SARWAR ALI, J.

1. I have advantage of reading in draft the judgement prepared by my learned colleagues. The contentions raised in these cases have been formulated in the judgement of my learned brother S.K. Jha, J. in paragraph 7 of the judgement I concur in the conclusion of my learned brethren Madan Mohan Prasad and S.K. Jha, JJ. with reference to the contentions formulated in paragraph 7(i) (ii) and (iii). It is only in relation to the arguments advanced in the context of reservation that I would prefer to express my views in my own words. Three of my learned colleagues have also held that the petitions are not maintainable. I have my doubts about the view so expressed, and proceed to deal with the question of reservation on the basis of the petitions being maintainable. In any event, when a decision is based on more than one ground, none of the grounds can be said to be obiter dicta.

2. To secure justice, social and economic, and equality of status and opportunity is the promise of the Constitution. This has been sought to be ensured by enacting constitutional provisions giving right to equality on the one hand, and on the other by giving constitutional mandate to the State, in Article 46 of the Constitution a provision though not legally enforceable, nevertheless fundamental in the governance of the country (1) (sic) - "to promote with special care the education and economic interest of the people and in particular of the Scheduled castes and the Scheduled tribes" and "to protect them from social injustice and all forma of exploitation (2) (sic)."

1. Preamble of the Constitution.

2. Article 37 of the Constitution.

3. Article 14 of the Constitution secures equality before the law and equal protection of the laws. Article 15(1) of the Constitution states that the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(4), however, states that nothing in Article 15(1) or Article 29(2) shall prevent the State from making any special provision for the advancement of socially and educationally backward classes of citizens, or for the Scheduled Castes and the Scheduled Tribes.

4. It cannot be gainsaid that when the Constitution came into force, a Section of the population was socially and educationally backward. The causes, according to the Backward Class Commission, of backwardness amongst the educationally and socially backward classes were :

1. traditional apathy for education on account of social and environmental conditions or occupational handicaps;

2. poverty and lack of educational institution in rural areas;

3. living in inaccessible areas;

4. lack of adequate educational aids, such as free studentship, scholarship and monetary grants;

5. lack of residential hostel facilities;

6. unemployment among the educated which acts as a damper on the desire of the members to educate their children; and

7. defective educational system which does not train students for appropriate occupations and professions (Extracted from AIR 1963 SC 649 at p. 655).

The backwardness, no doubt, is a result of historical causes T. Devadasan V/s. Union of India, AIR 1964 SC 179.

5 In order, therefore, to have real equality and not theoretical or formal equality it was, in view of the Constitution, necessary to make special provision for the backward classes, the Scheduled Castes and the Scheduled Tribes. It must, however, be not forgotten that the backwardness, social and educational, is ultimately and primarily due to poverty M.R. Balaji V/s. State of Mysore, AIR 1963 SC 649. The view of the Constitution-maker, clearly, was that if no special provision was made for the classes aforesaid, providing some leverage to the historically oppressed, they would never be able to compete with the more advanced Section of the community and such classes would remain unrepresented or marginally represented whether it be in educational institutions or in the services. Th