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SUPREME COURT OF INDIA
M.H. KANIA, C.J.I., M.N. VENKATACHALIAH, S. R. PANDIAN, Dr. T. K. THOMMEN, A.M. AHMADI, KULDIP SINGH, P.B. SAWANT, R.M. SAHAI AND B.P. JEEVAN REDDY, JJ.
Indra Sawhney etc. etc., Petitioners
Versus
Union of India and others, etc. etc., Respondents.
Writ Petns. (Civil) Nos. 930 of 1990 WITH 97 / 91,948 / 90, 966 / 90, 965 / 90, 953 / 90, 954 / 90, 971 / 90, 972 / 90, 949 / 90, 986 / 90,1079 / 90, 1106 / 90, 1158 / 90, 1071 / 90, 1069 / 90, 1077 / 90, 1119 / 90, 1053 / 90, 1102 / 90, 1120 / 90, 1112 / 90, 1276 / 90, 1148 / 90, 1105 / 90, 974 / 90, 1114 / 89, 987 / 90, 1061 / 90, 1064 / 90, 1101 / 90,1115 / 90, 1116 / 90, 1117 / 90, 1123 / 90, 1124 / 90, 1126 / 90,1130 / 90, 1141 / 90,1307 / 90, T.C.(C) Nos. 27 / 90, 28-31 / 90, 32- 33 / 90, 34 - 35 / 90, 65 / 90, 1 / 91, W.P. (C) Nos. 1081 / 90, 343 / 91, 1362 / 90, 1094 / 91, 1087 / 90, 1128 / 90, 36/91, 3 / 91, I.A. No. 1- 20 in T.C. (C) No. 27- 35 / 90 and W.P. (C) No. 11 / 92, 111 / 92, 261 / 92, D/- 16-11-1992.
#Note :- In this case the Judges of the SC differ in their views. The Majority view is taken by M.H. Kania, C.J., M.N. Venkatachaliah, S. Ratnavel Pandian, A.M. Ahmadi, P.B. Sawant and B.P. Jeevan Reddy, JJ. and the minority view by Dr. T.K. Thommen, Kuldip Singh, R.M. Sahai, JJ.
Advocates appeared:
Mr. K. K. Venugopal, Sr. Adv., Mr. Sahid, Rizvi, Mr. P.P. Tripathi, Mr. K.V. Vishwanathan, Mr. Ashok Mukhoty, Mr. B.B. Sawhney, Adv., Mrs. Indira Sawhney-in-person (in W.P. No. 930 / 90); Mr. N.A. Plakhiwala, Sr. Adv., Ms. Lira Goswami, Mr. D.N. Misra, Mr. J.B. Dadachanji, Advs. (in W.P. 94B / 90 for M/s. JBD & Co.); Mr. A. Mariarputham & Mrs. Aruna Mathur, Advs. for M/s. Arputham, Aruna & Co. in W.P. 966 / 90, Mr. R.C. Guorele, Adv. (in W.P. No. 965 / 90). Petitioners-in-person (in W.P. Nos. 953 & 954 / 90), Mr. S. Menon (in W.P. No. 971 / 90), Mrs. Shyamla Pappu, Sr. Adv., Mr. V.K. Chintta, Mr. Ajay Agarwal and Mr. D.B.Vohra, Advs. (in W.P. No. 972 / 90, Petitioner-in-person (in W.P. No. 949 / 90, Mr. O.P. Poplai, Mr. S.K. Tewari, for M/s. Singhania & Co. in W.P. No. 986/90 Mr. C.S. Srinivasa Rao, (in W.P. No. 1079 / 90, Mrs. K. Hingorani, (in W.P. No. 1106 / 90), Mr. N.H. Hingorani (in W.P. No. 974 / 90), Ms. Priya Hingorani (in W.P. No. 343 / 90), Petitioner-in-person (in W.P.No. 1158 / 90), Mr. Babir Singh Gupta, (W.P. No. 1071 / 90 & 1069 / 90), Mr. K.M. Sharma & Mr. Randhir Jain (in W.P. 1077/90), Mr. Jagdish Prasad, Mr. R.K. Gupta, Mr. Pritam Chand Kapur, (in W.P. No. 1119 / 90), Mr. L.K. Pandey, in W.P. No. 1276 / 90, Mr. Prem Sunder Jha, in W.P. No. 1053 / 90, Mr. M.M. Kashyap, in W.P. 1102 / 90, Petitioners-in-person in W.P. No. 1148 / 90 & 1120/90, Mr. P.P. Singh in W.P. No. 1105 / 90, Mr. S.M. Ashri, Petitioner-in-person in W.P. 1112 / 90, Mr. R. Mohan, in W.P. No. 1114 / 89, Mrs. Chitra Markandeya (NP) and Mr. S. Markandeya, in W.P. No. 987 / 90, Mr. P. Parmeswara Rao, Sr. Adv. and Mr. K.K. Gupta, in W.P. No. 1061 / 90, Mr. C.S. Vaidyanathan, in W.P. No. 1064 / 90, Mr. S.R. Setia, in W. P. No. 1101 / 90, Ms. Lira Goswami, for M/s. JBD & 1117 / 90, Petitioner-in-person in W.P. No. 1123 / 90, Mr. S.B. Upadhyaya, in W.P. No. 1124/90, Ms. Rani Jethmalani, Mr. P.K. Dey, Ms. Praveen Khatra and Ms. G.K. Das, in W.P. No. 1126/90 Ms. S. Chaturvedi, in W.P. No. 1130 / 90, Mr. Sushil Kumar Jain, in W.P. No. 1141 / 90, Mr. Manoj Prasad, in W.P. No. 1307/90, Mr. Mukul Mudgal, in T.C. No. 27 / 90, Ms. A. Subhashini, in T.C. No. 28-33 / 90, 34-35 / 90 and 65 / 90, Mr. P. Parmeswaran, in T.C. 1 / 91, Mrs. Urmila Sirur and Ms. Manjula Gupta, in W.P. 1081/90 and 111 / 92, Mr. S.N. Mehta, in W.P. No. 1362/90, Dr. Rajeev Dhawan, Mr. R. Sasiprabhu and Mr. M.T. George, in W.P. No. 1094 / 91, Mr. P.N. Puri, in W.P. No. 1087 / 90, Mr. C.S.S. Rao, in W.P. No. 1128 / 90, Mr. Indeevar Goodwill, in W.P. No. 36/91, Mr. N.S. Bist, in W.P. No. 3/91.,
Advocates appeared for the Respondents :
Mr. Altaf Ahmed, Addl. Solicitor General, Mr. K. Parasaran, Sr. Adv., Mrs. Anil Katiyar, Mr. B. Parthasarthy, Ms. Vijay Lakshmi Menon and Ms. A. Subhashini, in W.P. No. 930/90-U.O.I., Mr. Ram Jethmalani, Sr. Adv., Ms. Lata Krishnamoorthy, Mr. K. Jatinder Cheema, Mr. P.K. Dey, Mr. R.K. Yadav and Mr. B.B. Singh, for State of 501 Bihar, Mr. S. Sivasubramaniam, Sr. Adv. Mr. P.N. Ramalingam, Mr. V. Balaji and Mr. E.C. Agrawala, for State of Tamil Nadu, Mr. P.S. Poti, Sr. Adv., Mr. V.K. Veeran, Addl. Advocate General and Mr. T.T. Kunhikannan, for State of Kerala, Mr. S.C. Roy, Advocate-General, Ms. Mona Mehta, Mr. A.K. Panda and Mr. R.K. Mehta, for State of Orissa, Mr. A.S. Nambiar, Sr. Adv., Mrs. Shanta Vasudevan and Mr. P.K. Manohar, for State of Pondicherry, Mr. V.K.S. Choudhary, Advocate-General, Mr. Vishwajit Singh, Ms. Parenna Swarup and Mr. R.B. Misra, for State of U.P., Mr. H.S. Munjral, Mr. G.K. Bansal, for State of Punjab, Mr. Sakesh Kumar and Mr. Satish K. Agnihotri, for State of M.P. Mr. A.S. Bhasme, for State of Maharashtra, Mr. Pravir Chodhary, for State of Assam, kh. Nobin Singh and Mr. M. Veerappa, for State of Karnataka, Mr. Aruneshwar Gupta, for State of Rajasthan, Ms. Suruchi Aggarwal and Mr. T.V.S. Narasimhachari, for Stae of Andhra Pradesh, Mr. K.R. Nambir, Ms. Bina Gupta and Ms. Monika Mohil, for State of Himachal Pradesh, Ms. Indu Malhotra and Ms. Shirin Jain, for State of Haryana, Mr. D.K. Sinha, Mr. J.R. Das for the State of West Bengal in W.P. No. 1079/90 for M/s. Sinha and Das, Mrs. Veena Devi Khanna, in W.P. Nos. 948/90, 966/90, Mr. C.V. Subba Rao and Ms. A. Subhashini, in W.P. No. 965 / 90 and in Union of India, Ms. Kamini Jaiswal, in W.P. Nos. 965, 949 & 971-72 / 90, Mr. Guntur Prabhakar, in W.P. No. 949 / 90, Mrs. Hemantika Wahi, in W.P. No. 1079 / 90, Ms. Alpana Kirpal, Mr. Kailash Vasdev, Mr. Ranjan Dwivedi, Mr. M.K. Garg, Mr. A.L. Trehan, Mr. B.D. Sharma, Mr. E.M.S. Anam, Mr. Naresh K. Sharma, Mr. M.K.D. Namboodiri, Mr. R.D. Upadhyay, Mr. N. Sudhakaran, Mr. M.A. Firoz, Mr. V. Krishnamurthy, Mr. D.K. Garg, Mr. R. Karanjawala, Mrs. Nandini Gore, Mrs. Aditi Choudhary for Mrs. Karanjawala, Mr. Jagdish Prasad, Mr. R.K. Aggarwal, Mr. P.C. Kapoor, Mr. R.K. Maheshwari, Mr. K.M.K. Nair, Mr. Naresh Kaushik, Mrs. Lalitha Kaushik, Mr. N.D.B. Raju, Mr. Anis Suhrawardy, Mr. Manoj Prasad, Mr. C.L. Sahu, Mr. Attar Singh, Mr. M.K. Michael, Mr. K. Swami, Mr. Brij Bhushan, for the State of Arunachal Pradesh.
Advocates appeared as Intervener :
Mr. Vasant Sathe, Mr. R.K. Garg, Mr. N.B. Shetye, Sr. Adv., Mr. D.B. Vohra, Mr. Jitendra Sharma, Mr. S.N. Bhat, Mr. S.K. Bhattacharya, Mr. Rajesh, Mr. K.N. Rao-in-person, Mr. Ram Avadesh Singh-in-person, Dr. L.M. Khanna-in-person, Mr. Shiv Puja Singh, Dr. B.S. Chauhan, Mr. Sunil Singh, Ms. Niranjana Singh, Ms. Subhadra Chaturvedi, Mr. P.N. Puri, Mr. S.V. Krishnamurty, Mr. Mukul Gupta, and Mr. Vishaljeet, Advocates.
Constitution of India Articles 14 to 18 – Right to equality – Hindu religious thought – Founded this republic with the fourfold objective of securing to its citizens justice, liberty, equality and fraternity – Statesmen of the highest order - the like of which this country has not seen since - belonging to the fields of law, politics and public life came together to fashion the instrument of change - the Constitution of India – They did not rest content with evolving the framework of the State; they also pointed out the goal and the methodology for reaching that goal. In the preamble, they spelt out the goal and in parts III and IV, they elaborated the methodology to be followed for reaching that goal –Held, Reservation in public services either by legislative or executive action is neither a matter of policy nor a political issue – Higher courts in the country are constitutionally obliged to exercise the power of judicial review in every matter which-is constitutional in nature or has potential of constitutional repercussions – Constitutional bar under Article 16(2) against state for not discriminating on race, religion or caste is as much applicable to as they are part of the same scheme and serve same constitutional purpose of ensuring equality Identification of backward class by caste is against the Constitution – Prohibition is not mitigated by. using the word, only in cover and evolving certain socio-economic indicators and then applying it to caste as the identification then suffers from the same vice Such identification is apt to become arbitrary as well as the indicators evolved and applied to one community may be equally applicable to other community which is excluded and the backward class of which is denied similar benefit – Identification of a group or collectivity by any criteria other than caste such as, occupation cum social cum educational cum economic criteria ending in caste may not be invalid – Social and educational backward class under Article 340 being narrower in import than backward class in Article 16(4) it has to be construed in restricted manner – Order accordingly.
JUDGMENT
B. P. JEEVAN REDDY, J. —(For himself and on behalf of M. H. Kania, C.J. and M. N. Venkatachaliah, A. M. Ahmadi, JJ.) (Majority view):- Forty and three years ago was founded this republic with the fourfold objective of securing to its citizens justice, liberty, equality and fraternity. Statesmen of the highest order - the like of which this country has not seen since - belonging to the fields of law, politics and public life came together to fashion the instrument of change - the Constitution of India. They did not rest content with evolving the framework of the State; they also pointed out the goal and the methodology for reaching that goal. In the preamble, they spelt out the goal and in parts III and IV, they elaborated the methodology to be followed for reaching that goal.
2. The Constituent Assembly, though elected on the basis of a limited franchise, was yet representative of all sections of society. Above all, it was composed of men of vision, conscious of the historic but difficult task of carving an egalitarian society from out of a bewildering mass of religions, communities, castes, races, languages, beliefs and practices. They knew their country well. They understood their society perfectly. They were aware of the historic injustices and inequities afflicting the society. They realised the imperative of redressing them by -constitutional means, as early as possible - for the alternative was frightening. Ignorance, illeteracy and above all, mass poverty, they took note of. They were conscious of the fact that the Hindu religion - the religion of the overwhelming 502 Majority - as it was being practiced, was not known for its egalitarian ethos. It divided its adherents into four watertight compartments. Those outside this fourtier system (chaturvarnya) were the outcastes (Panchamas), the lowliest. They did not even belong to the caste system - ugly as its face was. The fourth, shudras, were no better, though certainly better than the Panchamas. The lowliness attached to them (Shudras and Panchamas) by virtue of their birth in these castes, unconnected with their deeds. There was to be no deliverance for them from this social stigma, except perhaps death. They were condemned to be inferior. All lowly, menial and unsavoury occupations were assigned to them. In the rural life, they had no alternative but to follow these occupations, generation after generation, century after century. It was their karma, they were told, the penalty for the sins they allegedly committed in their previous birth. Pity is they believed all this. They were conditioned to believe it. This mental blindfold had to be removed first. This was a phenomenon peculiar to this country. Poverty there has been - and there is - in every country. But none had the misfortune of having this social division --- or as some call it, degradation --- super-imposed on poverty. Poverty, low social status in Hindu caste system and the lowly occupation constituted - and do still constitute -- a vicious circle. The founding fathers were aware of all this and more.
3. Liberty, equality and fraternity was the cry of the French Revolution. It is also the motto of our Constitution, with the concept of Justice - Social, Economic and Political - the sum total of modern political thought super-added to it. Equality has been and is the single greatest craving of all human beings at all points of time. It has inspired many a great thinker and philosopher. All religious and political schools of thought swear by it, including the Hindu religious thought, if one looks to it ignoring the later crudities and distortions. Liberty of thought, expression belief, faith and worship has equally been an abiding faith with all human beings, and at all times in this country in particular. Fraternity assuring the dignity of the individual has a special relevance in the Indian context, as this judgment will illustrate in due course.
4. The doctrine of equality has many facets. It is a dyn
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