., (2010)
7 SCC 202, this Court observed thus:
“53. In this respect, we are in partial agreement with one of the
submissions made by Shri M. Rama Jois that the nature of
disadvantages that restrict access to education and employment
cannot be readily equated with disadvantages in the realm of
political representation. To be sure, backwardness in the social
and economic sense does not necessarily imply political
backwardness. However, the petitioner's emphasis on the
distinction between "selection" (in case of education and
employment) and "election" (in case of political representation)
does not adequately reflect the complexities involved. It is, of
course, undeniable that in determining who can get access to
education and employment, due regard must be given to
considerations of merit and efficiency which can be measured in
112
an objective manner. Hence, admissions to educational
institutions and the recruitment to government jobs is ordinarily
done through methods such as examinations, interviews or
assessment of past performance. Since it is felt that the
applicants belonging to the SC/ST/OBC categories among others
are at a disadvantage when they compete through these methods,
a level playing field is sought to be created by way of conferring
reservation benefits.
54. In the domain of political participation, there can be no
objective parameters to determine who is more likely to get
elected to representative institutions at any level. The choices of
voters are not guided by an objective assessment of a candidate’s
merit and efficiency. Instead, they are shaped by subjective
factors such as the candidate’s ability to canvass support, past
service record, professed ideology and affiliations to organised
groups among others. In this context, it is quite possible that
candidates belonging to the SC/ST/OBC categories could
demonstrate these subjective qualities and win elections against
candidates from the relatively better-off groups. However, such a
scenario cannot be presumed in all circumstances. It is quite
conceivable that in some localised settings, backwardness in the
social and economic sense can also act as a barrier to effective
political participation and representation. When it comes to
creating a level playing field for the purpose of elections to local
bodies, backwardness in the social and economic sense can
indeed be one of the criteria for conferring reservation benefits.
63. As noted earlier, social and economic backwardness does not
necessarily coincide with political backwardness. In this respect,
the State Governments are well advised to reconfigure their
reservation policies, wherein the beneficiaries under Articles
243-D(6) and 243-T(6) need not necessarily be coterminous with
the Socially and Educationally Backward Classes (SEBCs) [for
the purpose of Article 15(4)] or even the backward classes that
are underrepresented in government jobs [for the purpose of
Article 16(4)]. It would be safe to say that not all of the groups
which have been given reservation benefits in the domain of
education and employment need reservations in the sphere of
local self-government. This is because the barriers to political
participation are not of the same character as barriers that limit
access to education and employment. This calls for some fresh
thinking and policy-making with regard to reservations in local
self-government.
113
64. In the absence of explicit constitutional guidance as to the
quantum of reservation in favour of backward classes in local
self-government, the rule of thumb is that of proportionate
reservation. However, we must lay stress on the fact that the
upper ceiling of 50% (quantitative limitation) with respect to
vertical reservations in favour of SCs/STs/OBCs should not be
breached. On the question of breaching this upper ceiling, the
arguments made by the petitioners were a little misconceived
since they had accounted for vertical reservations in favour of
SCs/STs/OBCs as well as horizontal reservations in favour of
women to assert that the 50% ceiling had been breached in some
of the States. This was clearly a misunderstanding of the
position since the horizontal reservations in favour of women are
meant to intersect with the vertical reservations in favour of
SCs/STs/OBCs, since one-third of the seats reserved for the latter
categories are to be reserved for women belonging to the same.
This means that seats earmarked for women belonging to the
general category are not accounted for if one has to gauge
whether the upper ceiling of 50% has been breached.
65. Shri Rajeev Dhavan has contended that since the context of
local self-government is different from education and
employment, the 50% ceiling for vertical reservations which was
prescribed in Indra Sawhney, 1992 Supp (3) SCC 217, cannot be
blindly imported since that case dealt with reservations in
government jobs. It was further contended that the same
decision had recognised the need for exceptional treatment in
some circumstances, which is evident from the following words:
(SCC p. 735, paras 809-10)
“809. From the above discussion, the irresistible
conclusion that follows is that the reservations
contemplated in clause (4) of Article 16 should not exceed
50%.
810. While 50% shall be the rule, it is necessary not to
put out of consideration certain extraordinary situations
inherent in the great diversity of this country and the
people. It might happen that in far-flung and remote areas
the population inhabiting those areas might, on account of
their being out of the mainstream of national life and in
view of conditions peculiar to and characteristical to them,
need to be treated in a different way, some relaxation in this
strict rule may become imperative. In doing so, extreme
caution is to be exercised and a special case made out.”
66. Admittedly, reservations in excess of 50% do exist in some
exceptional cases, when it comes to the domain of political
114
representation. For instance, the Legislative Assemblies of the
States of Arunachal Pradesh, Nagaland, Meghalaya, Mizoram
and Sikkim have reservations that are far in excess of the 50%
limit. However, such a position is the outcome of exceptional
considerations in relation to these areas. Similarly, vertical
reservations in excess of 50% are permissible in the composition
of local self-government institutions located in the Fifth
Schedule Areas.
67. In the recent decision reported as Union of India v. Rakesh
Kumar, (2010) 4 SCC 50, this Court has explained why it may be
necessary to provide reservations in favour of the Scheduled
Tribes that exceed 50% of the seats in panchayats located in the
Scheduled Areas. However, such exceptional considerations
cannot be invoked when we are examining the quantum of
reservations in favour of backward classes for the purpose of
local bodies located in general areas. In such circumstances, the
vertical reservations in favour of SCs/STs/OBCs cannot exceed
the upper limit of 50% when taken together. It is obvious that in
order to adhere to this upper ceiling, some of the States may
have to modify their legislations so as to reduce the quantum of
the existing quotas in favour of OBCs.”
115. The decision of Bombay High Court in Vinayakrao Gangaramji
Deshmukh v. P C Agrawal, AIR 1999 Bom. 142 regarding the
distinction between Articles 243D and 16(4) was affirmed. This Court
observed that some decisions in past examined validity of reservations
in local selfGovernment applying principles evolved about
employment and education. It was also observed that for scheduled
castes, scheduled tribes and other backward classes categories, the
level playing field is sought to be created by conferring reservation
benefits. In K. Krishna Murthy (supra), this Court also emphasised
that socioeconomic backwardness does not necessarily coincide with
political backwardness, which need not necessarily be envisaged
115
under Articles 15(4) and 16(4). Barriers to political participation are
not of the same character as barriers that limit access to education
and employment. Concerning vertical reservations, it was said that
they have to be made in the upper ceiling of 50%.
The 100% reservation would amount to unreasonable and unfair
and cannot be termed except as unfair and unreasonable. Thus, we
are of the considered opinion that providing 100% reservation to the
scheduled castes and scheduled tribes were not permissible. The
Governor in the exercise of the power conferred by para 5(1) of the
Fifth Schedule of the Constitution, cannot provide a 100% reservation.
116. In R. Chitralekha v. State of Mysore, AIR 1964 SC 1823, it was
laid down that reservation should not exceed 50 percent; however, a
little relaxation is permissible with great care. Reservation is an
exception to the general rule. The quantum of reservation should not
be excessive and societally injurious.
117. In AIIMS Students Union v. A.I.I.M.S., JT 2001 (7) SC 12, the
Court observed:
"Reservation, as an exception, maybe justified subject to
discharging the burden of proving justification in favour of the
class which must be educationally handicapped – the reservation
geared up to getting over the handicap. The rationale of
reservation in the case of medical students must be removal of
regional or class inadequacy or like disadvantage. Even there,
the quantum of reservation should not be excessive of societally
injurious. The higher the level of the specially the lesser the role
of reservation."
116
118. Reliance has been placed on Lingappa Pochanna Appelwar &
Ors. v. State of Maharashtra & Ors. (1985) 1 SCC 479 in which the
Court held that it is a Constitutional duty on the State to take positive
and stem measures to ensure dignity and right to life of Scheduled
Tribes. There is no quarrel with the proposition mentioned above;
however, Constitutional duty has to be discharged from a
Constitutional perspective and not in violation thereof.
119. It was argued on behalf of the respondents that the scope of
judicial review is very limited in such cases. The court may observe
due deference to the opinion of State if the material exists to support
the opinion that is formed. The decision in Indra Sawhney (supra) has
been relied upon, in which this Court considered the question and
held:
“798. Not only should a class be a backward class for meriting
reservations, it should also be inadequately represented in the
services under the State. The language of clause (4) makes it
clear that the question of whether a backward class of citizens is
not adequately represented in the services under the State is a
matter within the subjective satisfaction of the State. This is
evident from the fact that the said requirement is preceded by the
words "in the opinion of the State". This opinion can be formed
by the State on its own, i.e., on the basis of the material it has in
its possession already, or it may gather such material through a
Commission/Committee, person or authority. All that is required
is, there must be some material upon which the opinion is
formed. Indeed, in this matter the court should show due
deference to the opinion of the State, which in the present
context means the executive. The executive is supposed to know
the existing conditions in the society, drawn as it is from among
the representatives of the people in Parliament/Legislature. It
117
does not, however, mean that the opinion formed is beyond
judicial scrutiny altogether. The scope and reach of judicial
scrutiny in matters within subjective satisfaction of the executive
are well and extensively stated in Barium Chemicals v. Company
Law Board37 which need not be repeated here. Suffice it to
mention that the said principles apply equally in the case of a
constitutional provision like Article 16(4), which expressly
places the particular fact (inadequate representation) within the
subjective judgment of the State/executive.”
(emphasis supplied by us)
120. In Indra Sawhney (supra), it was observed that each situation
could not be visualised and must be left to appropriate authorities.
There can be various tests for identifying backward classes. The Court
can lay down only general guidelines. If the approach adopted by the
State is fair and adequate, then the Court has no say in the matter.
The Court held:
“780. Now, we may turn to the identification of a "backward
class of citizens." How do you go about it? Where do you begin?
Is the method to vary from State to State, region to region, and
from rural to urban? What do you do in the case of religions
where caste-system is not prevailing? What about other classes,
groups, and communities which do not wear the label of caste?
Are the people living adjacent to cease-fire line (in Jammu and
Kashmir) or hilly or inaccessible regions to be surveyed and
identified as backward classes for the purpose of Article 16(4)?
And so on and so forth are the many questions asked of us. We
shall answer them. But our answers will necessarily deal with
generalities of the situation and not with problems or issues of a
peripheral nature which are peculiar to a particular State, district
or region. Each and every situation cannot be visualised and
answered. That must be left to the appropriate authorities
appointed to identify. We can lay down only general guidelines.
783. We do not mean to suggest — we may reiterate — that the
procedure indicated hereinabove is the only procedure or
method/approach to be adopted. Indeed, there is no such thing as
a standard or model procedure/approach. It is for the authority
(appointed to identify) to adopt such approach and procedure as
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it thinks appropriate, and so long as the approach adopted by it is
fair and adequate, the court has no say in the matter. The only
object of the discussion in the preceding para is to emphasise
that if a Commission/Authority begins its process of
identification with castes (among Hindus) and occupational
groupings among others, it cannot by that reason alone be said to
be constitutionally or legally bad. We must also say that there is
no rule of law that a test to be applied for identifying backward
classes should be only one and/or uniform. In a vast country like
India, it is simply not practicable. If the real object is to discover
and locate backwardness, and if such backwardness is found in a
caste, it can be treated as backward; if it is found in any other
group, section or class, they too can be treated as backward.
*** *** ***
854. (b) Strictly speaking, appointment of a Commission under
Article 340 is not necessary to identify the other backward
classes. Article 340 does not say so. According to it, the
Commission is to be constituted ‘to investigate the conditions of
socially and educationally backward classes … and the
difficulties under which they labour and to make
recommendations as to the steps that should be taken by the
Union or any State to remove such difficulties ….” The
Government could have, even without appointing a Commission,
specified the OBCs, on the basis of such material as it may have
had before it (e.g., the lists prepared by various State
Governments) and then appointed the Commission to investigate
their conditions and to make appropriate recommendations. It is
true that Mandal Commission was constituted “to determine the
criteria for defining the socially and educationally backward
classes” and the Commission did determine the same. Even so, it
is necessary to keep the above constitutional position in mind, —
more particularly in view of the veto given to State lists over the
Mandal lists as explained in the preceding sub-para. The criteria
evolved by Mandal Commission for defining/identifying the
Other Backward Classes cannot be said to be irrelevant. Maybe
there are certain errors in actual exercise of identification, in the
nature of over-inclusion or under-inclusion, as the case may be.
But in an exercise of such magnitude and complexity, such errors
are not uncommon. These errors cannot be made a basis for
rejecting either the relevance of the criteria evolved by the
Commission or the entire exercise of identification. It is one
thing to say that these errors must be rectified by the
Government of India by evolving an appropriate mechanism and
an altogether different thing to say that on that account, the entire
exercise becomes futile. There can never be a perfect report. In
human affairs, such as this, perfection is only an ideal — not an
119
attainable goal. More than forty years have passed by. So far, no
reservations could be made in favour of OBCs for one or the
other reason in Central services though in many States, such
reservations are in force. Reservations in favour of OBCs are in
force in the States of Kerala, Tamil Nadu, Karnataka, Andhra
Pradesh, Maharashtra, Orissa, Bihar, Gujarat, Goa, Uttar
Pradesh, Punjab, Haryana and Himachal Pradesh among others.
In Madhya Pradesh, a list of OBCs was prepared on the basis of
the Mahajan Commission Report but it appears to have been
stayed by the High Court.”
(emphasis supplied by us)
It was also observed that strictly speaking, the appointment of a
Commission is not necessary to identify the other backward classes.
121. Reliance has also been placed on Barium Chemicals v. Company
Law Board AIR 1967 SC 295 to argue that the scope of judicial review
is limited. It is not for the court to find sufficiency. It is not open to
the court to adjudge the accuracy of the material to conclude.
122. Dr. Rajeev Dhawan, learned Senior Counsel has relied upon
Treatise on Constitutional Law (Fifth Edition) by Ronald D. Rotunda,
in which it has been observed that law should be tested on traditional
rational standards and Court need not review seriously suspect
classification. Following observations have been made:
“The Court, in an opinion by Justice White, found that the
retirement classification should be tested by general equal
protection principles, but that it did not violate the equal
protection guarantee. Although the parties agreed that the law
should be tested under the traditional rational basis standard,
Justice White’s opinion stressed that the federal judiciary is not
to review seriously those classifications that do not involve
fundamental rights or suspect classifications:
The Constitution presumes that, absent some reason to infer
antipathy, even improvident decisions will eventually be
120
rectified by the democratic process and that judicial
intervention is generally unwarranted no matter how unwisely
we may think a political branch has acted. Thus, we will not
overturn such a statute unless the varying treatment of
different groups or persons is so unrelated to the achievement
of any combination of legitimate purposes that we can only
conclude that the legislature’s actions were irrational.”
Applying the traditional rational standard, the position is
worsened to support the impugned G.O.
123. Reliance has also been placed on Jarnail Singh & Ors. v. Lachhmi
Narain Gupta & Ors., 2018 (10) SCC 396, in which it was observed:
“23. This brings us to whether the judgment in M. Nagaraj v.
Union of India, (2006) 8 SCC 212 needs to be revisited on the
other grounds that have been argued before us. Insofar as the
State having to show quantifiable data as far as backwardness of
the class is concerned, we are afraid that we must reject Shri
Shanti Bhushan’s argument. The reference to “class” is to the
Scheduled Castes and the Scheduled Tribes, and their
inadequacy of representation in public employment. It is clear,
therefore, that Nagaraj, (2006) 8 SCC 212, has, in unmistakable
terms, stated that the State has to collect quantifiable data
showing backwardness of the Scheduled Castes and the
Scheduled Tribes. We are afraid that this portion of the judgment
is directly contrary to the nine-Judge Bench in Indra Sawhney
(1), 1922 Supp (3) SCC 217. Jeevan Reddy, J., speaking for
himself and three other learned Judges, had clearly held:
“[t]he test or requirement of social and educational
backwardness cannot be applied to the Scheduled Castes
and the Scheduled Tribes, who indubitably fall within the
expression “backward class of citizens”.” (See SCC p. 727,
paras 796 to 797.)
Equally, Dr Justice Thommen, in his conclusion at para 323(4),
had held as follows: (SCC pp. 461-62)
“323. Summary
* * *
(4) Only such classes of citizens who are socially and
educationally backward are qualified to be identified as
Backward Classes. To be accepted as Backward Classes for
121
the purpose of reservation under Article 15 or Article 16,
their backwardness must have been either recognised by
means of a notification by the President under Article 341
or Article 342 declaring them to be Scheduled Castes or
Scheduled Tribes, or, on an objective consideration,
identified by the State to be socially and educationally so
backward by reason of identified prior discrimination and
its continuing ill effects as to be comparable to the
Scheduled Castes or the Scheduled Tribes. In the case of
the Scheduled Castes or the Scheduled Tribes, these
conditions are, in view of the notifications, presumed to be
satisfied.”
124. In Jarnail Singh (supra), this Court considered the decision of M.
Nagaraj (supra), which dealt with the promotional aspect. In that
context, the aforesaid observations were made by this Court. In the
instant case, the question involved is different. This case does not
pertain to quantifying data for promotional avenues. The question to
quantify data showing the backwardness of scheduled castes or
scheduled tribes is not germane. The decision has no application.
The question involved in the instant case is whether reservation for
scheduled tribes is permissible, but to what extent. The decision in
Jarnail Singh (supra) concerning quantifying data for reservation and
promotion does not apply to provisions of Para 5 of Schedule V of the
Constitution of India.
125. Dr. Rajeev Dhawan, learned Senior Counsel, has made available
the Annual Report of the Governor on the Administration of Scheduled
Areas in Andhra Pradesh for the year 19992000, in which question of
122
the amendment and bringing a fresh notification in place of G.O. 275,
Social Welfare (E) Dept. dated 5.11.1986 for reservation of all teacher
vacancies in the educational institutions within the Scheduled Areas
in favour of local Scheduled Tribes, was considered. It was resolved
that as against the vacant posts reserved for the local tribals in the
Scheduled Areas, if the local tribals are not available, it may be filled
by nonlocal tribals. The relevant agenda item no.3 and resolution
thereupon, which form part of the report sent to the President, is
reproduced hereunder:
“Agenda Item: 3
The amendment and bringing a fresh notification in place of
G.O.275, Social Welfare (E) Dept. dt. 5.11.1986 for reservation
of all teacher vacancies in the Educational Institutions within the
Scheduled Areas in favour of Local Scheduled Tribes.
The Commissioner of Tribal Welfare explain the above item
in detail:
Resolution:
It is decided that the vacant posts reserved for local tribals in
scheduled areas. If the local tribals are not available, the posts
may be filled by non-local tribals."
Thus, it is apparent that the Andhra Pradesh Tribes Advisory
Council took the decision described above. It is pertinent to mention
that the G.O.275 dated 5.11.1986 was struck down by the High
Court/Tribunal. The civil appeal filed in this Court was withdrawn. It
is also apparent that there were vacant posts reserved for the local
tribals in the Scheduled Areas, as they could not be filled; thus, it was
decided to fill the posts by localnon tribals.
123
The reservation of 100 per cent posts was irrational and
arbitrary and violative of Article 14 of the Constitution of India. On
the one hand, local tribals were not available, and the posts were
vacant, thereby a decision was taken to fill those posts by nonlocal
tribals, and on the other hand, a decision was taken to fill these posts
by incumbents who were residing in the area since 26.1.1950. The
minutes of the Andhra Pradesh Tribes Advisory Council formed part of
the report of the Governor, which was sent to the President under
Para Three of the Fifth Schedule.
126. The Governor, as per Para 3 of Schedule V of Constitution, has
to submit a report to the President regarding the administration of
scheduled areas annually or whenever so required by the President.
The report is required to keep track of the progress in the areas. The
report is essential for deciding to make reservations and for its review.
However, 100 percent reservation could not have been provided even
by amending Act of 1997, at the cost of the scheduled castes,
backward classes, open category and the scheduled tribes who might
have settled in the areas after 26th January 1950, as reservation had
been provided only to the tribal families residing in the district on or
before 26th January 1950. Thus, the action is discriminatory visàvis
not only concerning open category but also to the disadvantageous
sections of the society, totally vanishing the hopes of the incumbents
124
of other classes. The decision to issue G.O. Ms No.3/2000 was taken
not on verifiable data, but it was taken on the basis that there was
chronic absenteeism of nontribal teachers in the schools in scheduled
areas.
127. By providing 100 percent reservation to the scheduled tribes has
deprived the scheduled castes and other backward classes also of
their due representation. The concept of reservation is not
proportionate but adequate, as held in Indra Sawhney (supra). The
action is thus unreasonable and arbitrary and violative of provisions of
Articles 14, 15 and 16 of the Constitution of India. It also impinges
upon the right of open category and scheduled tribes who have settled
in the area after 26th January 1950. The total percentage of
reservation provided for Scheduled Tribes in the State is 6%. By
providing 100 percent reservation in the scheduled areas, the rights of
the tribals, who are not residents of the scheduled areas, shall also be
adversely affected. As per Presidential order under Article 371D, they
cannot stake their claim in other areas. The posts in other areas are to
be reduced by making a 100% reservation in a particular area.
128. The population in the scheduled areas not only includes
scheduled tribes but also open category, scheduled castes, and other
scheduled tribes settled after 26.1.1950, and they are not covered in
the notification. In Khammam district, as noted by the High Court,
125
out of 31 mandals notified as scheduled areas, the population of the
scheduled tribes is less than 50 percent, except in 9 mandals. In
those 9 mandals, where there is more than 50%, the population of the
scheduled tribes' ranges between 53 percent to 77 percent. The
percentage of the scheduled tribes' students is around 25 percent, and
the remaining students belong to other classes. Similarly, in West
Godavari district, the population of scheduled tribes as per the 1991
census was 39.31 percent, whereas the population of nontribals was
60.69 percent.
129. Concerning Kothagudem, the High Court noted that many
collieries and industries are belonging to public and private sector
undertakings and a large number of the influx of the people from
scheduled castes, scheduled tribes and backward classes had taken
place to obtain employment.
130. No law mandates that only tribal teachers can teach in the
scheduled areas; thus, the action defies the logic. Another reason
given is the phenomenal absenteeism of teachers in schools. That
could not have been a ground for providing 100 percent reservation to
the tribal teachers in the areas. It is not the case that incumbents of
other categories are not available in the areas. When a district is a
unit for the employment, the ground applied for providing reservation
for phenomenal absenteeism is irrelevant and could not have formed
126
the basis for providing 100 percent reservation. The problem of
absenteeism could have been taken care of by providing better
facilities and other incentives.
131. The reason assigned that reservation was to cover impetus in the
scheduled areas in the field of education and to strengthen
educational infrastructure is also equally bereft of substance. By
depriving opportunity to the others, it cannot be said that any impetus
could have been given to the cause of students and effective
education, and now that could have been strengthened. The provisions
of 100 percent reservation are ignoring the merit. Thus, it would
weaken the educational infrastructure and the merit and the standard
of education imparted in the schools. Educational development of
students cannot be made only by a particular class of teachers
appointed by providing reservation, ignoring merit in toto. The ideal
approach would be that teachers are selected based on merit.
132. Depriving the opportunity of employment to other categories
cannot be said to be a method of achieving social equilibrium. Apart
from that, roster points are maintained for appointment by providing
100 percent reservation, there would be a violation of the said
provision also, and it would become unworkable and the action has an
effect of taking away the rights available to the tribals settled in the
other nonscheduled areas. By providing 100 per cent reservation in
127
the scheduled areas, their right to enjoy reservation to the extent it is
available to them had also been taken away by uncalled for
distribution of reservation.
133. There were no such extraordinary circumstances to provide a
100 percent reservation in Scheduled Areas. It is an obnoxious idea
that tribals only should teach the tribals. When there are other local
residents, why they cannot teach is not understandable. The action
defies logic and is arbitrary. Merit cannot be denied in toto by
providing reservations.
134. A reservation that is permissible by protective mode, by making
it 100 percent would become discriminatory and impermissible. The
opportunity of public employment cannot be denied unjustly to the
incumbents, and it is not the prerogative of few. The citizens have
equal rights, and the total exclusion of others by creating an
opportunity for one class is not contemplated by the founding fathers
of the Constitution of India. Equality of opportunity and pursuit of
choice under Article 51A cannot be deprived of unjustly and
arbitrarily. As per the Presidential Order, the citizens of the locality
and outsiders were entitled to 15 percent of employment in the district
cadre in terms of clause 10 of Article 370(1) (d) of the Constitution.
Thus, the G.O. does not classify but deals with reservations. It was
contrary to the report sent to the President by the Governor, which
128
indicated even the posts which were reserved for scheduled tribes
teachers, they were not available as such Tribes Advisory Council
decided to fill them from other nonlocal tribals.
135. We find that G.O. Ms. No.3/2000 is wholly impermissible and
cannot be said to be legally permissible and constitutionally valid. It
can be said that action is not only irrational, but it violates the rights
guaranteed under Part III of the Constitution and is not sustainable.
In Re: Question No.3: Whether the notification merely
contemplates a classification under Article 16(1) and not
reservation under Article 16(4)?
136. Question No.3 is whether notification No.3/2000 contains
classification under Article 16(1) and does not provide reservation
under Article 16(4) of the Constitution.
137. Article 16(1) permit classification being a facet of Article 14.
Clause 4 of Article 16 is an instance of classification arising out of
Clause 1 of Article 16 of the Constitution. Articles 14, 16 (1) and 16(4)
are all facets of equality. In Indra Sawhney (supra), it was held that
Article 16(4) is not an exception to Article 16(1) but a part of equality.
This Court observed that in certain situations to treat unequal
persons equally, provide them equality:
129
“741. In M.R. Balaji v. State of Mysore, 1963 Supp 1 SCR 439, it
was held — “there is no doubt that Article 15(4) has to be read as
a proviso or an exception to Articles 15(1) and 29(2)”. It was
observed that Article 15(4) was inserted by the First Amendment
in the light of the decision in State of Madras v. Smt Champakam
Dorairajan, 1951 SCR 525, with a view to remove the defect
pointed out by this court namely, the absence of a provision in
Article 15 corresponding to clause (4) of Article 16. Following
Balaji it was held by another Constitution Bench (by majority) in
T. Devadasan v. Union of India, (1964) 4 SCR 680 — “further
this Court has already held that clause (4) of Article 16 is by way
of a proviso or an exception to clause (1)”. Subba Rao, J,
however, opined in his dissenting opinion that Article 16(4) is
not an exception to Article 16(1) but that it is only an emphatic
way of stating the principle inherent in the main provision itself.
Be that as it may, since the decision in Devadasan, it was
assumed by this Court that Article 16(4) is an exception to
Article 16(1). This view, however, received a severe setback
from the majority decision in State of Kerala v. N.M. Thomas
(1976) 2 SCC 310. Though the minority (H.R. Khanna and A.C.
Gupta, JJ) stuck to the view that Article 16(4) is an exception,
the majority (Ray, CJ, Mathew, Krishna Iyer and Fazal Ali, JJ)
held that Article 16(4) is not an exception to Article 16(1) but
that it was merely an emphatic way of stating a principle implicit
in Article 16(1). (Beg, J took a slightly different view which it is
not necessary to mention here.) The said four learned Judges —
whose views have been referred to in para 713 — held that
Article 16(1) being a facet of the doctrine of equality enshrined
in Article 14 permits reasonable classification just as Article 14
does. In our respectful opinion, the view taken by the majority in
Thomas is the correct one. We too believe that Article 16(1) does
permit reasonable classification for ensuring attainment of the
equality of opportunity assured by it. For assuring equality of
opportunity, it may well be necessary in certain situations to treat
unequally situated persons unequally. Not doing so, would
perpetuate and accentuate inequality. Article 16(4) is an instance
of such classification, put in to place the matter beyond
controversy. The “backward class of citizens” are classified as a
separate category deserving a special treatment in the nature of
reservation of appointments/posts in the services of the State.
Accordingly, we hold that clause (4) of Article 16 is not
exception to clause (1) of Article 16. It is an instance of
classification implicit in and permitted by clause (1). The speech
of Dr Ambedkar during the debate on draft Article 10(3)
[corresponding to Article 16(4)] in the Constituent Assembly —
referred to in para 693 — shows that a substantial number of
members of the Constituent Assembly insisted upon a “provision
130
(being) made for the entry of certain communities which have so
far been outside the administration”, and that draft clause (3) was
put in in recognition and acceptance of the said demand. It is a
provision which must be read along with and in harmony with
clause (1). Indeed, even without clause (4), it would have been
permissible for the State to have evolved such a classification
and made a provision for reservation of appointments/posts in
their favour. Clause (4) merely puts the matter beyond any doubt
in specific terms.
742. Regarding the view expressed in Balaji (supra) and
Devadasan (supra), it must be remembered that at that time it
was not yet recognised by this Court that Article 16(1) being a
facet of Article 14 does implicitly permit classification. Once this
feature was recognised the theory of clause (4) being an
exception to clause (1) became untenable. It had to be accepted
that clause (4) is an instance of classification inherent in clause
(1). Now, just as Article 16(1) is a facet or an elaboration of the
principle underlying Article 14, clause (2) of Article 16 is also an
elaboration of a facet of clause (1). If clause (4) is an exception
to clause (1) then it is equally an exception to clause (2).
Question then arises, in what respect if clause (4) an exception to
clause (2), if ‘class’ does not means ‘caste’. Neither clause (1)
nor clause (2) speak of class. Does the contention mean that
clause (1) does not permit classification and therefore clause (4)
is an exception to it. Thus, from any point of view, the contention
of the petitioners has no merit.”
(emphasis supplied by us)
138. In Indra Sawhney (supra), the Court held that Article 16(4) aims
at group backwardness, thus:
“792. In our opinion, it is not a question of permissibility or
desirability of such test but one of proper and more appropriate
identification of a class — a backward class. The very concept of
a class denotes a number of persons having certain common
traits which distinguish them from the others. In a backward
class under clause (4) of Article 16, if the connecting link is the
social backwardness, it should broadly be the same in a given
class. If some of the members are far too advanced socially
(which in the context, necessarily means economically and, may
also mean educationally) the connecting thread between them
and the remaining class snaps. They would be misfits in the
class. After excluding them alone, would the class be a compact
class. In fact, such exclusion benefits the truly backward.
131
Difficulty, however, really lies in drawing the line — how and
where to draw the line? For, while drawing the line, it should be
ensured that it does not result in taking away with one hand what
is given by the other. The basis of exclusion should not merely
be economic, unless, of course, the economic advancement is so
high that it necessarily means social advancement. Let us
illustrate the point. A member of backward class, say a member
of carpenter caste, goes to Middle East and works there as a
carpenter. If you take his annual income in rupees, it would be
fairly high from the Indian standard. Is he to be excluded from
the Backward Class? Are his children in India to be deprived of
the benefit of Article 16(4)? Situation may, however, be
different, if he rises so high economically as to become — say a
factory owner himself. In such a situation, his social status also
rises. He himself would be in a position to provide employment
to others. In such a case, his income is merely a measure of his
social status. Even otherwise there are several practical
difficulties too in imposing an income ceiling. For example,
annual income of Rs 36,000 may not count for much in a city
like Bombay, Delhi or Calcutta whereas it may be a handsome
income in rural India anywhere. The line to be drawn must be a
realistic one. Another question would be, should such a line be
uniform for the entire country or a given State or should it differ
from rural to urban areas and so on. Further, income from
agriculture may be difficult to assess and, therefore, in the case
of agriculturists, the line may have to be drawn with reference to
the extent of holding. While the income of a person can be taken
as a measure of his social advancement, the limit to be
prescribed should not be such as to result in taking away with
one hand what is given with the other. The income limit must be
such as to mean and signify social advancement. At the same
time, it must be recognised that there are certain positions, the
occupants of which can be treated as socially advanced without
any further enquiry. For example, if a member of a designated
backward class becomes a member of IAS or IPS or any other
All India Service, his status is society (social status) rises; he is
no longer socially disadvantaged. His children get full
opportunity to realise their potential. They are in no way
handicapped in the race of life. His salary is also such that he is
above want. It is but logical that in such a situation, his children
are not given the benefit of reservation. For by giving them the
benefit of reservation, other disadvantaged members of that
backward class may be deprived of that benefit. It is then
argued for the respondents that ‘one swallow doesn’t make the
summer’, and that merely because a few members of a caste or
class become socially advanced, the class/caste as such does not
cease to be backward. It is pointed out that clause (4) of Article
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16 aims at group backwardness and not individual
backwardness. While we agree that clause (4) aims at group
backwardness, we feel that exclusion of such socially advanced
members will make the ‘class’ a truly backward class and would
more appropriately serve the purpose and object of clause (4).
(This discussion is confined to Other Backward Classes only and
has no relevance in the case of Scheduled Tribes and Scheduled
Castes).”
(emphasis supplied by us)
(a). Concerning the interpretation of provisions in Articles 15(4) and
16(4), in Indra Sawhney (supra), this Court held that:
“787. It is true that no decision earlier to it specifically said so,
yet such an impression gained currency and it is that impression
which finds expression in the above observation. In our
respectful opinion, however, the said assumption has no basis.
Clause (4) of Article 16 does not contain the qualifying words
“socially and educationally” as does clause (4) of Article 15. It
may be remembered that Article 340 (which has remained
unamended) does employ the expression ‘socially and
educationally backward classes’ and yet that expression does not
find place in Article 16(4). The reason is obvious: “backward
class of citizens” in Article 16(4) takes in Scheduled Tribes,
Scheduled Castes and all other backward classes of citizens
including the socially and educationally backward classes. Thus,
certain classes which may not qualify for Article 15(4) may
qualify for Article 16(4). They may not qualify for Article 15(4)
but they may qualify as backward class of citizens for the
purposes of Article 16(4). It is equally relevant to notice that
Article 340 does not expressly refer to services or to reservations
in services under the State, though it may be that the
Commission appointed thereunder may recommend reservation
in appointments/posts in the services of the State as one of the
steps for removing the difficulties under which SEBCs are
labouring and for improving their conditions. Thus, SEBCs
referred to in Article 340 is only of the categories for whom
Article 16(4) was enacted: Article 16(4) applies to a much larger
class than the one contemplated by Article 340. It would, thus, be
not correct to say that ‘backward class of citizens’ in Article
16(4) are the same as the socially and educationally backward
classes in Article 15(4). Saying so would mean and imply
reading a limitation into a beneficial provision like Article 16(4).
Moreover, when speaking of reservation in appointments/posts
in the State services — which may mean, at any level
133
whatsoever — insisting upon educational backwardness may not
be quite appropriate.”
(emphasis supplied by us)
(b). Article 16(4) applies to much larger classes than is contemplated
by Article 340. Thus, it would not be correct to say that the backward
class of citizens under Article 16(4) is the same as provided as socially
and backward classes in Article 15(4). What is backward community,
has been considered in Indra Sawhney (supra) thus:
“693. Ultimately Dr. B.R. Ambedkar, the Chairman of the
Drafting Committee, got up to clarify the matter. His speech,
which put an end to all discussion and led to adopting of draft
Article 10(3), is worth quoting in extenso, since it throws light
on several questions relevant herein:
“ … [T]here are three points of view which it is necessary
for us to reconcile if we are to produce a workable
proposition which will be accepted by all. Of the three
points of view, the first is that there shall be equality of
opportunity for all citizens. It is the desire of many
Members of this House that every individual who is
qualified for a particular post should be free to apply for
that post, to sit for examinations and to have his
qualifications tested so as to determine whether he is fit for
the post or not and that there ought to be no limitations,
there ought to be no hindrance in the operation of this
principle of equality of opportunity. Another view mostly
shared by a section of the House is that, if this principle is
to be operative — and it ought to be operative in their
judgment to its fullest extent — there ought to be no
reservations of any sort for any class or community at all,
that all citizens, if they are qualified, should be placed on
the same footing of equality so far as the public services are
concerned. That is the second point of view we have. Then
we have quite a massive opinion which insists that,
although theoretically it is good to have the principle that
there shall be equality of opportunity, there must at the
same time be a provision made for the entry of certain
communities which have so far been outside the
administration. As I said, the Drafting Committee had to
produce a formula which would reconcile these three points
of view, firstly, that there shall be equality of opportunity,
134
secondly that there shall be reservations in favour of certain
communities which have not so far had a ‘proper look-in’
so to say into the administration. If Honourable Members
will bear these facts in mind — the three principles we had
to reconcile, — they will see that no better formula could
be produced than the one that is embodied in sub-clause (3)
of Article 10 of the Constitution; …. It is a generic
principle. At the same time, as I said, we had to reconcile
this formula with the demand made by certain communities
that the administration which has now — for historical
reasons — been controlled by one community or a few
communities, that situation should disappear and that the
others also must have an opportunity of getting into the
public services. Supposing, for instance, we were to
concede in full the demand of those communities who have
not been so far employed in the public service to the fullest
extent, what would really happen is, we shall be completely
destroying the first proposition upon which we are all
agreed, namely, that there shall be an equality of
opportunity. Let me give an illustration. Supposing, for
instance, reservations were made for a community or a
collection of communities, the total of which came to
something like 70% of the total posts under the State and
only 30% are retained as the unreserved. Could anybody
say that the reservation of 30% as open to general
competition would be satisfactory from the point of view of
giving effect to the first principle, namely, that there shall
be equality of opportunity? It cannot be in my judgment.
Therefore the seats to be reserved, if the reservation is to be
consistent with sub-clause (1) of Article 10, must be
confined to a minority of seats. It is then only that the first
principle could find its place in the Constitution and be
effective in operation. If Honourable Members understand
this position that we have to safeguard two things, namely,
the principle of equality of opportunity and at the same
time satisfy the demand of communities which have not
had so far representation in the State, then, I am sure they
will agree that unless you use some such qualifying phrase
as ‘backward’ the exception made in favour of reservation
will ultimately eat up the rule altogether. Nothing of the
rule will remain. That I think if I may say so, is the
justification why the Drafting Committee undertook on its
own shoulders the responsibility of introducing the word
‘backward’ which, I admit, did not originally find a place in
the fundamental right in the way in which it was passed by
this Assembly ….
135
Somebody asked me: ‘What is a backward
community’? Well, I think anyone who reads the language
of the draft itself will find that we have left it to be
determined by each local Government. A backward
community is a community which is backward in the
opinion of the Government.” (C.A.D., Vol. 7, p. 701)”
(emphasis supplied by us)
(c). In Indra Sawhney (supra), the Court held that once the
reservation has been provided to other backward classes, scheduled
castes and scheduled tribes within the purview of Article 16(4), any
further exemption, concession or preference to such class of persons
can be extended only under clause (4) of Article 16. Article 16(4) is
exhaustive of the special provisions that can be made in favour of a
backward class of citizens, that is, other backward classes, scheduled
castes, and scheduled tribes. Under Article 16(1), if the State wants to
make any reservation on whatever point, to address a specific
situation, Article 16(4) acts as a damper as there would be whittling
down of the vacancies for free competition, and that is not a
reasonable thing to do. In Indra Sawhney (supra), the Court held:
“743. x x x In our opinion, therefore, where the State finds it
necessary — for the purpose of giving full effect to the provision
of reservation to provide certain exemptions, concessions or
preferences to members of backward classes, it can extend the
same under clause (4) itself. In other words, all supplemental and
ancillary provisions to ensure full availment of provisions for
reservation can be provided as part of concept of reservation
itself. Similarly, in a given situation, the State may think that in
the case of a particular backward class it is not necessary to
provide reservation of appointments/posts and that it would be
sufficient if a certain preference or a concession is provided in
their favour. This can be done under clause (4) itself. In this
sense, clause (4) of Article 16 is exhaustive of the special
provisions that can be made in favour of “the backward class of
136
citizens”. Backward Classes having been classified by the
Constitution itself as a class deserving special treatment and the
Constitution having itself specified the nature of special
treatment, it should be presumed that no further classification or
special treatment is permissible in their favour apart from or
outside of clause (4) of Article 16.”
(emphasis supplied by us)
744. The aspect next to be considered is whether clause (4) is
exhaustive of the very concept of reservations? In other words,
the question is whether any reservations can be provided outside
clause (4) i.e., under clause (1) of Article 16. There are two
views on this aspect. On a fuller consideration of the matter, we
are of the opinion that clause (4) is not, and cannot be held to be,
exhaustive of the concept of reservations; it is exhaustive of
reservations in favour of backward classes alone. Merely
because, one form of classification is stated as a specific clause,
it does not follow that the very concept and power of
classification implicit in clause (1) is exhausted thereby. To say
so would not be correct in principle. But, at the same time, one
thing is clear. It is in very exceptional situations, — and not for
all and sundry reasons — that any further reservations, of
whatever kind, should be provided under clause (1). In such
cases, the State has to satisfy, if called upon, that making such a
provision was necessary (in public interest) to redress a specific
situation. The very presence of clause (4) should act as a damper
upon the propensity to create further classes deserving special
treatment. The reason for saying so is very simple. If
reservations are made both under clause (4) as well as under
clause (1), the vacancies available for free competition as well as
reserved categories would be a correspondingly whittled down
and that is not a reasonable thing to do.
x x x
859. We may summarise our answers to the various questions
dealt with and answered hereinabove:
(1) x x x
(2) (a) Clause (4) of Article 16 is not an exception to clause (1).
It is an instance and an illustration of the classification
inherent in clause (1). (Paras 741-742)
(b) Article 16(4) is exhaustive of the subject of reservation in
favour of backward class of citizens, as explained in this
judgment. (Para 743)
(c) Reservations can also be provided under clause (1) of Article
16. It is not confined to extending of preferences, concessions
137
or exemptions alone. These reservations, if any, made under
clause (1) have to be so adjusted and implemented as not to
exceed the level of representation prescribed for ‘backward
class of citizens’ — as explained in this Judgment. (Para 745)
860. For the sake of ready reference, we also record our answers
to questions as framed by the counsel for the parties and set out
in para 681. Our answers question-wise are:
(1) Article 16(4) is not an exception to Article 16(1). It is an
instance of classification inherent in Article 16(1). Article
16(4) is exhaustive of the subject of reservation in favour of
backward classes, though it may not be exhaustive of the
very concept of reservation. Reservations for other classes
can be provided under clause (1) of Article 16.
(2) The expression ‘backward class’ in Article 16(4) takes in
‘Other Backward Classes’, SCs, STs and may be some other
backward classes as well. The accent in Article 16(4) is upon
social backwardness. Social backwardness leads to
educational backwardness and economic backwardness. They
are mutually contributory to each other and are intertwined
with low occupations in the Indian society. A caste can be and
quite often is a social class in India. Economic criterion
cannot be the sole basis for determining the backward class
of citizens contemplated by Article 16(4). The weaker
sections referred to in Article 46 do include SEBCs referred
to in Article 340 and covered by Article 16(4).
x x x
(7) No special standard of judicial scrutiny can be predicated in
matters arising under Article 16(4). It is not possible or
necessary to say more than this under this question.”
139. In the instant case, it is not in dispute that the district is a local
area and a unit for the appointment of teachers and reservation is
provided at the district level and as per the Presidential Order under
Article 371D of the Constitution, incumbent of one district cannot
stake claim outside the district for an appointment. The reservations
for scheduled tribes are covered within the ken of Article 16(4). Thus,
no further preference or classification could have been made under
138
Article 16(1) of the Constitution of India in favour of scheduled tribes
as Article 16(4) is exhaustive of the special provisions that can be
made in favour of scheduled castes, scheduled tribes, and other
backward classes. Reservation for the other classes can be provided
under Article 16(1) and not to scheduled tribes to whom the
reservation has been provided under Article 16(4). Thus, as argued on
behalf of respondents, it cannot be said to be a case of classification
made under Article 16(1) of the Constitution of India. It is a case of
tinkering with the percentage of reservation permissible as per the
dictum of Indra Sawhney (supra). Other incumbents who are in the
reserved classes such as scheduled castes and other backward classes
and even Scheduled Tribes who have settled after 26.1.1950 beside
incumbents of open category, were deprived of the right to stake claim
to obtain public employment as against the posts in question. In the
background of the discussion made in the earlier part of the judgment,
it is crystal clear that the order passed providing 100% reservation is
arbitrary, illegal, impermissible, and unconstitutional.
140. The 100 percent reservation has been provided. It cannot be
said to be a case of classification that has been made under Article
16(1). Assuming, for the sake of argument, it is to be a case of
classification under Article 16(1), it would have been discriminatory
139
and grossly arbitrary without rationale and violative of constitutional
mandate.
141. The incumbents of various categories have the right to stake a
claim for the employment of which they have been deprived. Thus, it is
not a matter of classification. The reservation under Article 16(4) was
made. By way of 100% reservation, the employment to others was
illegally deprived and they have no chance of employment as against
the post of teachers elsewhere because of the order under Article 371D
in which district/zone is a unit. It is a clear case of tinkering with
reservation.
In Re: Question No.4: Whether the conditions of eligibility that is
the origin and cutoff date to avail the benefit of reservation in
the notification is reasonable:
142. It has been provided in the notification that the local scheduled
tribe's candidates have been defined to be scheduled tribes notified as
under Article 342 of the Constitution of India, if the candidates of
scheduled tribes themselves or their parents have been continuously
residing in the scheduled areas of the district in which they are
residing from the date i.e., 26th January 1950.
143. The condition of continuously residing in the district is ex facie
arbitrary. Article 15(1) of the Constitution provides that State shall
not discriminate inter alia on the ground of place of birth, however,
under Article 15(4), it is provided that reservation can be made in
140
favour of citizens of backward classes i.e. Scheduled Castes and
Scheduled Tribes and special provision can be carved out for their
advancement. It is also open to prescribe for conditions of eligibility
on the ground of residence in a particular area as well as on the
educational requirements but that cannot be fixed arbitrarily and
irrationally.
144. In the Presidential Order called the Andhra Pradesh Public
Employment (Organisation of Local Cadres and Regulation of Direct
Recruitment) Order, 1975, (for short, “1975 Order”) “Local Candidate”
has been defined in para 7 thus:
“7. Local Candidate:- (1) A candidate for direct recruitment to
any post shall be regarded as a local candidate in relation to a
local area.
(a) in cases where a minimum educational qualification
has been prescribed for recruitment to the post.
(i) if he has studied in an educational institution or
educational institutions in such local area for a period
of not less than four consecutive academic years
ending with the academic year in which he appeared
or, as the case may be, first appeared for the relevant
qualifying examination; or
(ii) where during the whole or any part of the four
consecutive academic years ending with the academic
year in which he appeared or as the case may be, first
appeared for the relevant qualifying examination he
has not studied in any educational institution, if he has
resided in that local area for a period of not less than
four years immediately preceding the date of
commencement of the qualifying examination in which
he appeared or as the case may be, first appeared.
(b) In cases where no minimum educational qualification
has been prescribed for recruitment to the post, if he has
resided in that local area for a period of not less than four
141
years immediately preceding the date on which the post is
notified for recruitment.
*** *** ***
*** *** ***
(2) A candidate for direct recruitment to any post who is not
regarded as a local candidate under sub paragraph (1) in relation
to any local area shall.
(a) in cases where a minimum educational qualification
has been prescribed for recruitment to the post.
(i) if he has studied in educational institutions in
the State for a period of not less than seven consecutive
academic years ending with academic year in which he
appeared or as the case may be, first appeared for the
relevant qualifying examination, be regarded as a local
candidate in relation to
(1) Such local area where he has studied
for the maximum period out of the said period
of seven years; or
(2) where the periods of his study in two or
more local areas are equal, such local areas
where he has studied last in such equal periods;
(ii) if during the whole or any part of the seven
consecutive academic years ending with the academic
years in which he appeared or as the case may be first
appeared for the relevant qualifying examination, he
has not studied in the educational institutions in any
local area, but has resided in the State during the whole
of the said period of seven years, be regarded as a local
candidate in relation to
(1) such local area where he has resided
for a maximum period out of the said period of
seven years: or
(2) where the periods of his residence in
two or more local areas are equal, such local
areas where he has resided last in such equal
periods;
(b) In cases where no minimum educational qualification
has been prescribed for recruitment to the post, if he has
resided in the State for a period of not less than seven years
immediately preceding the date on which the post is notified
for recruitment, be regarded as a local candidate in relation to
142
(i) such local area where he has resided for the
maximum period out of the said period of seven years;
or
(ii) where the periods of his residence in two or
more local areas are equal such local area where he has
resided last in such equal periods.”
145. Para 7(1) of the 1975 Order provided that a candidate shall be
regarded as a local candidate in relation to local area in cases where a
minimum qualification is prescribed for recruitment to the post i.e. a
person who has studied in such local area for a period of not less than
four consecutive academic years or if he has resided in that local area
for a period of not less than four years immediately preceding the date
of commencement of qualifying examination in which he appeared.
146. Para 7(2) of the 1975 Order provides that candidate for direct
recruitment to any post, who is not regarded as a local candidate in
relation to any local area, shall study for 7 consecutive academic years
where a minimum educational qualification has been prescribed for
recruitment to the post. Condition of Study for less than 7 consecutive
academic years is also provided for a resident for a period of seven
years with certain stipulation in para 7(2)(A)(2)(ii).
147. The G.O. in question requires candidate or the parents to reside
in the area continuously w.e.f. 26.1.1950 to date. There is no rhyme
or reason to require continuous residence for last 50 years or more. It
overlooks the rights of various other persons who might have settled
143
decades together in the area in question. It is discriminatory visàvis
to the scheduled tribes also settled in the area and it has no purpose
to be achieved and imposes restriction which was not even provided in
the Presidential Order issued under Article 371D of the Constitution of
India with respect to residential or educational requirements. Thus, it
does not lay down valid conditions. The same is fixed in highly
unreasonable and arbitrary manner and limits zone of consideration
to miniscule where an opportunity for public employment has to be
afforded to all concerned with reasonable rights.
148. Public employment envisages opportunity to all, who have been
provided reservation is by way of exception to do the compensatory
jobs. The condition above deprives the scheduled tribes who are
permanent residents of the areas and have settled after the said cutoff date. Thus, the classification created is illegal, unreasonable, and
arbitrary. Making such a provision that a person should be a resident
on or before 26th January 1950 to date is discriminatory and has the
effect of exceeding the purpose of providing the reservation. It defeats
the rights of other similar tribes who might have settled after 26th
January 1950 in the area taken care of in the Presidential Order
under Article 371D. It is violative of Articles 14, 15(1) and 16 of the
Constitution and has no rationale with the purpose sought to be
achieved. It creates a class within a class, and the classification made
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failed to qualify the parameters of Articles 14, 15 and 16 of the
Constitution of India.
REVISION OF LISTS
149. Article 341(1) provides for the inclusion of castes, races, or tribes
to be Scheduled Castes in relation to any State. Article 341(2)
empowers the Parliament to include or exclude from the list of
Scheduled Castes any caste, race or tribe. Article 341(2) is extracted
hereunder:
“341.— (1)**
(2) Parliament may by law include in or exclude from the list of
Scheduled Castes specified in a notification issued under
clause (1) any caste, race or tribe or part of or group within
any caste, race or tribe, but save as aforesaid a notification
issued under the said clause shall not be varied by any
subsequent notification.”
150. Identical provisions in relation to the inclusion of Scheduled
Tribes are provided in Article 342(1), and the Parliament's power to
amend is provided in Article 342(2). Similar provisions are contained
with respect to socially and educationally backward classes in Article
342A. Scheduled Area is defined in Para 6 of Schedule V, and the
power to amend is provided in Para 7 of Schedule V. It is also
provided in Para 3 of the Schedule V that the Governor has to send a
report to the President regarding the administration of Scheduled
Areas. The objective is to keep track of the progress in the areas. The
report is essential for deciding to make reservations and for its review.
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Oversight is required to be kept by the Constitutional authorities, and
the Parliament has been given the right to amend the list and the
Schedule.
151. In Indra Sawhney (supra), it was held that the State Lists
adopted to provide reservations by the Government are not meant to
be sacrosanct and unalterable. There may be cases where
Commissions appointed by the State may have, in their reports,
recommended modification of such lists by deletion or addition of
certain castes, communities, and classes. Where such reports are
available, the State Government is bound to act on that basis with
reasonable promptitude. If the State Government effects any
modification or alteration by way of deletions or additions, the same
shall be intimated to the Government of India forthwith. This Court
opined concerning the modifications and rectification of such list thus:
“853. At the same time, we think it necessary to make the
following clarification: It is true that the Government of India
has adopted the State lists obtaining as on August 13, 1990 for its
own purposes but that does not mean that those lists are meant to
be sacrosanct and unalterable. There may be cases where
commissions appointed by the State Government may have, in
their reports, recommended modification of such lists by deletion
or addition of certain castes, communities and classes. Wherever
such commission reports are available, the State Government is
bound to look into them and take action on that basis with
reasonable promptitude. If the State Government effects any
modification or alteration by way of deletions or additions, the
same shall be intimated to the Government of India forthwith
which shall take appropriate action on that basis and make
necessary changes in its own list relating to that State. Further, it
shall be equally open to, indeed the duty of, the Government of
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India — since it has adopted the existing States lists — to look
into the reports of such commission, if any, and pass its own
orders, independent of any action by the State Government,
thereon with reasonable promptitude by way of modification or
alternation. It shall be open to the Government of India to make
such modification/alteration in the lists adopted by way of
additions or deletions, as it thinks appropriate on the basis of the
Reports of the Commission(s). This direction, in our opinion,
safeguards against perpetuation of any errors in the State lists
and ensures rectification of those lists with reasonable
promptitude on the basis of the Reports of the Commissions
already submitted, if any. This course may be adopted de hors
the reference to or advice of the permanent mechanism (by way
of Commission) which we have directed to be created at both
Central and State level and with respect to which we have made
appropriate directions elsewhere.”
152. The Court in Rakesh Kumar (supra) emphasised need of
periodical review and held:
“37. It is a well-accepted premise in our legal system that ideas
such as “substantive equality” and “distributive justice” are at
the heart of our understanding of the guarantee of “equal
protection before the law”. The State can treat unequals
differently with the objective of creating a level-playing field in
the social, economic and political spheres. The question is
whether “reasonable classification” has been made on the basis
of intelligible differentia and whether the same criteria bears a
direct nexus with a legitimate governmental objective. When
examining the validity of affirmative action measures, the
enquiry should be governed by the standard of proportionality
rather than the standard of “strict scrutiny”. Of course, these
affirmative action measures should be periodically reviewed and
various measures modified or adapted from time to time in
keeping with the changing social and economic conditions.
Reservation of seats in panchayats is one such affirmative action
measure enabled by Part IX of the Constitution.”
(emphasis supplied by us)
153. Now there is a cry within the reserved classes. By now, there are
affluents and socially and economically advanced classes within
Scheduled Castes and Scheduled Tribes. There is voice by deprived
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persons of social upliftment of some of the Scheduled Castes/Tribes,
but they still do not permit benefits to trickle down to the needy. Thus,
there is a struggle within, as to worthiness for entitlement within
reserved classes of scheduled castes and scheduled tribes and other
backward classes.
In our opinion, it was rightly urged by Dr. Rajeev Dhawan that
the Government is required to revise the lists. It can be done
presently without disturbing the percentage of reservation so that
benefits trickle down to the needy and are not usurped by those
classes who have come up after obtaining the benefits for the last 70
years or after their inclusion in the list. The Government is dutybound to undertake such an exercise as observed in Indra Sawhney
(supra) and as constitutionally envisaged. The Government to take
appropriate steps in this regard.
154. We answer the questions referred to us thus:
Question No.1: The Governor in the exercise of powers under Para
5(1), Fifth Schedule of the Constitution, can exercise the powers
concerning any particular Act of the Parliament or the legislature of
the State. The Governor can direct that such law shall not apply to
the Scheduled Areas or any part thereof. The Governor is empowered
to apply such law to the Scheduled Area or any part thereof in the
State subject to such exceptions and modifications as he may specify
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in the notification and can also issue a notification with retrospective
effect.
Question No.1(a): The Governor is empowered under Para 5(1), Fifth
Schedule of the Constitution, to direct that any particular Act of
Parliament or the Legislature of the State, shall not apply to a
Scheduled Area or apply the same with exceptions and modifications.
The Governor can make a provision within the parameters of
amendment/ modification of the Act of Parliament or State legislature.
The power to make new laws/regulations, is provided in Para 5(2),
Fifth Schedule of the Constitution for the purpose mentioned therein,
not under Para 5(1) of the Fifth Schedule to the Constitution of India.
Question No.1(b): The power of the Governor under Para 5(1), Fifth
Schedule to the Constitution does not extend to subordinate
legislation, it is with respect to an Act enacted in the sovereign
function by the Parliament or legislature of the State which can be
dealt with.
Question No.1(c): The Governor’s power under Para 5(1) of the Fifth
Schedule to the Constitution is subject to some restrictions, which
have to be observed by the Parliament or the legislature of the State
while making law and cannot override the fundamental rights
149
guaranteed under Part III of the Constitution.
Question No.1(d): In exercise of power under Para 5(1) of the Fifth
Schedule to the Constitution of India, the Governor cannot override
the notification issued by the President in the exercise of powers
under Article 371D. The power has to be exercised harmoniously with
such an order issued under Article 371D, not in conflict thereof.
Question No.2: G.O.Ms. No.3/2000 providing for 100 per cent
reservation is not permissible under the Constitution, the outer limit
is 50 per cent as specified in Indra Sawhney (supra).
Question No.3: The notification in question cannot be treated as
classification made under Article 16(1). Once the reservation has been
provided to Scheduled Tribes under Article 16(4), no such power can
be exercised under Article 16(1). The notification is violative of Articles
14 and 16(4) of the Constitution of India.
Question No.4: The conditions of eligibility in the notification with a
cutoff date, i.e., 26.1.1950, to avail the benefits of reservation, is
unreasonable and arbitrary one.
RELIEF:
As a sequel to the quashing of G.O. Ms. No.3 of 2000, the
appointments made in excess of the permissible reservation cannot
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survive and should be set aside. However, on behalf of State and
other respondents, it was urged that appointments may not be set
aside. In the peculiar circumstances, the incumbents, who have been
appointed, cannot be said to be at fault and they belong to Scheduled
Tribes.
We cannot ignore the fact that a similar G.O. was issued by the
erstwhile State Government of Andhra Pradesh in the year 1986,
which was quashed by the State Administrative Tribunal, against
which an appeal was preferred in this Court, which was dismissed as
withdrawn in the year 1998. After withdrawal of the appeal from this
Court, it was expected of the erstwhile State of Andhra Pradesh not to
resort to such illegality of providing 100% reservation once again. But
instead, it issued G.O. Ms. No.3 of 2000, which was equally
impermissible, even if the A.P. Regulation of Reservation and
Appointment to Public Services Act, 1997 would have been amended,
in that event also providing reservation beyond 50% was not
permissible. It is rightly apprehended by appellants that the State
may again by way of misadventure, resort to similar illegal exercise as
was done earlier. It was least expected from the functionary like
Government to act in aforesaid manner as they were bound by the
dictum laid down by this Court in Indra Sawhney (supra) and other
decisions holding that the limit of reservation not to exceed 50%.
There was no rhyme or reason with the State Government to resort to
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100% reservation. It is unfortunate that illegal exercise done in 1986
was sought to be protected by yet another unconstitutional attempt by
issuing G.O.Ms. No.3 of 2000 with retrospective effect of 1986, and
now after that 20 years have passed. In the peculiar circumstance, we
save the appointments conditionally that the reorganised States i.e.
the States of Andhra Pradesh and Telangana not to attempt a similar
exercise in the future. If they do so and exceed the limit of
reservation, there shall not be any saving of the appointments made,
w.e.f. 1986 till date. We direct the respondentsStates not to exceed
the limits of reservation in future. Ordered accordingly.
Resultantly, we allow the appeals, and save the appointments
made so far conditionally with the aforesaid riders. The cost of appeal
is quantified at Rupees Five Lakhs and to be shared equally by the
States of Andhra Pradesh and Telangana.
..……………………….J.
(Arun Mishra)
..……………………….J.
(Indira Banerjee)
..……………………….J.
(Vineet Saran)
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…..…………………….J.
(M.R. Shah)
New Delhi …………………………J.
April 22, 2020 (Aniruddha Bose)
