CHANDRACHUD, C. J. - (1.) THE Judgments of the court were delivered by
(2.) MY learned Brethren have expressed their respective points of view on the policy of reservations which, alas, is even 723 figuratively, a burning issue today. We were invited by the counsel not so much as to deliver judgments but to express our opinion on the issue of reservations, which may serve as a guide-line to the Commission which the Government of Karnataka proposes to appoint, for examining the question of affording better employment and educational opportunities to Scheduled Castes, Scheduled Tribes and other backward classes. A somewhat unusual exercise is being undertaken by the court in giving expression to its views without reference to specific facts. But) institutions profit by well meaning innovations. The facts will appear before the Commission and it will evolve suitable tests in the matter of reservations. I cannot resist expressing the hope that the deep thinking -and sincerity which has gone into the formulation of the opinions expressed by my learned Brethren will not go waste. The proposed Commission should give its close application to their weighty opinions. Mine is only a skeletal effort. I reserve the right to elaborate upon it, but the chances of doing so are not too bright. I would state my opinion in the shape of the following propositions: ( 1 ) The reservation in favour of Scheduled Castes and Scheduled Tribes must continue as at present, there is, without the application of a means test, for a further period not exceeding fifteen years. Another fifteen years will make it fifty years after the advent of the Constitution, a period ' reasonably long for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, isolation and humiliation. (2) The means test, that is to say, the test of economic backwardness ought to be made applicable even to the Scheduled Castes and Scheduled Tribes after the period mentioned in (1) above. It is essential that the privileged section of the underprivileged society should not be permitted to monopolise preferential benefits for an indefinite period of time. (3) Insofar as the other backward classes are concerned, two tests should be conjunctively applied for identifying them for the purpose of reservations in employment and education: One, that they should be comparable to the Scheduled Castes and Scheduled Tribes in the matter of their backwardness; and two, that they should satisfy the means test such as a State government may lay down in the context of prevailing economic conditions. (4) The policy of reservations in employment, education and legislative institutions should be reviewed every five years or so. . That will at once afford an opportunity (i) to the State to rectify distortions arising out of particular facets of the reservation policy and (ii) to the people, both backward and non-backward, to ventilate their views in a public debate on the practical impact of the policy of reservations. 724 DESAI, J. India embraced equality as a cardinal value against a background of elaborate, valued, and clearly perceived inequalities." "Article 14 guaranteed equality but the awareness of deep-rooted inequality in the society reflected in Articles 15 and 16. Fifteen months of the working of the Constitution' necessitated amplification of Article 15(3) so as to ensure that any special provisions that the State may make, for the educational, economic or social advancement of any backward class citizen, may not be challenged on the ground of being discriminatory. S. 2 thereof provided for addition to clause (4) of Article 15. For a period of three and a half decades, the unending search for identifying socially and educationally backward classes of citizens has defied the policy makers, the interpreters of the policy a reflected in statutes or executive/administrative orders and has added a spurt in the reverse direction, namely, those who attempted to move upward (Pratilom) in the social hierarchy have put the movement in reverse gear so as to move downwards (Anulom) in order to be identified as a group or class of citizens socially and educationally backward. As the awareness of concessions and benefits grows with consequent frustration on account of their non-availability - confrontation develops amongst various classes of society. The Constitution promised an egalitarian society. At the dawn of independence Indian Society was a compartmentalised society comprising groups having distinct and diverse life-styles. It was a caste-ridden stratified hierarchical society. Though this is well accepted, the concept of caste has defied a coherent definition at the hands of jurists or sociologists.
(3.) IN the early stages of the functioning of the Constitution, it was accepted without dissent or dialogue that caste furnishes a working criterion for identifying socially and educationally backward class of citizens for the purpose of Article 15(4). "This was predicated on a realistic appraisal that caste as a principle of social order has persisted over millennia if much more disorderly and asymmetrical in practice than classical Hindu socio-legal theory depicted it." Language of Article 15(4) refers to 'class' and not caste. Preferential treatment which cannot be struck down as discriminatory was to be accorded to a class, shown to be socially and educationally backward and not to the members of a caste who may be presumed to be socially and educationally backward. How do we define, ignoring the caste label, class of citizens socially and educationally backward. As we are not writing on a clean slate, let us look at judicial intervention to give shape and form to this concept of a class of citizens who are socially and educationally backward so as to merit preferred treatment or compensatory discrimination or affirmative action. 725;