THE HON'BLE SHRI JUSTICE GODA RAGHURAM AND THE HON'BLE SHRI JUSTICE...

*THE HON'BLE CHIEF JUSTICE SHRI ANIL R. DAVE THE HON'BLE SMT. JUSTICE T.MEENA KUMARI

THE HON'BLE SHRI JUSTICE B. PRAKASH RAOTHE HON'BLE SHRI JUSTICE D.S.R. VARMA

THE HON'BLE SHRI JUSTICE A. GOPAL REDDYTHE HON'BLE SHRI JUSTICE V. ESWARAIAH

ANDTHE HON'BLE SHRI JUSTICE GODA RAGHURAM

+Writ petitions Nos. 15267, 15268, 15269, 15270, 15330, 16562, 17086, 18494,

25852 of 2007 and 17679 of 2008

%08-02-2010

#1. T Muralidhar Rao and others

...PETITIONERS

VERSUS

$ 1) The State of Andhra Pradesh, rep. By its Secretary, Legislative Affairs and Justice,Law Department, Secretariat , Hyderabad

and others.

...RESPONDENT

< GIST:

> HEAD NOTE:

!Counsel for Petitioners: Sri K Ramakrishna Reddy

Sri S Sriram

Sri P Subhash

Sri D Prakash Reddy

Sri Andapalli Sanjeev Kumar

Sri V V Anil Kumar

Sri K S Murthy

Party-in-person

Sri G Vidyasagar

^Counsel for Respondents: Advocate General

Sri S Satyanarayana Prasad

Sri G Elisha

Sri K Balagopal

Sri Rahel Ahmed

Sri Mir Wajid Ali Kamil

Sri S M Subhan

Sri Syed Mahmoodal Hasan Hashmi,

(Party-in-person)

Sri M Pitchaiah

Sri Ravulapati Srinivasa Rao

Sri C Sudesh Anand

M/s. Indus Law Firm

Sri D V Nagarjuna Babu

Standing Counsel for Nagarjuna University

? Cases referred

1. AIR 1963 SC 6492. AIR 1968 SC 13793. (1972) 1 SCC 6604. 1992 Supp. (3) SCC 2175. 2004 (6) ALD 1 = 2004 (5) ALT 6346. 2005 (6) ALD 5827. (2008) 6 SCC 18. (2003) 11 SCC 1469. AIR 1958 SC 53810. AIR 1967 SC 164311. (1973) 4 SCC 22512. (2007) 2 SCC 113. (2007) 3 SCC 18414. (1994) 3 SCC 115. (2008) 3 SCC 116. AIR 1968 SC 137917. (2005) 1 SCC 39418. (2006) 8 SCC 21219. (1990) 3 SCC 22320. AIR 1960 SC 43021. AIR 1951 SC 22622. 1975 (2) SCR 761 = AIR 1975 SC 56323. (1971) 1 SCC 3824. (1973) 1 SCC 42025. 57 L Ed 2d 750 = 438 US 265 (1978)26. Judgment dated 04.8.2009 delivered in SLP (C) No.24327 of 2005 (SB Sinha &

Cyriac Joseph, JJ)27. (1980) 2 SCC 76828. AIR 1955 SC 54929. AIR 1967 SC 26630. AIR 1966 SC 194231. (1976) 2 SCC 52132. (1982) 1 SCC 3933. (2008) 7 SCC 11734. AIR 1960 SC 1208 (para 9)35. AIR 1969 SC 1 (para 4)36. 1994 Supp. (1) SCC 324 (para 137)37. 2005(6) ALD 582 (LB)38. 1992 Supp.(3) SCC 21739. 2004(6) ALD 140. 2007(4)SCC 141. (1973) 4 SCC 22542. AIR 1951 SC 22643. AIR 1958 SC 731

44. (1984) 3 SCC 65445. (1986) 2 SCC 24946. (1976) 2 SCC 31047. (1993) 1 SCC 64548. AIR 1968 SC 137949. (1972) 1 SCC 66050. AIR 1963 SC 64951. 1983 SC 13052. (2003) 11 SCC 14653. AIR 1987 AP 5354. (1976) 3 SCC 730: (1977) 1 SCR 19455. 1985 Supp SCC 714: 1985 Supp 1 SCR 35256. (2008)6 SCC 157. 2008(6) SCC 158. AIR 1973 SC 93059. (2008) 6 SCC 160. (1968) 3 SCR 595: AIR 1968 SC 137961. AIR 1973 SC 68962. 2005(6)ALD 582 (LB)63. [103] (1983) 2 AC 570 (CA)64. [104] (2002) 2 SCC 333 = AIR 2002 SC 35065. 2004 ALT (5) 63466. 2005 (6) ALD 582 (5 J LB)67. 2008 (3) SCC 24368. 1981 Supp. SCC 3869. 2006 (6) SCC 25870. AIR 1987 A.P page 5371. (2008) 6 SCC 172. 1996 (3) SCC 70973. 1997(2)SCC 45374. 2004(1) SCC 71275. 1992 Suppl.(3) SCC 21776. AIR 1967 SC 295)77. AIR 1966 SC 49778. 1981 Supple SCC 8779. 2001 (5) SCC 17580. 1973 (4) SCC 22581. 1988 (3) SCC 60982. 2005 (6) ALD 582 (LB)83. (2008) 3 SCC 24384. 1981 Supp. SCC 3885. (2006) 6 SCC 25886. 1992 Supp. (3) SCC 21787. (2008) 6 SCC 188. (2006) 8 SCC 21289. AIR 1958 SC 53890. (2003) 11 SCC 14691. 1968 2 SCR 78692. 2004 (6) ALD 1

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

MONDAY, THE EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TEN

PRESENT

THE HON'BLE CHIEF JUSTICE SHRI ANIL R. DAVE

THE HON'BLE SMT. JUSTICE T.MEENA KUMARITHE HON'BLE SHRI JUSTICE B. PRAKASH RAO

THE HON'BLE SHRI JUSTICE D.S.R. VARMATHE HON'BLE SHRI JUSTICE A. GOPAL REDDYTHE HON'BLE SHRI JUSTICE V. ESHWARAIAH

AND

THE HON'BLE SHRI JUSTICE GODA RAGHURAM

Writ Petition Nos.15267, 15268, 15269, 15270, 15330, 16562, 17086, 18494,25852 of 2007 and 17679 of 2008

Writ Petition No.15267 of 2007

Between: 1) T. Muralidhar Rao S/o. Ananthasain Rao, R/o. Esamiya Bazar,Hyderabad.2) K. Sriteja, Minor Rep. by her natural mother K. Saisri R/o. A-38, SingaporeTownship , Uppal Mandal, R.R. District.

... PETITIONERS AND

1) The State of Andhra Pradesh, Rep. by its Secretary, Legislative Affairs andJustice, Law Department, Secretariat, Hyderabad. 2) The Principal Secretary, BC (Welfare) Department, Government of AndhraPradesh, Secretariat, Hyderabad. 3) A.P. State Backward Classes Commission, Rep. by its Secretary, Chandra Vihar,Nampally, Hyderabad. 4) D. Manikya Vara Prasad Rao, MLA., S/o. late Deva Biksham, TadikondaConstituency, Guntur District. (R4 is impleaded as per court order dt. 21-8-2007 in WPMP 19706 of 2007). 5) Habeebur Rahman S/o. Abdul Wajid, 12-2-59, Winchipet, Vijayawada (R5 isimpleaded as per court order dt. 21-8-2007 in WPMP 22258 of 2007)6) Jamiat-ulma-I-Hind, A.P. rep. by its General Secretary P.Khaleeq AhmedSabir S/o. Shabbir Ahmed, 2-2-185/55/E/3, Somasunder Nagar, Bagh Amberpet,Hyderabad.(R6 is impleaded as per court order dt. 21-8-2007 in WPMP 22750 of 2007) 7) Sulthan-ul-uloom, Educational society, rep. by its Joint Secretary, Mr.Nisar Ahmed, R/o 8-2-351, Road No:3, Banjarta Hills, Hyderabad. 8) Anjuman Taraqqi. Va Falah -e-urdu, a Social organization rep.by its presidentHabibeer Rahaman, D.No.29/37/58, Surya Rao Petitioner, Vijayawada, Krishna Dt. 9) Syed Mehmoodal Hasan Hashmi S/o Late Syed Mohmmed Akber Hashmi, 54yrs, R/o 23-3-52, Sultan Shahi, Hyd. 10) Thota Rama Koteswara Rao, S/o late Koteswara Rao, 37 yrs, Advocate, R/oNalla kunta, Hyd. 11) Dr.Sadiqua Anjum, D/o MD. Jahangheer, Ag:26 yrs, OCC: Student, R/oH.No.19-3-1077/A/27, Sarfarojzung colony, Falaknama,Hyd. 12) Dr. Kausar Asra, D/O MD.Sajjad Hussain, ag:41 yrs, R/o H.No.9-4-87/b/37,Minar Colony, Towli chowky, Hyd.

13) Dr.Farra Jabeen, D/o M.A Hakeem, Ag:25 yrs, R/o H.No. 9-4-87/c/6, BehindMoghal residency, Towli Chowky, HYD. 14) Dr.Asif Haneef, S/o Md. Anif, Ag: 27 yrs ,R/o Hyderabad. 15) Dr. Sk. Nurjahan D/o S.k.m. Suhani,AG: 25 yrs R/o H.NO:7-6-8/1, Cheruvubazaar, Khammam. 16) Dr. Abdul Sattar, S/o Md.Umar, Ag:35 yrs, R/o Station Center, Kondapalli,Krishna Dt. 17) Dr. Mohd. Obedulla Quadri, S/o Md. Jafar Hussaini,Ag : 26 yrs, R/o Plot No:15Shikara Enclave, Vaisalinagar, Champapet, Hyd.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the affidavit filed herein the High Court will be pleased toissue an appropriate writ, or order or direction one in the nature of Writ ofMandamus i) declaring the A.P. Act No. 26 of 2007 and consequential G.O.Ms.No.23 BC Welfare (C2) Department dt. 7-7-2007 as unconstitutional void andinoperative, ii) G.O.Ms.No. 3, Backward Classes Welfare Department dt. 4-4-2006of respondent No.2 may be declared as arbitrary, illegal, void and inoperative, iii) adirection may be issued to respondents 2 & 3 to remove creamy layer by fixingcriteria and revision may be carried as per Section 11 of A.P. Commission forBackward Classes Act, 1993, iv) costs be awarded to the petitioners, and pass suchother order or orders appropriate in the circumstances of the case. Counsel for the petitioner : Shri K. Ramakrishna Reddi, Senior Advocate, assisted by Shri B.Mahender Reddy Counsel for respondent Nos.1 & 2 : Advocate General, Counsel for respondent No.3 : Shri S. Satyanarayana Prasad, Senior Advocate, assisted by Smt. C. Sindhu Kumari. Counsel for respondent No.4 : Shri G. Elisha Counsel for respondent No.5 : Shri K. Balagopal Counsel for respondent No.6 : Shri Rahel Ahmed Counsel for respondent No.7 : Shri Mir Wajid Ali Kamil Counsel for respondent No.8 : Shri S.M. Subhan Counsel for respondent No.9 : Shri Syed Mahmoodal Hasan Hashmi, Party-in-person Counsel for respondent No.10 : Shri M. Pitchaiah

Counsel for respondent Nos.11to 17 : Shri Ravulapati Srinivasa Rao. Writ Petition No.15268 of 2007 Between: G.Pavanakrishnasujith S/o.G.L.N.Sastry, R/o.6-6-442/2, Plot No.17C Gandhinagar,Secunderabad

... PETITIONER AND

1) State of Andhra Pradesh, rep. by its secretary Legislative Affairs andJustice Law Department, secretariat, Hyderabad. 2) The State of Andhra Pradesh, rep. by its Secretary Backward ClassesWelfare (C2) Department, Secretariat, Hyderabad. 3) The Andhra Pradesh Commission for Backward Classess rep.by itsMember secretary, 8th floor, Chandra Vihar, M.J.Road, Hyderabad. 4) The Convenor, ICET-2007(Admissions), C/o. AP State council of HigherEducation, Mahavir Marg, Hyderabad. 5) Jamait-Ulma-Hind, A.P. Rep. by its General Secretary, Mr.P. KhaleeqAhmed Sahir, S/o. Mr.P. Shabbir Ahmed, Age: 32 years, Bagh Amberpet,Hyderabad – 13. 6) Jamait – C-Ulama – C – Hind, Rayalaseema Zone, rep. by its ManagingTrustee, Hamid Hussain S/o. N.E. Shareef, 46 years, H.No.1-2-336, H.B. Colony,Kadapa – 516 004.

...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the affidavit filed herein the High Court will be pleased toissue a writ order or direction more particularly one in the nature of writ ofmandamus declaring the A.P. Act No. 26 of 2007 issued by the 1st respondentaccepting the recommendations and report submitted by the 3rd respondent inpursuance of the reference of the 2nd respondent dated 17.4.2007 and theconsequential G.O.Ms. No. 23 dated 7.7.2007 issued by the 2nd respondent asunconstitutional offending Articles 14, 15 and 16 of the Constitution of India andconsequently to direct the respondents to forbear from enforcing the impugned Act26 of 2007 and consequential G.O.Ms.No.23 dated 7.7.2007. Counsel for the petitioner : Shri S. Sriram Counsel for respondent Nos1 & 2: Advocate General Counsel for respondent No.3 : Shri S. Satyanarayana Prasad,

Senior Advocate, assisted by Smt. C. Sindhu Kumari. Counsel for respondent No.4 : Shri C. Sudesh Anand Counsel for respondent No.5 : Shri Rahel Ahmed Counsel for respondent No.6 : M/s.Indus Law Firm Writ Petition No.15269 of 2007 Between: D. Karunakar S/o Late Sri Manikyam, R/o 13-6-457/77, Gayathrinagar, Shiv Bagh,Karvan, Hyderabad.

... PETITIONERAND

1) State of Andhra Pradesh repby its Secretary Legislative Affairs, andJustice, Law Department, Secretariat, Hyderabad. 2) The State of Andhra Pradesh, rep by its Secretary, Backward ClassesWelfare (C2) Department, Secretariat, Hyderabad. 3) The Andhra Pradesh Commission for Backward Classes rep by MemberSecretary, 8th Floor, Chandra Vihar, MJ Road, Hyderabad. 4) Jamait – C-Ulama – C – Hind, Rayalaseema Zone, rep. by its ManagingTrustee, Hamid Hussain S/o. N.E. Shareef, 46 years, H.No.1-2-336, H.B. Colony,Kadapa – 516 004.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the affidavit filed herein the High Court will be pleased toissue a Writ, order or direction more particularly one in the nature of Writ ofMandamus declaring the A.P. Act No.26 of 2007 issued by the 1st respondentaccepting the recommendations and report submitted by the 3rd respondent inpursuance of the reference of the 2nd respondent dt 17-4-2007 and theconsequential G.O.Ms. No. 23 dated 7-7-2007 issued by the 2nd respondent, asunconstitutional, offending Articles 14, 15 and 16 of the Constitution of India andconsequently to direct the respondents to forbear from enforcing the impugned A.P.Act No.26 of 2007 and consequential G.O.Ms.No. 23, dated 7-7-2007. Counsel for the petitioner : Shri P. Subhash Counsel for respondent Nos.1 & 2: Advocate General Counsel for respondent No.3 : Sri S. Satyanarayana Prasad, Senior Advocate, assisted by Smt. C. Sindhu Kumari.

Counsel for respondent No.4 : M/s.Indus Law Firm Writ Petition No.15270 of 2007 Between: R.Venu Kumar S/o.Tirupathi, R/o.8-4-370/205, Rajnagar, Borabanda, Hyderabad.

... PETITIONER AND

1) State of Andhra Pradesh, rep. by its SEcretary Legislative Affairs andJustice, Law Department, Secretariat, Hyderabad. 2) The State of Andhra Pradesh, rep. by its SEcretary Backward ClassesWelfare (C2) Department, Secretariat, Hyderabad. 3) The Andhra Pradesh Commission for Backward Classes, rep. by itsMember Secretary, 8th floor, Chandra Vihar, M.J. Road, Hyderabad. 4) NTR University of Health Sciences, rep. by its Registrar, Vijayawada. 5) Jamait – C-Ulama – C – Hind, Rayalaseema Zone, rep. by its ManagingTrustee, Hamid Hussain S/o. N.E. Shareef, 46 years, H.No.1-2-336, H.B. Colony,Kadapa – 516 004.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the affidavit filed herein the High Court will be pleased toissue a writ, order or direction more particularly one in the nature of Writ ofMandamus declaring the A.P. Act No.26 of 2007 issued by the 1st respondentaccepting the recommendations and report submitted by the 3rd respondent inpursuance of the reference of the 2nd respondent dt. 17.4.2007 and theconsequential G.O.Ms.No.23, dated 7.7.2007 issued by the 2nd respondent, asunconstitutional, offending Articles 14, 15 and 16 of the Constitution of India andconsequently to direct the respondents to forbear from enforcing the impugnedOrdinance A.P. Act No.26 of 2007 and consequential G.O.Ms.No.23, dated7.7.2007. Counsel for the petitioner : Shri D. Prakash Reddy, Senior Advocate, assisted by Shri P. Radhive Reddy Counsel for respondent Nos.1 & 2: Advocate General Counsel for respondent No.3 : Shri S. Satyanarayana Prasad, Senior Advocate, assisted by Smt. C. Sindhu Kumari.

Counsel for respondent No.4 : Shri D.V. Nagarjuna Babu Counsel for respondent No.5 : M/s.Indus Law Firm. Writ Petition No.15330 of 2007 Between: M.Prathyusha Reddy D/o. M.Pratap Reddy, R/o.Quarter No.3, Type III, BalajinagarTelecom colony,Sangareddy, Medak District, rep.by its natural guardian and fatherM.Pratap Reddy, S/o.Durga Reddy.

... PETITIONER

AND 1) State of Andhra Pradesh, rep. by its Secretary Legislative Affairs andJustice , Law Department, Secretariat,Hyderabad. 2) The State of Andhra Pradesh, rep. by its Secretary Backward ClassesWelfare (C2) Department, Secretariat, Hyderabad. 3) The Andhra Pradesh Commission for Backward Classes rep. by itsMember Secretary, 8th floor, Chandra Vihar, M.J.Road, Hyderabad. 4) The NTR University of Health Sciences, Vijayawada Krishna District, rep.by its Registrar.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the affidavit filed herein the High Court will be pleased toissue a writ order or direction more particularly one in the nature of writ ofmandamus declaring the A.P. Act No.26 of 2007 issued by the 1st respondentaccepting the recommendations and report submitted by the 3rd respondent inpursuance of the reference of the 2nd respondent dated 17.4.2007 and theconsequential G.O.Ms.No.23 dated 7.7.2007 issued by the 2nd respondent asunconstitutional offending Articles 14,15 and 16 of the Constitution of India andconsequently to direct the respondents to forbear from enforcing the impugned A.P.Act No.26 of 2007 and consequential G.O.Ms.No.23 dated 7.7.2007.Counsel for the petitioner : Shri Andapalli Sanjeev Kumar Counsel for respondent Nos.1 & 2: Advocate General Counsel for respondent No.3 : Shri S. Satyanarayana Prasad, Senior Advocate, assisted by Smt. C. Sindhu Kumari.

Counsel for respondent No.4 : Shri D.V. Nagarjuna Babu

Writ Petition No.16562 of 2007 Between: Mandava Rishitha D/o.Koteswara Rao, Rep. by her father and Natural GuardianKoteswara Rao, R/o.Penamuluru Post & Mandal, Krishna District.

… PETITIONER

AND 1) Registrar, Dr.NTR University of Health Sciences, Vijayawada. 2) Principal Secretary to Govt. (Health, Medical & Family Welfare (E1) Department,Govt. of Andhra Pradesh, Secretariat Buildings, Hyderabad. 3) Secretary to Govt. Youth Advancement, Tourism & Culture (Sports) Dept., Govt.of A.P., Secretariat Buildings, Hyderabad.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the Affidavit filed herein the High Court will be pleased toissue a writ, order or direction more particularly one in the nature of Writ ofMandamus declaring the G.O.Ms.No. 231, Health, Medical and Family Welfare (E1)Department dt. 11.07.2007 issued by the 2nd respondent, as illegal arbitrary,without jurisdiction, contrary to Art. 15 of the Constitution of India and set aside thesame. Counsel for the Petitioner: Shri V.V. Anil Kumar Counsel for Respondent No.1: Shri D.V. Nagarjuna Babu Counsel for Respondent Nos.2 & 3: Advocate General Writ Petition No.17086 of 2007 Between: B.Sravanthi D/o.Sushil kumar, R/o.1-29, Champapeta, Hyderabad

... PETITIONER

AND

1) State of Andhra Pradesh, rep. by its Secretary legislative Affairs andJustice, Law Department, Secretariat,Hyderabad. 2) The State of AP., rep.by its Secretary, Backward classes Welfare(C2)Department, secretariat,Hyderabad.

3) The Andhra Pradesh Commission for Backward classes rep. by itsMember Secretary, 8th Floor, Chandr Vihar, M.J.Road, Hyderabad. 4) The Convenor, LAWCET-2007(Admissions) C/o. Nagarjuna University,Guntur.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the affidavit filed herein the High Court will be pleased toissue a writ order or direction more particularly one in the nature of writ ofmandamus declaring the A.P. Act No.26 of 2007 issued by the 1st respondentaccepting the recommendations and report submitted by the 3rd respondent inpursuance of the reference of the 2nd respondent dated 17.4.2007 and theconsequential G.O.Ms.No.23 dated 7.7.2007 issued by the 2nd respondent asunconstitutional offending Articles, 14,15 and 16 of the Constitution of India andconsequently to direct the respondents to forbear from enforcing the impugned A.P.Act No.26 of 2007 and consequential G.O.Ms.No.23 dated 7.7.2007. Counsel for the Petitioner: Shri K.S. Murthy Counsel for Respondent Nos.1 & 2: Advocate General Counsel for Respondent No.3: Shri S. Satyanarayana Prasad, Senior Advocate, assisted by Smt. C. Sindhu Kumari Counsel for Respondent No.4: Standing Counsel for Nagarjuna University Writ Petition No.18494 of 2007 Between: Dr. P.S.N. Murthy S/o.Late Surya Subrahmanyam, Hindu, Visakhapatnam.

... PETITIONER AND

1) State of Andhra Pradesh, Rep. by its Secretary, Legislative Affairs, andJustice, Law Department, Secretariat Buildings, Hyderabad. 2) The State of Andhra Pradesh, Rep. by its Secretary, Backward ClassesWelfare, Secretariat Buildings, Hyderabad. 3) The A.P. Commission for Backward Classes, 8th Floor, Chandra Vihar,M.J. Road, Nampally, Hyderabad, Rep. by its Member Secretary.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in the

circumstances stated in the affidavit filed herein the High Court will be pleased toissue a writ order or direction more particularly on in the nature of writ of Mandamusdeclaring the A.P. Act No.26 of 2007 issued by the 1st Respondent accepting therecommendations and report submitted by the 3rd Respondent in pursuance of thereference of the 2nd Respondent dt. 17-4-2007 and the consequential G.O.Ms.No.23 dt. 7-7-2007 and consequential Act No.45 of 2007 issued by the 2ndRespondent, as unconstitutional offending Articles 14, 15 and 16 of the Constitutionof India and consequently to direct the respondents to forbear from enforcing theimpugned A.P. Act No.26 of 2007 and consequential G.O.Ms.No. 23 dt. 7-7-2007. Counsel for the Petitioner: Party-in-Person Counsel for Respondent Nos.1 & 2: Advocate General Counsel for Respondent No.3: Shri S. Satyanarayana Prasad, Senior Advocate, assisted by Smt. C. Sindhu Kumari Writ Petition No.25852 of 2007 Between: K.Kondala Rao, "BC Mitrulu" (An unregistered Organisation) & Advocate, R/o 404,Saikrishna Apartments, 1-10-123, Ashoknagar, Hyderabad-20.

... PETITIONERAND

1) State of Andhra Pradesh represented by its Secretary, Legislative Affairs &Justice, Law Department, Secretariat, Hyderabad. 2) The Principal Secretary to Government, Backward Classes WelfareDepartment, Secretariat, Hyderabad. 3) The Andhra Pradesh Commission for Backward Classes represented byits Secretary, 8th Floor, Chandra Vihar, Nampally, Hyderabad.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the affidavit filed herein the High Court will be pleased toissue an appropriate writ or order or direction, one in the nature of writ of mandamusi) declaring A.P. Act No.26 of 2007 dt.13-08-2007 (An Act to provide reservation toSocially and Educationally Backward Classes of Muslims in the educationalinstitutions and public employment for their upliftment and for matters connectedtherewith and incidental thereto) as unconstitutional, void and inoperative and ii)declaring G.O.Ms.No.23 BC Welfare (C2) Department dt.07-07-2007 asunconstitutional, void and inoperative and awarding costs to the petitioner.

Counsel for the Petitioner: Party-in-Person Counsel for Respondent Nos.1 & 2: Advocate General Counsel for Respondent No.3: Shri S. Satyanarayana Prasad, Senior Advocate, assisted by Smt. C. Sindhu Kumari Writ Petition No.17679 of 2008 Between: J. Anusha D/o. J. Venkateshwar Reddy, R/o. H.No.6-1-287/B, Padmarao Nagar,Secunderabad.

... PETITIONER

AND

1) Government of Andhra Pradesh, rep. by Secretary, Legislative Affairs andJustice, Law Department, Secretariat, Hyderabad.2) The State of Andhra Pradesh, rep. by Secretary, Backward ClassesWelfare C-2 Department, Secretariat, Hyderabad.3) A.P. Commission for Backward Classes, rep. by its Member Secretary, 8thfloor, Chandravihar, M J Road, Hyderabad.4) Dr. NTR University of Health Sciences, Andhra Pradesh, Vijayawada, rep.by its Registrar.

...RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in thecircumstances stated in the affidavit filed herein the High Court will be pleased toissue an order direction or writ particularly one in the nature of Writ of Mandamus orany other appropriate writ to declare the A.P. Act No. 26 of 2007 published in A.P.Gazette dated 13.08.2007 accepting the recommendations and report submitted bythe 3rd respondent in pursuance of the reference of the 2nd respondent dt.17.04.2007 as unconstitutional, offending Articles 14, 15 and 16 of the Constitutionof India and consequently to direct the respondents to forbear from enforcing theimpugned A.P. Act No. 26 of 2007 published in A.P. Gazette dated 13.08.2007. Counsel for the Petitioner: Shri G. Vidyasagar Counsel for Respondent Nos.1 & 2: Advocate General Counsel for Respondent No.3: Shri S. Satyanarayana Prasad, Senior Advocate, assisted by Smt. C. Sindhu Kumari

Counsel for Respondent No.4: Shri D.V. Nagarjuna Babu The Court made the following:

COMMON ORDER: (per the Hon’ble Shri Anil R. Dave, Chief Justice and on behalf of Shri A.Gopal Reddy, Shri V. Eshwaraiah and Shri G. Raghuram, Justices)

1. The cases on hand project another facet of reservations to Backward

Classes in the State of Andhra Pradesh. The Legislature of the State of Andhra

Pradesh has enacted “The Andhra Pradesh Reservation in favour of Socially and

Educationally Backward Classes of Muslims Act, 2007” (A.P. Act 26 of 2007)

(hereinafter referred to as ‘the 2007 Act’) for providing reservations to the extent of

4% of total seats to backward classes among Muslims in the matter of admissions in

educational institutions and in public employment for their upliftment. We,

therefore, feel it expedient to briefly trace the history of reservations in the State.

Background of reservations in Andhra Pradesh

2. Even before the State of Andhra Pradesh had been formed, reservations to

backward classes in educational institutions and in public services had been

provided under G.O. Ms. No. 110 dated 30th May, 1953 to 112 Castes by the State

of Nizam. In the year 1963, when the State of Andhra Pradesh had issued a

government order providing for reservation of seats in government medical

colleges, this Court had nullified the same on the ground that it was violative of

Articles 15 and 29 (2) of the Constitution and it had been provided without applying

the criteria laid down by the Hon'ble Supreme Court in M.R. Balaji v. State of

Mysore[1]. Subsequently, in the year 1964, a list of 112 castes or communities

were identified as backward. The validity of the said list was challenged before this

Court by filing writ petitions on the ground that the list so prepared was solely on the

basis of caste. The writ petitions were allowed by this Court by striking down the

reservation for Backward Classes in professional colleges. The invalidation was

upheld by the Hon'ble Supreme Court in State of A.P. v. P. Sagar[2].

3. Thereafter, the State of Andhra Pradesh had appointed a multi-member

Commission, initially headed by Justice Manohar Prasad, former Chief Justice of

this Court and subsequently by Shri Anantaraman, ICS to investigate into the claims

made by certain groups claiming to be belonging to backward classes. In

pursuance of the report of Anantaraman Commission, the State issued

G.O.Ms.No.1793, Education Department, dated 23.9.1970 providing reservation to

Backward Classes under four distinct groups viz., Group A, B, C & D with separate

quota for each group. However, subsequently, the government deleted two castes

and added 3 more castes to the original list. The said action was challenged in this

Court and the same was quashed by this Court. The Hon'ble Supreme Court, in

State of A.P. v. U.S.V. Balaram[3], however, upheld the above Government Order,

and the list of backward classes.

4. In 1981 – 82, Muriladhara Rao Commission had recommended that the

policy of reservations should be continued for 25 years with periodic re-

assessments. Muralidhara Rao Commission had also recommended that some

concessions be given to Socially and Educationally Backward Classes (SEBCs) in

the State of Andhra Pradesh.

5. The issue of reservation had raised a serious controversy in 1990s which

finally led to the historic Mandal Case – Indra Sawhney v. Union of India[4]

(hereinafter referred to as “Indra Sawhney I”). The law laid down by the Hon’ble

Supreme Court in Indra Sawhney I will be referred to hereinafter in the course of

the judgment.

6. In 1993, the respondent State had enacted the

Andhra Pradesh Commission for Backward Classes Act, 1993 (hereinafter referred

to as, 'the 1993 Act') and in the year 1994, the Andhra Pradesh Commission for

Backward Classes (hereinafter referred to as ‘the Commission’) was constituted on

permanent basis so as to examine the requests for inclusion of any class of citizens

as a backward class in the list of backward class of citizens and to hear the

complaints in relation to inclusion or exclusion of any backward class from such a

list and to give suitable advice to the Government in relation thereto.

7. On 25.8.1994, the Backward Classes Welfare (P.II) Department, vide

G.O.Ms.No.30, referred the requests of persons belonging to certain castes and

communities, including the Muslim community, to the Commission for their inclusion

in the list of Backward Classes. The same is still pending with the Commission.

8. In the year 2000, the Government of Andhra Pradesh extended the

reservations, which were proposed to be implemented only for ten years initially, till

the revision that might be suggested by the Commission. Pending revision by the

Commission, on 4.6.2004, the respondent State, vide G.O.Ms.No.15, directed the

Commissionerate of Minority Welfare to submit a report on the social, economic and

educational backwardness of the Muslim community in the State so as to opine

whether the community could be included in the list of backward classes so as to

give them the benefit under Articles 15 (4) and 16 (4) of the Constitution. On the

basis of a report dated 5.7.2004 submitted by the Commissionerate, the

Government issued G.O.Ms.No.33, Backward Classes Welfare (C-2) Department,

dated 12.7.2004 providing 5% reservation to the entire Muslim community in the

State of Andhra Pradesh in educational institutions and public employment, over

and above the reservations provided to the backward classes, by treating them as

Backward Class and by including them in the existing list of Backward Classes as

Category ‘E’. When the said G.O. was challenged, a Larger Bench of this Court in

T. Muralidhar Rao v. State of A.P.[5], set aside the same by holding that

consultation with the Commission, before undertaking any revision of the Backward

Classes List, was mandatory under the provisions of the 1993 Act and yet there was

no such consultation. It was also held that in the absence of any criteria laid down

for ascertaining backwardness, the entire report of the Commissionerate was bad in

law and that the approach adopted by the Sate was improper and invalid. It was

also held that the impugned Government Order amounted to providing reservation

on the basis of religion, which is prohibited by Articles 15 (1) and 16 (2) of the

Constitution. Thus, it was held that for the afore-stated and other reasons stated in

the said judgment, Muslims could not have been classified as persons belonging to

Backward Class either for the purpose of Article 15 (4) or 16 (4). The Government

Order was struck down.

9. Subsequently, the matter was referred by the State to the Commission vide

G.O.Ms.No.57, Backward Classes Welfare (C-2) Department, dated 18.11.2004

seeking its opinion under Section 9 (1) of the 1993 Act, whether the Muslim

community could be included in the list of the Backward Classes. Basing on the

recommendation by the Commission, the State issued an Ordinance dated

20.6.2005 being the A.P. Reservation of Seats in the Educational Institutions and of

appointments/posts in Public Services under the Muslim Community Ordinance,

2005 declaring the whole Muslim community as backward class and providing 5%

reservation to them in educational institutions and public employment. The said

Ordinance was challenged before this Court and this Court, in B. Archana Reddy

v. State of A.P.[6], declared the same as unconstitutional being violative of Articles

15 (4) and 16 (4) of the Constitution on the ground that the Muslim community as a

whole, based on religion, was declared as backward class without there being any

identification of the social backwardness of Muslims by the Commission.

10. The respondent State has challenged the above judgment before the

Hon’ble Supreme Court vide SLP (Civil) Appeal No.7513 of 2005 and the same is

pending adjudication. While so, the State again referred the matter to the

Commission for identifying socially and educationally backward groups among

Muslims and basing on the recommendations received from the Commission, the

Legislature has enacted the 2007 Act.

11. Thus, the respondent State, as a matter of policy, had decided to provide

reservation to the Muslim groups, who were socially and educationally backward

and accordingly added such groups to the existing lists of Backward Classes as

Group 'E' by virtue of the impugned Act.

The Writ Petitions

12. In Writ Petition No.15267 of 2007, the constitutional validity of the 2007 Act

and the consequent order vide G.O.Ms.No.23, BC Welfare (C2) Department, dated

7.7.2007 issued by the respondent State have been challenged. By virtue of the

impugned Act and the G.O., certain Muslim groups have been declared as socially

and educationally backward and these were included in the list of Backward

Classes under a separate category-E whereby they have been provided 4%

reservation. The petitioners have also prayed that G.O.Ms.No.3, Backward Classes

Welfare Department, dated 04.4.2006 issued by respondent No.2 be declared as

arbitrary and illegal. They have further prayed for a direction to respondent No.2

and the Commission for excluding the creamy layer by fixing criteria and for carrying

out a revision of the lists as per Section 11 of the 1993 Act.

13. Likewise, some other petitions viz., Writ Petition Nos. 15268, 15269, 15270,

15330, 17086, 18494, 25852 of 2007 & 7520 and 17679 of 2008 have been filed

praying for an identical relief.

14. In Writ Petition No.16562 of 2007, the petitioner has prayed for quashing

G.O.Ms.No.231, Health, Medical and Family Welfare (E1) Department, dated

11.7.2007 issued as a sequel to G.O.Ms.No.23, dated 07.7.2007.

15. Writ Petition Nos.15267, 18494 and 25852 of 2007 have been filed in public

interest whereas Writ Petition Nos.15268, 15269, 15270, 15330, 16562, 17086 of

2007 and 7520 and 17679 of 2008 have been filed in individual capacity

questioning the validity of the 2007 Act. In the writ petitions filed in public interest,

the petitioners have challenged the 2007 Act on the ground that the Act and the

subsequent G.O.Ms.No.23, dated 07.7.2007 issued by the respondent State were

affecting the fundamental rights of various students and unemployed persons in the

State with regard to their admissions in educational institutions and appointments in

public employment respectively. It is also their case that inclusion of Muslim

community in the list of backward classes would adversely affect the legitimate

interest of the already listed backward classes.

16. In the writ petitions filed in individual capacity, the petitioners, some of

whom are students, assert to be aggrieved by the impugned Act because, prior to

the enactment of the impugned Act, they were hopeful of obtaining admission to

MCA, MBBS or BDS and LL.B. Courses, either on merit or under sports quota, but,

by virtue of the impugned Act, the total number of seats available to the general pool

would be reduced proportionately thereby decreasing their chances of getting

admissions to courses of their choice.

17. The petitioner in Writ Petition No.15269 of 2007, who belongs to “Kurma”

caste, which is included in Group “B” in the existing list of backward classes, is

aggrieved because he and his community would be adversely affected by the

impugned Act.

18. The petitioners in Writ Petition Nos.25852 and 15269 of 2007 had filed

objections before the Commission opposing inclusion of Muslim community in the

backward classes list on the ground that the community did not satisfy the criteria for

inclusion in the list.

19. Though the object behind providing reservations to the SEBCs. among

Muslims is not in dispute, the main grievance of the petitioners is that the 2007 Act

is religion specific and the State, by the impugned Act, has inserted a separate

group viz., Group 'E' in the list of backward classes by providing 4% reservation to

them. It is their case that the State did not explain why some more groups should

be provided reservation when there are already included some Muslim groups in

Groups 'A' and 'B' of the Backward Classes list.

The challenge

20. It is the case of the petitioners that when the revision had to be done by the

Commission in pursuance of G.O.Ms.No.30, dated 25.8.1994, the respondent State

ought to have waited till the revision was completed, or ought to have requested the

Commission to expedite the revision and submit its report. It has been further

submitted that the State Government had hastily taken up the issue of providing

reservation to SEBCs among Muslims alone when claims of 112 other

castes/groups were pending before the Commission.

21. It is also the case of the petitioners that the Commission had shown undue

haste while making its recommendation with regard to inclusion of certain groups of

Muslims in the list of backward classes. According to them, due care was not taken

while collecting data for arriving at a conclusion that the persons belonging to the

groups referred to in the Schedule appended to the impugned Act were socially and

educationally backward and the Commission had blindly relied upon the data

collected by other bodies and no proper survey was undertaken by the

Commission. Moreover, no criteria had been fixed for coming to a conclusion

whether a particular group was socially and educationally backward and even

without defining the word ‘Muslim’, Muslim groups were indicated by the

Commission. It has also been alleged that the impugned Act is religion specific and

this would induce people to convert to Islam and that is against secularism.

The Defence

22. It is the case of the State that even prior to the 2007 Act, all the Scheduled

Caste converts were placed under one group viz., Group 'C' and simply because

the 14 identified groups belonging to Muslim community were included in the list

under a separate Group 'E', the impugned Act cannot be termed as religion

specific. If the newly identified groups were included in the already existing groups,

they could not have competed with the other backward classes and, therefore, they

were shown in a separate group. It is their further case that the process of revising

the existing lists of backward classes under Section 11 of the 1993 Act is different

from the process of identifying backward classes under Section 9 (1) of the Act,

which does not prohibit consideration of new groups or classes for inclusion in the

list, pending revision. According to the respondent authorities, claims of Brahmin,

Vaishya, Velama and several other well-known socially advanced castes were also

included in the 112 claims and though claims of the said groups were pending, it

was open to the Commission to consider other groups of backward class persons.

The cases of the above claimants were considered and enquired into by the

Commission and an advice in respect of those castes/ communities had been

forwarded to the State Government and the respondent State had duly considered

the said advice and in pursuance thereof, the impugned Act was enacted whereby

members of some Muslim groups were declared as belonging to socially and

educationally backward class. It is also the case of the respondents that the

claimants, whose cases were pending before the Commission, had not approached

this Court, and as the petitioners were not representing those 112 claimants, the

petitioners could not have argued on behalf of those claimants. Moreover, it has

also been submitted that looking to the fact that the impugned Act has been enacted

so as to give effect to the constitutional provisions, which enable the State to do the

needful for upliftment of social and educational backwardness among Muslim

groups, the Act should not be subjected to judicial review.

Chronology of the present litigation

23. On 24.7.2007, a Division Bench of this Court admitted Writ Petition Nos.

15267, 15268, 15269, 15270 and 15330 of 2007 and passed an interlocutory order

directing the respondents that admissions given after the filing of the writ petitions

by implementing the provisions of the 2007 Act would remain subject to the final

adjudication and directed the respondents to incorporate this fact in the letters of

admission or otherwise notify to the students. The Division Bench, at the same

time, keeping in view the fact that the issue raised in the writ petitions was of

substantial public importance, felt that the matter should be heard by a Larger

Bench.

24. Subsequently, on 29.8.2007, a Bench of five Judges heard Writ Petition

Nos. 15267, 15268, 15269, 15270, 15330, 16562 and 17086 of 2007 and taking

into consideration the fact that some of the questions considered by the Constitution

Bench of the Hon’ble Supreme Court in Ashoka Kumar Thakur v. Union of

India[7] might have direct impact on the challenge thrown by the petitioners to the

2007 Act and the subsequent Government Orders, deferred the hearing of the

petitions till the reference pending before the Constitution Bench of the Supreme

Court is finally decided and directed that the interim order passed earlier should

remain operative, subject to the adjudication of the writ petitions.

25. Challenging the interlocutory order passed by this Court on 24.7.2007 in

WPMP No. 19265 of 2007 in Writ Petition No.15267 of 2007, the petitioners therein

filed Petitions for Special Leave to Appeal (Civil) Nos.17195-17196 of 2007 with

SLP (C) Nos. 18052 and 18118 of 2007 and Writ Petition (C) No.535 of 2007 before

the Hon’ble Supreme Court, which, on 28.9.2007, had passed an interim order

directing the respondent State that no further admissions shall be made under the

impugned Act. However, on 12.10.2007, the Hon’ble Supreme Court, while

disposing of the above petitions, observed that this Court should proceed with the

hearing of the writ petition and finally dispose of the same by 31.10.2007; if the writ

petition could not be disposed of by 31.10.2007, this Court might consider passing

an appropriate order regarding admissions of students and, till then the interim order

granted on 28.9.2007 should continue.

26. Subsequently, on 02.11.2007, when it was brought to the notice of the 5-

Judge Bench of this Court that admissions to B.Ed. and B.Pharmacy (Bi.P.C.

stream) courses were not taken up as the admissions were stayed by the Hon’ble

Supreme Court and as the Bench had opined that it would take sometime to hear

the writ petitions and finally decide them, it had ordered that the respondent State

might proceed with the counselling of those courses and other courses and

consider the admission of the reserved category, including the reservation to B.C.

‘E’, finalise the selections, but the selection lists should not be given effect to. The

Bench had observed that if the respondent State finalises the counselling and the

process of admission before the writ petitions were decided, it would be at liberty to

move appropriate applications before this Court.

27. On 27.11.2007, WPMP No.32844 of 2007 filed by respondent No.2 in Writ

Petition No.15267 of 2007 seeking permission to give effect to the select lists

pertaining to B.C. ‘E’ category for admission to B.Ed., B. Pharmacy (Bi.P.C. stream),

M.E./M.Tech./M. Planning/M. Pharmacy Planning/ M. Pharmacy courses for the

academic year 2007-2008 in order to save the academic year, came up for hearing

before the Bench.

28. On 24.1.2008, during the course of arguments, it was brought to the notice

of the Bench that the specific direction/ criteria, as pointed out in paragraphs 114,

279, 293, 378 and 379 of Archana Reddy (that the Commission had to evolve

criteria for identifying social backwardness), had not been adhered to by the

Commission. Keeping in view the aforesaid submission, the Bench opined that the

matters were required to be heard and re-considered by a 7-Judge Bench and

accordingly passed an order. The operative portion of that order reads:

“… In view of the aforesaid judgment emanated from a coordinate bench of five judges ofthis Court and in the absence of any provision in the statute for publication of the criteriawhether this Court can supplant the provisions of the Act and the Rules by makingpublication mandatory as per the observations as contained in paras stated supra andother observations made by the coordinate bench, are contrary to the observations madeby the Supreme Court in Indra Sawhney v. Union of India – 1992 Supp. (3) SCC 217 -where it was left open for the concerned authorities to lay down the criteria, apart fromcontrary to principles laid down in regard to strict scrutiny approach, as laid in Saurabh

Chaudri v. Union of India[8] and also the principles laid down in other decisions of theApex Court. After hearing the counsel on either side appearing on behalf of respondents, we areof the view that the matters are required to be heard and reconsidered by a 7-Judge bench. Accordingly, we direct the registry to place these matters before the Hon’ble theChief Justice for passing appropriate orders.” 29. That is how the matters were listed before this 7-Judge Bench for hearing.

30. On 29.4.2008, this Bench extended the interim stay granted by the Hon’ble

Supreme Court on 28.9.2007 with regard to admissions under the 2007 Act relating

to Category-E till the hearing of these writ petitions.

31. On 19.8.2008, after hearing the submissions of the parties, this Bench

opined that the writ petitions should be heard de novo on merits and, accordingly,

arguments were advanced by the counsel appearing on behalf of the respective

parties on merits of the case, both on facts and law.

32. We have heard Shri K. Ramakrishna Reddi, Shri D. Prakash Reddy,

learned Senior Advocates, and Shri B. Adinarayana Rao, Shri G. Vidyasagar,

Shri S. Sriram, Shri L. Ravichander, Shri K.S. Murthy, advocates appearing for their

respective petitioners, and Shri K. Kondal Rao and Shri P.S.N. Murthy, parties-

in-person. We have also heard the learned Advocate General for the State, Shri S.

Satyanarayana Prasad, Standing Counsel for the Commission, Shri K.G.

Kannabhiran, Shri Anoop George Chowdary and Shri Rajeev Dhavan,

learned Senior Advocates appearing for some of the private respondents and Shri

Hashmi appearing in person in support of the 2007 Act. We have also carefully

considered the judgments referred to by them.

33. The challenge in all the writ petitions is mainly to the 2007 Act and the

Government Orders issued pursuant to the said Act. We, therefore, do not consider

it necessary to narrate the facts in each of the writ petitions in detail. Since common

questions of fact and law are involved, we have heard all the writ petitions together

and are deciding them by this common order.

Issues

34. In the context of the rival contentions, qua the 2007 Act, the following broad

issues fall for our consideration:

i) What are the appropriate parameters for judicial review; on whom lies

the burden of proof and what is the appropriate standard of scrutiny of legislative

action?;

ii) Whether the recommendations of the Commission are sustainable?

i) Judicial Review – Extent – level of scrutiny

35. The learned Advocate General appearing for the State of Andhra Pradesh

and other learned advocates supporting the validity of the impugned Act and the

G.O. issued in pursuance thereof have submitted that as the State has exercised its

legislative power to enact the 2007 Act and having regard to the noble purpose for

which the impugned Act has been enacted, this Court has no power to review the

same, whereas, the learned advocates appearing for the petitioners have submitted

that it is open to this Court to examine the legality and validity of the impugned Act.

The learned advocates have also supported their version by referring to several

authorities, which have been referred to hereinbelow.

36. The people of India declared the country as a democratic republic and the

Constitution guards our democratic system. It reflects the hopes and aspirations of

the people. It is fundamental, superior or paramount and its authority and sanction

are higher than those of ordinary laws.

37. The Constitution provides the framework for the three great wings of the

State viz., the executive, the legislature and the judiciary. It recognises and gives

effect to the concept of equality among these three wings and the concept of

“checks and balances” is inherent in the scheme. Each wing has to perform the

functions entrusted to it and respect the functioning of others. The Constitution

entrusts the task of interpreting and administering the law to the judiciary whose

view on the subject is made legally final and binding on all till it is changed by a

permissible legislative measure. Thus, in order to discharge its duty of

safeguarding the Constitutional scheme, the Courts are empowered to interfere with

the acts of the executive or legislature, if they are found transgressing the

constitutional spirit.

38. While the fundamental rights of citizens enumerated in Part III of the

Constitution are justiciable, Part IV deals with the 'Directive Principles of State

Policy' that largely enumerates objectives pertaining to socio-economic

entitlements. The Directive Principles aim at creating an egalitarian society whose

citizens are liberated from the abject social, economic and physical conditions that

had hitherto prevented them from establishing their identities. They are the creative

part of our Constitution and fundamental to the governance of the country.

However, the key feature is that the Directive Principles are 'non-justiciable', but still

they can be the basis of executive and legislative actions.

39. The ideal of social justice, which has invited frequent judicial intervention, is

that of 'affirmative action'. The framers of the Constitution not only included the

guarantee of 'equal protection before the law' in Article 14, but also permitted

'differential treatment' in order to advance the interests of the historically or

otherwise disadvantaged sections, which came to be designated as Scheduled

Castes and Scheduled Tribes. The 'affirmative action' policies took the form of

reservation of seats in legislatures, public employment and in educational

institutions. As observed in M.R. Balaji and Indra Sawhney I by the Hon’ble

Supreme Court, while the judiciary has steadfastly supported the principle of

'affirmative action', there has been frequent litigation pertaining to the specific

application of the same in different settings. There has also been a significant

litigation over questions that involve an interface between the fundamental rights

enshrined in the Constitution and the broad objectives of ensuring social justice. In

certain instances, there has also been a clash between the understanding of

fundamental rights on one hand and the governmental objectives of ensuring social

justice on the other. However, the most important feature is that the fundamental

rights provided the Supreme Court and the High Courts with a clear set of criteria to

regulate relations between citizens and the Government (i.e. vertical application of

rights) as well as among citizens themselves (i.e. horizontal application of rights).

Furthermore, the Supreme Court and the High Courts have interpreted these rights

both in 'negative' and 'positive' dimensions.

40. Article 15 of the Constitution prohibits discrimination on the grounds of

religion, race, caste, class and gender – but, at the same time, permits the State to

make special provision for the advancement of women as well as 'socially and

educationally' backward sections of the society. Hence, Article 15 forms the basis

of 'affirmative action' policies. Article 16 creates obligations on the State to ensure

fairness in matters pertaining to public employment. We are not dealing with the

other rights guaranteed to the citizens under Part III as they are not relevant for the

purpose of this judgment.

41. In Ramkrishna Dalmia v. Justice S.R. Tendolkar[9], the Hon'ble Supreme

Court observed that though Article 14 forbids class legislation, it does not forbid

reasonable classification for the purposes of legislation. In order, however, to pass

the test of permissible classification, two conditions must be fulfilled, namely, (i) that

the classification must be founded on an intelligible differentia which distinguishes

persons or things that are grouped together from others left out of the group, and (ii)

that differentia must have a rational relation to the object sought to be achieved by

the statute in question. The classification may be founded on different bases,

namely, geographical, or according to objects or occupations or the like. What is

however essential is that there must be a nexus between the basis of the

classification and the object of the Act under consideration. It is also well

established by the decisions of our Courts that Article 14 prohibits discrimination not

only by a substantive law but also by a law of procedure.

42. The concern with maintaining the independence of the judiciary is

interlinked with two core features of a constitutional democracy – i.e. 'separation of

powers' between the wings of Government and the vigorous exercise of 'judicial

review' over executive and legislative action. The fundamental rights enumerated

in the Constitution hence equip the constitutional courts with tangible criteria to

exercise 'judicial review' over governmental action. The power of ‘judicial review’ in

Article 13 is explicit. In the words of Dr. B.R. Ambedkar, this provision forms the

heart and soul of the Constitution.

43. In Golaknath v. State of Punjab[10], the Hon'ble Supreme Court had ruled

that the power of the Parliament to amend the Constitution was limited, and that the

Courts were within their power to inquire into such amendments. In Kesavananda

Bharati v. State of Kerala[11], when an amendment was made to the Constitution

extending the power of the Parliament to amend any part of the Constitution by

means of the process prescribed under Article 368, the Hon'ble Supreme Court has

laid down the doctrine of the inviolable ‘basic structure’ of the Constitution which

limited the power of the Parliament to amend the Constitution. In separate but

concurring opinions, majority of the judges (7-6) ruled that certain features of the

Constitution were integral to its existence and could not be altered by way of

amendments by the legislature. They also defended the power of the judiciary to

inquire into legislative actions for safeguarding this ‘basic structure’. This decision

holds immense significance since it re-asserted the role of the judiciary as the

sentinel on the qui vive.

44. The decisions in I.R. Coelho v. State of T.N.[12] and Raja Ram Pal v.

Hon'ble Speaker, Lok Sabha[13], in which the power of the Courts to review

Parliament's legislative and non-legislative functions was involved, demonstrate

that the Hon'ble Supreme Court is embarking on a new era of judicial review. In

Coelho, the question before the Hon'ble Supreme Court was whether it could

review the acts of the Parliament placed in the Ninth Schedule of the Constitution.

In the said case, the Hon'ble Supreme Court held that it could strike down any law

inserted into the Ninth Schedule if it was found to be contrary to the constitutional

provisions. It was observed:

“The jurisprudence and development around fundamental rights has made it clear

that they are not limited, narrow rights but provide a broad check against the violations orexcesses by the State authorities. The fundamental rights have in fact proved to be themost significant constitutional control on the government, particularly legislative power.” 45. In the above judgment, the Hon'ble Supreme Court has also observed that

“it cannot be said that the same Constitution that provides for a check on legislative

power, will decide whether such a check is necessary or not. It would be a negation

of the Constitution.”

46. In Raja Ram Pal, which is popularly known as the “cash for query in

Parliament” case, the question was whether Parliament's internal procedures were

justiciable. The Hon'ble Supreme Court decided the issue regarding the

unconstitutionality of the expulsion of Members of Parliament and simultaneously

upheld the principles of judicial review. While observing that the Constitution was

the “suprema lex in this country”, the Hon'ble Supreme Court held:

“Parliament is a coordinate organ and its views do deserve deference while its actsare amenable to judicial scrutiny … mere coordinate constitutional status … does notdisentitle this Court from exercising its jurisdiction of judicial review.” 47. In the afore-stated case, the Hon'ble Supreme Court has accepted that

though it may not question the truth or correctness of the material nor substitute its

opinion for that of the legislature, the proceedings of the Parliament, which may be

tainted on account of substantive or gross illegality or unconstitutionality, could still

be reviewed by the judiciary.

48. The above cases have re-asserted the constitutional scheme of a balance

of power between the legislative and judicial branches, and ensured that the

political and executive branches will no longer be able to evade the scrutiny of the

judicial branch.

49. S.R. Bommai v. Union of India[14], Anuj Garg v. Hotel Assn. of

India[15], State of A.P. v. P. Sagar[16], E.V. Chinnaiah v. State of A.P.[17],

M.Nagaraj v. Union of India[18] and Shree Sitaram Sugar Co. Ltd. v. Union of

India[19], are some other cases in which the Hon'ble Supreme Court had interfered

when legislations/orders by the Legislature were found unconstitutional.

50. Thus, so as to limit or put a check on the arbitrary actions of the Legislature,

this Court can examine validity of any statute if it is in violation of any of the

provisions of the Constitution i.e., if it violates the rule with regard to distribution of

powers or violates the fundamental rights of a citizen etc. In the circumstances, the

submission made by the learned Advocate General to the effect that the 2007 Act

has been enacted with a noble object and, therefore, it cannot be subjected to

judicial review, does not merit acceptance.

Extent of Review

51. It has been submitted by the learned advocates appearing for the petitioners

that identification of backward classes is an objective process and should be based

on objective material and, therefore, the exercise so conducted by the State for

identifying the backwardness – social, educational and economic – among some of

the Muslim groups should be subjected to careful, intensive and in-depth scrutiny.

52. The learned Advocate General urged that the Constitution mandates the

State to take measures for social justice including by providing reservation for SCs,

STs and BCs to attain equality among its citizens. If social justice measures taken

either by the executive or the legislature are challenged, the judiciary has to

examine the same and determine whether the same are constitutionally valid, but

there are no special standards of judicial scrutiny of such social justice measures

and Courts are bound by normal standards laid down for judicial scrutiny of any

administrative or legislative action.

53. According to the learned Advocate General, the Courts may examine

whether there is no material or there is some relevant material; the sufficiency of the

material cannot, however, form the basis for judicial scrutiny. According to him, the

Courts should not pick holes in the process of decision making and should give due

deference to such policy decision in the path of social justice action by co-equal

wings i.e. the executive or the legislature.

54. It is undisputed that judicial review can operate, both, in the narrow as well

as in the wider sense. In the narrow sense, it does not go into the merits of the

impugned decision, but examines only the constitutionality or the basic legality. In

the wider sense, judicial review would be like an appeal to be decided on the merits

of the decision by an administrative or a judicial authority. All questions of fact

and/or of law i.e. the merits of the whole case would be open to review. The review

in the wider sense may be of a dispute between private parties or between a private

party and the State or a public authority and is, therefore, mostly a question of

private law. But the narrower view is essentially a question of public law. It is

directed against administrative or legislative action as being without jurisdiction or

unconstitutional. For all practical purposes, judicial review has acquired narrow

usage to signify the power of the Courts to determine the constitutionality of

legislative acts which fall within their normal jurisdiction.

55. Judicial review of a legislative act is necessary in order to preserve

individual liberties against the rule of the majority and to protect individuals and

groups against invidious attacks by the public authorities or the departments of the

Government. In our Constitution, we have a list of fundamental rights, which are to

be protected by the Courts. As long as the fundamental rights exist and are part of

the Constitution, the power of judicial review has to be exercised so as to see that

those rights are not violated.

56. In Narendra Kumar v Union of India[20], it has been observed that a law

would be valid, if the interference with the fundamental right was reasonable, but

would be invalid if the test of reasonableness was not passed. It has also been

observed therein that while applying the test of reasonableness, the Court has to

consider the question in the background of the facts and circumstances under which

the law was enacted, taking into account the nature of the evil that was sought to be

remedied by such law, the degree of harm which might be caused to individual

citizens and the benefit which might be gained by the general public. It has been

further observed that it would also be necessary to consider in that connection

whether the restraint caused by the law is more than was necessary in the interest

of the general public.

57. In Kesavananda Bharati, Justice P. Jaganmohan Reddy has explained the

two concepts that are inherent in Article 14:

“Two concepts are inherent in the guarantee in Article 14 – one of “equality beforelaw”, a negative one similar to that under the English common law; and the other “equalprotection of laws”, a positive one under the United States Constitution. The negativeaspect is in the prohibition against discrimination and the positive content is the equalprotection under the law to all who are situated similarly and are in like circumstances. Theimpact of the negative content on the positive aspect has not so far been clearly discernedin the decision of this Court, which has been mostly concerned with the positive aspect.” 58. In Anuj Garg, the Hon’ble Supreme Court has observed that any legislation

with pronounced “protective discrimination” serves as a double-edged sword.

Therefore, strict scrutiny test should be employed while assessing the implications

of this variety of legislation. The Legislation should not be only assessed on its

proposed aims, but rather on the implications and the effects. In this case, the

Hon’ble Supreme Court, while determining the issues arising out of the biological

differences between the sexes, has observed that such legislations deserve deeper

judicial scrutiny and that the test to review such a protective discrimination statute

would entail a two-pronged scrutiny viz., a) the legislative interference should be

justified in principle, and b) the same should be proportionate in measure.

59. In Kesavananda Bharathi, the Hon’ble Supreme Court has held that the

Directive Principles embodied in Part IV of the Constitution also deals with

important rights of individuals. Parts III and IV of the Constitution form a basic

element of the Constitution without which its identity will be completely changed. It

was to give effect to the main objectives of the Preamble, Parts III and IV were

enacted. The dignity of an individual can be achieved only when Parts III and IV

are balanced and harmonized. The Hon’ble Supreme Court has observed as

follows:

“… The purpose of the Fundamental Rights is to create an egalitarian society, tofree all citizens from coercion or restriction by society and to make liberty available for all.The purpose of the Directive Principles is to fix certain social and economic goals forimmediate attainment by bringing about a non-violent social revolution. Through such asocial revolution the Constitution seeks to fulfill the basic deeds of the common man and tochange the structure of our society. It aims at making the Indian masses free in thepositive sense. … Without faithfully implementing the Directive Principles, it is notpossible to achieve the Welfare State contemplated by the Constitution. ... Equally, thedanger to democracy by an over-emphasis on duty cannot be minimised. … Indeed thebalancing process between the individual rights and the social needs is a delicate one. Thisis primarily the responsibility of the “State” and in the ultimate analysis of the courts asinterpreters of the Constitution and the law.” (paras 712 to 715) 60. Thus, it is clear from the judgments of the Hon’ble Supreme Court since

Ramakrishna Dalmia that administrative/legislative action is susceptible to judicial

review when it is found that the administrative action of the State or the legislation

enacted by a State Legislature/Parliament has not passed the test of

reasonableness. The Hon’ble Supreme Court has also observed that the Courts,

while considering the validity of a legislation touching Article 14 of the Constitution,

have to determine whether the classification satisfies the test of reasonableness

and whether the classification proposed to be made by such legislation is based on

some differentia which distinguishes such persons in whose favour the legislation is

made, and whether such differentia have a reasonable relation to the object sought

to be achieved by the statute.

61. It is also well settled that the scope of judicial review depends on the nature

of the subject matter and there is no special or distinct standard of judicial review

when a beneficial legislation like the one under challenge is under consideration.

The law is well settled on this aspect and the decisions of the Hon’ble Supreme

Court are uniform. It is apt to quote the observations by Justice Jeevan Reddy in

Indra Sawhney I:

“It is enough to say on this question that there is no particular or special standard ofjudicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4).The extent and scope of judicial scrutiny depends upon the nature of the subject-matter,the nature of the right affected, the character of the legal and constitutional provisionsapplicable and so on. The acts and orders of the State made under Article 16(4) do notenjoy any particular kind of immunity. At the same time, the Court would normally extenddue deference to the judgment and discretion of the executive — a co-equal wing — inthese matters. The political executive, drawn as it is from the people and represent as itdoes the majority will of the people, is presumed to know the conditions and the needs ofthe people and hence its judgment in matters within its judgment and discretion will beentitled to due weight. More than this, it is neither possible nor desirable to say. It is notnecessary to answer the question as framed.” (Paras 842 and 859)

62. Justice Reddy had also observed in paragraph 737 of the said judgment

that any determination of backwardness is neither a subjective exercise nor a matter

of subjective satisfaction and if, for collateral reasons, the executive includes groups

or classes not satisfying the relevant criteria, it would be a clear case of fraud on its

power.

63. The principles that would emerge from the judgments of the Hon’ble

Supreme Court are that any interference by the State with the fundamental rights of

the citizens should be reasonable and such interference must stand the scrutiny of

the Court. When there is a challenge to a legislative action of the State as offending

Articles 14, 15 (4) or 16 (4), the Court can and should verify whether the level of

discrimination is excessive and whether the asserted classification has a nexus

with the objective intended to be achieved by the State; and in applying the test of

reasonableness, the Court has to consider the background of the facts and

circumstances under which the legislation was made, and in particular, when a

legislation aims to discriminate the citizens on the basis of religion, race etc., the

Courts have to make a careful and deeper scrutiny to test such legislation.

Level of scrutiny 64. It has been submitted by the learned advocates appearing for the petitioners

that the standard of judicial review laid down in Archana Reddy is not based on

the doctrine of strict scrutiny applied by the U.S. Supreme Court and is consistent

with the observations of the Hon’ble Supreme Court in Ashoka Kumar Thakur,

that the Courts have to apply a careful and deeper scrutiny. It has been submitted

by them that for satisfying the American standard of strict scrutiny, the respondent

State has to satisfy the two essential components viz., a) compelling State interest;

and b) least restrictive requirement and narrow tailoring; and in Archana Reddy,

this Court referred to but did not apply the strict scrutiny doctrine in the American

sense.

65. Per contra, it has been submitted by the learned Advocate General that in

Archana Reddy though the Bench had extensively considered the scope of judicial

review and held that the Hon’ble Supreme Court in Indra Sawhney I had not set

any standard of judicial scrutiny in the matters of affirmative action of the State,

Justice Raghuram and Justice V.V.S. Rao of the Bench have held that strict scrutiny

test is applicable in cases of this nature. It is his case that the Bench (view of

Justice V.V.S.Rao) erred in holding that Justice Jeevan Reddy in Indra Sawhney I

did not either accept or reject strict scrutiny test to review social justice measures.

66. It has further been submitted by the learned Advocate General that in

Archana Reddy (view of Justice V.V.S. Rao) this Court has relied on the

judgments of the U.S. Supreme Court delivered after Indra Sawney I and has held

that the U.S. Supreme Court has ultimately accepted strict scrutiny standard in

matters of judicial review of affirmative action and applied the same in Archana

Reddy. According to him, this Court (view of Justice V.V.S. Rao) failed to

distinguish the fundamental differences between the U.S. Constitution and the

Indian Constitution in the matter of the mandate of equality (Article 14 of the Indian

Constitution and the 14th Amendment of U.S. Constitution) and wrongly applied the

American principle of “strict scrutiny” to the Indian context.

67. The learned Advocate General has also contended that in Archana Reddy

(view of Justice G. Raghuram), while referring to the judgments of the U.S. Supreme

Court, which are unsuitable to the Indian context, this Court has observed that the

State must satisfy that the means adopted are the only way to achieve the

compelling objective, and has held that religion specific classification would

constitute a suspect classification and, therefore, it requires strict scrutiny. He has

further submitted that the observations of this Court (view of Justice Raghuram) that

the Hon’ble Supreme Court, starting from State of Madras v. Champakam

Dorairajan[21] t o State of Uttar Pradesh v. Pradeep Tandon[22], applied

rigorous scrutiny test, are not correct and that this Court has also not explained as to

the relevance of U.S. jurisprudence to Indian context.

68. It has also been urged by the learned Advocate General that different levels

of scrutiny viz., strict scrutiny, intermediate scrutiny and rational basis scrutiny were

evolved and are being followed by the U.S. Supreme Court and though the same

were in existence even when the judgment in Indra Sawhney I was delivered and

the judgment of this Court in T. Muralidhar Rao, both Courts thought it fit not to

import this principle, in view of the differences in the Constitutions of the two

countries.

69. It has been submitted by him that there is a great deal of difference between

racial discrimination and discrimination based on caste system; that the language

used in Articles 14 to 16 of the Indian Constitution is different when compared with

the language in 14th amendment of the U.S. Constitution; and the expression used

in Article 14 viz., “equality before the law” is absent in the U.S. Constitution. It is his

case that social justice action including reservations in our country is a

constitutional obligation of the State and such an obligation is absent in the U.S.

Constitution.

70. In view of the submissions made by the learned advocates on either side on

the aspect of level of scrutiny to be applied by the Courts, we consider the

judgments of the Supreme Court touching on the point in issue.

71. In Ramkrishna Dalmia, the Hon’ble Supreme Court has observed that

when a statute comes up for consideration before the Court on a question of its

validity under Article 14 of the Constitution, the same may be placed in any of the

five classes enumerated by it. The Hon’ble Supreme Court has also observed that

the following principles will have to be constantly borne in mind by the Court when it

is called upon to adjudge the constitutionality of any particular law attacked as

discriminatory and violative of the equal protection of the laws:

“12. … … ...(i) A statute may itself indicate the persons or things to whom its provisions are intended toapply and the basis of the classification of such persons or things may appear on the faceof the statute or may be gathered from the surrounding circumstances known to or broughtto the notice of the court. In determining the validity or otherwise of such a statute the courthas to examine whether such classification is or can be reasonably regarded as basedupon some differentia which distinguishes such persons or things grouped together fromthose left out of the group and whether such differentia has a reasonable relation to theobject sought to be achieved by the statute, no matter whether the provisions of the statuteare intended to apply only to a particular person or thing or only to a certain class ofpersons or things. Where the court finds that the classification satisfies the tests, the courtwill uphold the validity of the law, as it did in Chiranjitlal Chowdhri v. Union of India{(1950) SCR 869}, State of Bombay v. F.N. Balsara {(1951) SCR 682}, Kedar NathBajoria v. State of West Bengal {(1954) SCR 30}, S.M. Syed Mohammad & Companyv. State of Andhra {(1954) SCR 1117}, and Budhan Choudhry v. State of Bihar {(1955)1 SCR 1045}.(ii) A statute may direct its provisions against one individual person or thing or to severalindividual persons or things but no reasonable basis of classification may appear on theface of it or be deducible from the surrounding circumstances, or matters of commonknowledge. In such a case the court will strike down the law as an instance of nakeddiscrimination, as it did in Ameerunnissa Begum v. Mahboob Begum {(1953) SCR 404}and Ramprasad Narain Sahi v. State of Bihar {(1953) SCR 1129}. (iii) A statute may not make any classification of the persons or things for the purpose ofapplying its provisions and may leave it to the discretion of the Government to select andclassify persons or things to whom its provisions are to apply. In determining the questionof the validity or otherwise of such a statute the court will not strike down the law out ofhand only because no classification appears on its face or because a discretion is given tothe Government to make the selection or classification but will go on to examine andascertain if the statute has laid down any principle or policy for the guidance of the exerciseof discretion by the Government in the matter of the selection or classification. After suchscrutiny the court will strike down the statute if it does not lay down any principle or policyfor guiding the exercise of discretion by the Government in the matter of selection orclassification, on the ground that the statute provides for the delegation of arbitrary anduncontrolled power to the Government so as to enable it to discriminate between personsor things similarly situate and that, therefore, the discrimination is inherent in the statuteitself. In such a case the court will strike down both the law as well as the executive actiontaken under such law, as it did in State of West Bengal v. Anwar Ali Sarkar {(1952) SCR284}, Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh {(1954) SCR 803} andDhirendra Krishna Mandal v . Superintendent and Remembrancer of Legal Affairs{(1955) 1 SCR 224}.(iv) A statute may not make a classification of the persons or things for the purpose ofapplying its provisions and may leave it to the discretion of the Government to select and

classify the persons or things to whom its provisions are to apply but may at the same timelay down a policy or principle for the guidance of the exercise of discretion by theGovernment in the matter of such selection or classification, the court will uphold the lawas constitutional, as it did in Kathi Raning Rawat v . State of Saurashtra {(1952) SCR435}.(v) A statute may not make a classification of the persons or things to whom theirprovisions are intended to apply and leave it to the discretion of the Government to selector classify the persons or things for applying those provisions according to the policy or theprinciple laid down by the statute itself for guidance of the exercise of discretion by theGovernment in the matter of such selection or classification. If the Government in makingthe selection or classification does not proceed on or follow such policy or principle, it hasbeen held by this Court e.g. in Kathi Raning Rawat v. State of Saurashtra that in such acase the executive action but not the statute should be condemned as unconstitutional.”

72. It is undisputable that judicial review or scrutiny and its extent are not

defined in the Constitution. The Courts have evolved general principles as to the

scope of such scrutiny with self-imposed restrictions. The extent and scope of

judicial review or scrutiny depends upon the nature of the subject-matter, the nature

of the right affected, the character of the legal and constitutional provisions

applicable and so on.

73. Much has been said with regard to the nature of scrutiny required when any

law in the nature of the impugned Act is enacted by the State. The Hon’ble

Supreme Court has expressed that the American doctrine of strict scrutiny should

not be imported by us looking to the fact that the circumstances prevailing in the

American society and in our society are different. However, the Hon’ble Supreme

Court has referred to the concept of rigorous scrutiny for examining the validity of

law in Champakam Dorairajan, M.R. Balaji, P. Sagar, A.Peeriakaruppan (Minor)

v. State of T.N.[23], U.S.V. Balaram, Janki Prasad Parimoo v. State of J & K[24],

Pradeep Tandon and Indra Sawhney I.

74. We have thus to decide what degree and quality of scrutiny is appropriate

while examining the legality of the impugned Act. We have mainly gone through

the judgment rendered by this Court in Archana Reddy, the final outcome of which

has given rise to the impugned Act and we have also gone through the judgment

delivered by the Hon’ble Supreme Court in Indra Sawhney I. In Indra Sawhney I,

Justice Sawant has opined as under:

“529. There are no special principles of judicial review nor does the scope of judicial reviewexpand when the identification of backward classes and the percentage of the reservationkept for them is called in question. So long as correct criterion for the identification of thebackward classes is applied, the result arrived at cannot be questioned on the ground thatother valid criteria were also available for such identification. It is possible that the result soarrived at may be defective marginally or in marginal number of cases. That does notinvalidate the exercise itself. No method is perfect particularly when sociological findingsare in issue. Hence, marginal defects when found may be cured in individual cases but theentire finding is not rendered invalid on that account.

530. The corollary of the above is that when the criterion applied for identifying thebackward classes is either perverse or per se defective or unrelated to such identificationin that it is not calculated to give the result or is calculated to give, by the very nature of thecriterion, a contrary or unintended result, the criterion is open for judicial examination.537. To sum up, judicial scrutiny would be available (i) if the criterion inconsistent with theprovisions of Article 16 is applied for identifying the classes for whom the special orunequal benefit can be given under the said article; (ii) if the classes which are not entitledto the said benefit are wrongly included in or those which are entitled are wrongly excludedfrom the list of beneficiaries of the special provisions. In such cases, it is not either theentire exercise or the entire list which becomes invalid, so long as the tests applied foridentification are correct and the inclusion or exclusion is only marginal; and (iii) if thepercentage of reservations is either disproportionate or unreasonable so as to deny theequality of opportunity to the unreserved classes and obliterates Article 16(1). Whether thepercentage is unreasonable or results in the obliteration of Article 16(1), so far as theunreserved classes are concerned, it will depend upon the facts and circumstances ofeach case, and no hard and fast rule of general application with regard to the percentagecan be laid down for all the regions and for all times.552. … There is no special law of judicial review when the reservations under Article16(4) are under scrutiny. The judicial review will be available only in the cases ofdemonstrably perverse identification of the backward classes and in the cases ofunreasonable percentage of reservations made for them.”

75. The afore-stated observations by the Hon’ble Supreme Court clearly reveal

that there is no special law on the subject of judicial review when a reservation

under Article 16 (4) of the Constitution is made and the law giving right of

reservation in favour of a particular class is under scrutiny.

76. In the afore-stated circumstances, so as to simplify the concept with regard

to judicial scrutiny, we can only say that the scrutiny should depend upon the

subject matter of legislation and its impact upon legal or fundamental rights of one

class of the society. When, so as to achieve the goal enshrined in the Constitution

of helping disadvantaged class, a law is enacted so as to give more rights to such a

disadvantaged class at the cost of another class of persons, in our opinion, what is

required to be examined by this Court is: whether the purpose for which such an Act

was enacted was, in fact, served and whether the conclusions on the basis of which

the Act was enacted were correctly arrived at. If the reason for which a particular

class was considered a disadvantaged class was not rightly arrived at, the

enactment made to favour such a class at the cost of the general community would

not be just, proper or valid.

77. In Saurabh Chaudri, the question was as to whether reservation on the

basis of residence, was constitutionally permissible. While answering the question,

the Hon’ble Supreme Court has observed that reservation on the basis of domicile

is impermissible in terms of Article 15 (1) of the Constitution. On the issue of

applicability of scrutiny, the Hon'ble Supreme Court observed as follows:

“36. The strict scrutiny test or the intermediate scrutiny test applicable in the United States

of America as argued by Shri Salve cannot be applied in this case. Such a test is notapplied in the Indian courts. In any event, such a test may be applied in a case where alegislation ex facie is found to be unreasonable. Such a test may also be applied in a casewhere by reason of a statute the life and liberty of a citizen is put in jeopardy. This Courtsince its inception apart from a few cases where the legislation was found to be ex faciewholly unreasonable proceeded on the doctrine that constitutionality of a statute is to bepresumed and the burden to prove contra is on him who asserts the same. The courtsalways lean against a construction which reduces the statute to a futility. A statute or anyenacting provision therein must be so construed as to make it effective and operative “onthe principle expressed in the maxim: ut res magis valeat quam pereat”. (See CIT v. S.Teja Singh {AIR 1959 SC 352} and Tinsukhia Electric Supply Co. Ltd. v. State ofAssam {(1989) 3 SCC 709 = AIR 1990 SC 123}).”

78. However, the Court did not accept the contention urged on behalf of the

petitioners for applying the strict scrutiny test and to set aside the statute saying that

such a test was not applied in the Indian Courts, but, in any event, such a test may

be applied in a case where a legislation is ex facie found to be unreasonable or

where by reason of a statute the life and liberty of a citizen is put in jeopardy.

79. Now, we will deal with the observations in Ashoka Kumar Thakur on the

applicability of 'strict scrutiny’ doctrine to the Indian context. The Hon’ble the Chief

Justice of India, Shri K.G. Balakrishnan, while dealing with the question - whether

the principles laid down by the United States Supreme Court for affirmative action

such as “suspect legislation”, “strict scrutiny” and “compelling State necessity” are

applicable to the principles of reservation or other affirmative action contemplated

under Article 15 (5) of the Constitution of India? – in paragraph 206, has observed

that the Courts, both in India as well as in the United States of America, have looked

with ‘extreme caution and care’ at any legislation that aims to discriminate on the

basis of race in the United States and on the basis of caste in India and that the

American decisions are not strictly applicable to us and when the principles of strict

scrutiny and suspect legislation were sought to be applied, the Hon'ble Supreme

Court had rejected the same in Saurabh Chaudri. Referring to the observations in

the said judgment as to the applicability of strict scrutiny, as noticed above, the

Hon’ble Chief Justice observed:

“209. The aforesaid principles applied by the Supreme Court of the United States ofAmerica cannot be applied directly to India as the gamut of affirmative action in India is fullysupported by constitutional provisions and we have not applied the principles of “suspectlegislation” and we have been following the doctrine that every legislation passed byParliament is presumed to be constitutionally valid unless otherwise proved. We haverepeatedly held that the American decisions are not strictly applicable to us and the verysame principles of strict scrutiny and suspect legislation were sought to be applied and thisCourt rejected the same in Saurabh Chaudri v. Union of India (supra). … … …210. Learned counsel Shri Sushil Kumar Jain contended that the classification of OBCswas not properly done and it is not clear as to whose benefit the legislation itself is made,therefore, it is a suspect legislation. This contention cannot be accepted. We are of the

view that the challenge of Act 5 of 2007 on the ground that it does not stand the “strictscrutiny” test and there was no “compelling State necessity” to enact this legislation cannotbe accepted.” 80. Justice Arijit Pasayat, speaking for himself and Justice C.K. Thakker, while

answering almost an identical question, has observed in paragraph 251 of the

judgment that “… the American cases which have been highlighted by the

petitioners relate essentially to strict classification, strict scrutiny and narrow

tailoring. This issue is of considerable importance when so much debate is taking

place about respect being shown by courts of a country to a decision of another

country. The factual scenario and the basic issues involved in the cases sometimes

throw light on the controversy.” Justice Pasayat elaborately discussed the American

and Indian case law on the subject and, in paragraph 268, observed as follows:

“In India there has to be collective commitment for upliftment of those who needed it.In that sense, the question again comes back to the basic issue as to whether the actiontaken by the Government can be upheld after making judicial scrutiny. Much assistance isnot available to the petitioners from the American decisions.” 81. On the extent of judicial scrutiny to be applied, Justice Pasayat, in

paragraph 269, observed:

“It is to be noted that the doctrine of separation as is prevalent in the Americansociety is not of much consequence in the Indian scenario. It needs to be clarified that theexpression “strict scrutiny” has also been used by the Indian courts in Narendra Kumar v.Union of India (supra) but it appears to have been used in different context. What reallyappears to be the intention for the use of the expression is “careful and deeper scrutiny”and not in the sense of strict scrutiny of the provisions as is prevalent in the Americanjurisprudence. It is used in different sense. The application appears to be in technical sensein the American courts, for example, Regents of University of California v. Allan

Bakke[25].” 82. Justice Dalveer Bhandari, while answering the question on strict scrutiny

test, has observed in para 623 that “… where others have reviewed similar issues in

great detail, it behoves us to learn from their mistakes as well as accomplishments.”

It has also been observed that “let the path to our constitutional goals be

enlightened by experience, learning, knowledge and wisdom from any quarter”. It

has been further observed in para 545 that “… the judgments delivered by US

courts on affirmative action have great persuasive value and they may provide

broad guidelines as to how we should tackle our prevailing condition. A large

number of English laws have been inherited by India and America. English and

American cases are frequently cited by our courts. We need to keep our window

open and permit the light of knowledge to enter from any source.” Justice Bhandari

has also referred to a foreword written by the former President of India, Mr. R.

Venkataraman, to a book (Democracy and Rule of Law: Foundation and Frontiers)

by the eminent constitutional expert Dr. L.M. Singhvi, which has been extracted at

paragraph 623 of the judgment. The foreword of Mr.R. Venkataraman reads as

under:

“Society progresses only by exchange of thoughts and ideas. Imagine what a sorrystate the world would have been in had not thoughts and ideas spread to all corners of theglobe. Throughout history, philosophers, reformers, thinkers, and scholars have recordedtheir thoughts, regardless of whether they were accepted or not in their times, and thuscontributed towards progress of humankind. India was the first to encapsulate this seminalglobal thought. The Rig Veda says:

Ano bhadrah krtavo yantu viswatahLet noble thought come to us from every side.”

83. Justice Dalveer Bhandari has, however, answered the question on strict

scrutiny, after discussing the American case law on the issue, in the following

words:

“640. The principles enunciated by the American Supreme Court, such as, “suspectlegislation”, “narrow tailoring”, “strict scrutiny” and “compelling State necessity” are notstrictly applicable for challenging the impugned legislation.” 84. In paragraph 556, Justice Dalveer Bhandari has also observed as follows:

“556. As I have observed, American courts carefully review racial classifications. Giventhat the Ninety-third Amendment on its face discriminates against general categorystudents, we should give it careful scrutiny. The Article 14 right to formal equality deservesas much. If 49.5% caste-based reservation was upheld in Sawhney (1) for governmentemployment, it follows that 49.5% caste-based reservation is permitted in aidededucational institutions. While I am compelled by Sawhney (I) to hold that the impugnedlegislation passes careful scrutiny with respect to reservation in aided institutions, itsimplementation is contingent upon the directions given in this opinion.”

85. From a reading of the separate observations of K.G. Balakrishnan, CJI,

Justice Arijit Pasayat and Justice Dalveer Bhandari, it is clear that though the

learned Judges of the Supreme Court have observed that the law on strict scrutiny

applied by the U.S. Supreme Court is inapplicable in our country, the judgments

delivered by the U.S. Supreme Court on affirmative action have great persuasive

value and may offer broad guidelines as to how we should tackle our prevailing

condition. They have referred to the cases of the U.S. Supreme Court believing that

the factual scenario and the basic issues involved in the cases therein may

sometimes throw light on the standard of scrutiny to be applied by the Courts in

India. What the Hon'ble Judges have done is, they have referred to Saurabh

Chaudri to clarify the applicability of strict scrutiny doctrine in the Indian context in

the facts and circumstances of the case in Ashoka Kumar Thakur, which relates to

providing reservations under Article 15 (5) to other backward classes (OBCs) in the

State-aided institutions and the Constitution Bench declared the said reservations

to be valid to the extent that it permitted reservations for SEBCs in the State or

State-aided institutions subject to the exclusion of the “creamy layer” from the other

backward classes.

86. On a careful consideration of the above judgments, it would emerge that

when an affirmative action of the State providing reservations to backward classes

was under challenge in the context of Article 14, the Hon'ble Supreme Court had

gone into the details of the basis for making the classification and gave its findings.

However, it did not prescribe the level of scrutiny to be applied and providing

reservation on such affirmative action was tested on the standards of ‘deeper

scrutiny’, ‘in-depth scrutiny’ or ‘extreme care and caution’, and in some cases the

doctrine of ‘strict scrutiny’ was applied. All the judgments touching upon

reservations consistently applied exacting scrutiny or rigorous scrutiny. I n Indra

Sawhney I, the Hon’ble Supreme Court analysed the Mandal report minutely,

which, in our view, exemplifies application of a rigorous and exacting standard of

scrutiny.

87. In a recent judgment by the Hon’ble Supreme Court in the case of Subhash

Chandra v. Delhi Subordinate Services Selection Board[26], it has been

observed that if it has come to light that those who are entitled to the benefit of the

doctrine of protective discrimination contained in Clause (4) of Article 16 of the

Constitution of India had been deprived of their constitutional right, and when the

affirmative action of the State is challenged, the Courts would be entitled to apply

the principle of strict scrutiny test or closer scrutiny test or higher level of scrutiny.

Referring to M. Nagaraj, the Court has observed that the doctrine of guided power

had been used in the said case as a corollary of strict scrutiny rule. It is a distant

relative of continuing mandamus. It has been further observed in Subhash

Chandra that “strict scrutiny paves the way for a more searching judicial scrutiny to

guard against invidious discriminations, which could have been made by the State

against a group of people in violation of the constitutional guarantee of just and

equal laws. The court must adopt a weighted balancing approach or in other words

pursue an even-handed balancing of the interests.” In the above case, the Hon’ble

Supreme Court has widened the scope of the applicability of the doctrine of strict

scrutiny by adding the following categories of cases in which it may be applied:

“i) Where a statute or an action is patently unreasonable or arbitrary. [Mithu v. State ofPunjab [(1983) 2 SCC 277].ii) Where a statute is contrary to the constitutional scheme. [E.V. Chinniah].

iii) Where the general presumption as regards the constitutionality of the statute or action

cannot be invoked.

iv) Where a statute or executive action causes reverse discrimination.

v) Where a statute has been enacted restricting the rights of a citizen under Article 14 or

Article 19 as for example clauses (1) to (6) of Article 19 of the Constitution of India as in

those cases, it would be for the State to justify the reasonableness thereof.

vi) Where a statute seeks to take away a person’s life and liberty which is protected under

Article 21 of the Constitution of India or otherwise infringes the core human right.

vii) Where a statute is ‘Expropriatory’ or ‘Confiscatory’ in nature.

viii) Where a statute prima facie seeks to interfere with sovereignty and integrity of India.”(We have noticed this judgment, which was pronounced after we had reservedjudgment in this case, and we refer to it as this is a precedent relevant to this issue.)

88. Analyses of the judgments referred to above illustrate that when affirmative

action of the State is challenged as offending the equality injunctions of the

Constitution, particularly in the matter of reservations to SCs, STs and BCs, though

there is a presumption as to the constitutionality of the statute, the Courts have

examined such statutes rigorously, with great care and caution. Therefore, the

contention advanced on behalf of the State that the standard of scrutiny actually

applied in Archana Reddy does not suit the Indian conditions or is inconsistent

with the law laid down in Ashoka Kumar Thakur, has to be rejected.Burden of proof 89. It has been submitted by the learned Advocate General that Article 14 read

with Articles 15 (1) and 16 (1) casts a mandatory duty on the State to remove

inequalities and to take social welfare measures like providing reservations to

persons belonging to backward classes. It is a constitutionally mandated obligation

on the State and looking to the object of the 2007 Act, it cannot be treated as a

suspect legislation. Therefore, the burden lies on the petitioners to show that the

impugned Act is violative of other constitutional provisions and is liable to be struck

down. The burden also lies on the petitioners to establish that a particular group

included in the list of backward classes is not backward, socially and educationally.

90. It has also been submitted by the learned Advocate General that in T.

Muralidhar Rao, though the High Court interfered with the executive action of the

State, insofar as judicial scrutiny is concerned, it has not deviated from the law laid

down in Indra Sawhney I. However, Archana Reddy introduced the theory of strict

scrutiny and shifted the burden of proof from the petitioners to the State,

erroneously.

91. In Ram Krishna Dalmia, the Hon’ble Supreme Court has observed that

when the Court is called upon to adjudge the constitutionality of any particular law

attacked as discriminatory and violative of equal protection of the laws, the law may

be declared constitutional even though it relates to a single individual if, on account

of some special circumstances or reasons applicable to him and not applicable to

others, that single individual has been treated as a class by himself. It has also

been observed that there is always a presumption in favour of the constitutionality of

an enactment and the burden is upon him who attacks it to show that there has

been a clear transgression of the constitutional principles. The Court must also

presume that the legislature understands and correctly appreciates the need of its

own people, that its laws are directed to problems made manifest by experience

and that its discrimination is based on adequate grounds. In order to sustain the

presumption of constitutionality, the court may take into consideration matters of

common knowledge, matters of common report, the history of the times and may

assume every state of facts which can be conceived to be existing at the time of the

legislation. It has also been observed by the Hon’ble Supreme Court that while

good faith and knowledge of the existing conditions on the part of a legislature are

to be presumed, if there is nothing on the face of the law or the surrounding

circumstances brought to the notice of the court on which the classification may

reasonably be regarded as based, the presumption of constitutionality cannot be

carried to the extent of always holding that there must be some undisclosed and un-

known reasons for subjecting certain individuals or corporations to hostile or

discriminating legislation.

92. In Jagadish Saran (Dr.) v. Union of India[27], where the constitutionality of

reservation of seats or quota for local candidates in professional courses was under

challenge, the Hon’ble Supreme Court has observed that the burden, when

protective discrimination for promotion of equalization is pleaded, is on the party

who seeks to justify the ex facie deviation from equality. The case in defence of the

deviation from equality must be clearly made out and not merely asserted.

93. In S.R. Bommai, the Hon’ble Supreme Court has observed that when the

Proclamation issued by the President of India under Article 356 (1) of the

Constitution is challenged by making out a prima facie case with regard to its

invalidity, the burden would be on the Union Government to satisfy that there

existed material which showed that the Government could not be carried on in

accordance with the provisions of the Constitution. Since such material would be

exclusively within the knowledge of the Union Government, in view of the

provisions of Section 106 of the Evidence Act, the burden of proving the existence

of such material would be on the Union Government.

94. In M. Nagaraj, the Hon’ble Supreme Court has observed that before making

the provision for reservations for persons belonging to the Scheduled Castes and

Scheduled Tribes in matters of promotions, the State concerned will have to show

in each case the existence of the compelling reasons viz., backwardness,

inadequacy of representation and overall administrative efficiency.

95. In E.V. Chinnaiah, the Hon’ble Supreme Court has observed that in

providing reservation to disadvantaged classes of people, the burden is on the

State to show that such classification is reasonable and it has nexus with the object

sought to be achieved.

96. In AIIMS Students’ Union, where 1/3rd quota of seats in post-graduate

courses was reserved in favour of institutional candidates, the Hon’ble Supreme

Court observed that when protective discrimination for promotion of equalization is

pleaded, the burden is on the party who seeks to justify the ex facie deviation from

equality.

97. In the recent case of Anuj Garg also, the Hon’ble Supreme Court has

observed that the burden of proving that legislation was enacted to achieve the

constitutional goal of removing inequalities among different sections of the society,

is on the State. It is for the State to show that such legislation does not violate

Articles 14 and 15.

98. Thus, a close reading of the propositions laid down by the Hon’ble Supreme

Court discloses that presumption is in favour of the constitutionality of an enactment

and the burden is on the person attacking its constitutionality, that there has been a

clear transgression of the constitutional principles. However, such a presumption of

constitutionality of a statute is not available if it can be shown that facially the law or

the surrounding circumstances on which the classification is based did not warrant

such a classification and the statute made an invidious discrimination among

citizens similarly situated. It is also discernible from the above propositions that

when a statute is challenged and a prima facie case is made out by the person

attacking such statute, the burden shifts to the State to satisfy that there exists some

material which justifies the State action of a departure from the basic principle of

equality; and as such material would be exclusively within the knowledge and

domain of the State, the burden is upon the State to prove the existence of such

material. For the reasons recorded hereafter, we are of the view that there was no

material with the State to legitimize the classification involved in the impugned Act

and as it is violative of Articles 15(1) and 16 (2) of the Constitution, the petitioners

have discharged their initial burden and, therefore, the burden shifts to the State to

place before the Court sufficient material for sustaining the impugned legislation. ii) Whether the recommendations of the Commission are sustainable 99. As stated hereinabove, there is no prescribed special standard of scrutiny.

To examine the validity of the impugned Act, we must examine whether the

conclusion arrived at by the State that the groups of Muslims incorporated in the

Schedule appended to the impugned Act are, in fact, SEBCs. It is of vital

importance to examine the same because, while giving certain rights to them by

providing reservation, the State is proportionately depriving persons of other class

of their opportunity to higher education and to employment in public services. Once

a reservation is provided to the extent of 4% to the groups of Muslims incorporated

in the impugned Act, the persons getting admission in educational institutions or

getting employment in public services would be getting the said benefit at the cost

of other persons belonging to either the unreserved classes or even persons

legitimately belonging to other reserved classes.

100. In our opinion, what is important in the instant cases is to see whether the

State had arrived at a correct conclusion by adopting rational methods of

ascertaining social and educational backwardness of groups of Muslims.

101. For the afore-stated purpose, the Court has to examine the entire procedure

very meticulously for the reason that by virtue of the impugned enactment, rights of

several other persons would be impacted and this Court has to protect the rights of

other persons unless their rights are lawfully abridged so as to help disadvantaged

groups as per the provisions of Articles 15 (4) and 16 (4) of the Constitution. In our

opinion, our afore-stated view has been buttressed in principle by the observations

made and law laid down by the Hon’ble Supreme Court in Indra Sawhney I.

102. Thus, for the purpose of ascertaining legality of the impugned enactment, we

must scrutinise whether the conclusion by the State in relation to the social and

educational backwardness of groups of Muslims enumerated in the Schedule

appended to the impugned Act is just and proper. We have also to examine

whether the methodology adopted by the Commission, on whose recommendation

the State has enacted the impugned Act, was just and proper.

103. If the methodology adopted by the Commission for ascertaining whether the

afore-stated groups of Muslims were socially and educationally backward, is found

to be erroneous, in our opinion, the entire basis on which the impugned Act has

been enacted would also be invalid and in that event, rights of other persons

belonging to the unreserved classes and other reserved classes would be violated

because, in that event, persons belonging to those groups or classes would be

deprived of the opportunity of having admissions in certain educational institutions

and public employment to the extent to which persons of groups enumerated in the

Schedule appended to the impugned Act would get such benefit.

104. Thus, in our opinion, without giving any label to the nature of judicial review,

we would examine the legality and validity of the impugned Act, keeping in view the

afore-stated principles. If it is ultimately found that by virtue of the impugned Act,

some rights given to a section of people are abridged in accordance with the

constitutional provisions and that too for upliftment of disadvantaged classes, then

the impugned Act would be legal and valid, but the same would not be valid if found

otherwise.

Methodology followed by the Commission

105. Pursuant to the judgment of this Court in Archana Reddy, on 17.4.2007, the

Backward Classes Welfare Department of the Government of Andhra Pradesh had

addressed a letter to the Member Secretary of the Commission referring the matter

pertaining to identification of backward classes among Muslims in the State of

Andhra Pradesh. The relevant portions of the said letter are as under:

“… in light of the commitment of the Government towards the cause of socially andeducational backward classes of the population, including those belonging to the MuslimCommunity, and taking note of the observations made by the High Court in the saidjudgment and of the developments since the judgment of the Andhra Pradesh High Court, itis decided to make a reference to the A.P. Commission for Backward Classes undersection 9 (1) of the A.P. Commission for Backward Classes Act, 1993 to make a survey /study of the Muslim community in Andhra Pradesh and identify the classes / communities /groups among the Muslim population in the State that can be classified as socially andeducationally backward classes of citizens in the light of the judgment of the Hon’ble HighCourt in W.P.No.13832 of 2005 dated 7-11-2005 and judgment of the Hon’ble supremeCourt in the Indra Sawhney case ( AIR 1993 SC 477), so that special measures likereservations be considered for such groups / classes / communities in terms of Article 15(4), 15 (5), 16(4) and other provisions of the Constitution of India. The report with clear recommendations of the Commission with data pertaining tosuch groups / classes / communities to justify the recommendations should be sent to theGovernment as early as possible.” 106. In the afore-stated letter, the Government had requested the Commission to

conduct a survey/study of the entire Muslim community of Andhra Pradesh and

identify the classes/ communities/groups among the Muslim population in the State

that can be classified as socially and educationally backward so that special

measures like providing reservation can be considered for such groups in terms of

Articles 15 (4), 15 (5) and 16 (4) among other provisions of the Constitution. The

contents of the letter also disclose that the above exercise had to be done by the

Commission purportedly keeping in view the judgment of this Court in

W.P.No.13832 of 2005 dated 7-11-2005 (reported as B. Archana Reddy v. State

of A.P.) and the judgment of the Hon’ble supreme Court in Indra Sawhney I.

107. The 2007 Act was enacted as an earlier attempt of the respondent State had

failed when the afore-stated writ petition challenging Ordinance No.13 of 2005 and

the consequent A.P. Reservation of Seats in the Educational Institutions and of

Appointments/Posts in the Public Services under the State to Muslim Community

Act, 2005, was allowed. In this context, we refer to the relevant portions of the

summary of conclusions of the Hon'ble Supreme Court in Indra Sahwney I at para

859, which were relied upon and followed by this Court in Archana Reddy on the

question of the procedure or method for identification of Backward Classes. The

same read as under:

“859. … … …3 (b) Neither the Constitution nor the law prescribes the procedure or method ofidentification of backward classes. Nor is it possible or advisable for the court to lay downany such procedure or method. It must be left to the authority appointed to identify. It canadopt such method/procedure as it thinks convenient and so long as its survey covers theentire populace, no objection can be taken to it. Identification of the backward classes cancertainly be done with reference to castes among, and along with, other occupationalgroups, classes and sections of people. One can start the process either with occupationalgroups or with castes or with some other groups. Thus one can start the process with thecastes, wherever they are found, apply the criteria (evolved for determining backwardness)and find out whether it satisfies the criteria. If it does — what emerges is a “backward classof citizens” within the meaning of and for the purposes of Article 16(4). Similar process canbe adopted in the case of other occupational groups, communities and classes, so as tocover the entire populace. The central idea and overall objective should be to consider allavailable groups, sections and classes in society. Since caste represents an existing,identifiable social group/class encompassing an overwhelming minority of the country’spopulation, one can well begin with it and then go to other groups, sections and classes.(Paras 780 and 785). (c) It is not correct to say that the backward class of citizens contemplated in Article16(4) is the same as the socially and educationally backward classes referred to in Article15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course,social, educational and economic backwardness are closely inter-twined in the Indiancontext. (Paras 786-789) (d) ‘Creamy layer’ can be, and must be excluded. (Paras 790-793) (e) It is not necessary for a class to be designated as a backward class that it issituated similarly to the Scheduled Castes/Scheduled Tribes. (Paras 794 and 797) (f) The adequacy of representation of a particular class in the services under theState is a matter within the subjective satisfaction of the appropriate Government. Thejudicial scrutiny in that behalf is the same as in other matters within the subjectivesatisfaction of an authority. (Para 798)(4) (a) A backward class of citizens cannot be identified only and exclusively withreference to economic criteria. (Para 799) (b) It is, of course, permissible for the Government or other authority to identify abackward class of citizens on the basis of occupation-cum-income, without reference tocaste, if it is so advised (Para 800).(5) There is no constitutional bar to classify the backward classes of citizens into backwardand more backward categories (Paras 801 to 803).(6) (a) and (b) The reservations contemplated in clause (4) of Article 16 should not exceed50%. While 50% shall be the rule, it is necessary not to put out of consideration certainextraordinary situations inherent in the great diversity of this country and the people. Itmight 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 the conditionspeculiar to end characteristic of them need to be treated in a different way, some relaxationin this strict rule may become imperative. In doing so, extreme caution is to be exercisedand a special case made out. (Paras 804 to 813) (c) The rule of 50% should be applied to each year. It cannot be related to the totalstrength of the class, category, service or cadre, as the case may be. (Para 814) (8) While the rule of reservation cannot be called anti-meritarian; there are certainservices and posts to which it may not be advisable to apply the rule of reservation. (Paras832 to 841)

(9) There is no particular or special standard of judicial scrutiny applicable to mattersarising under Article 16(4). (Para 842)(13) The Government of India and the State Governments have the power to, and oughtto, create a permanent mechanism — in the nature of a Commission — for examiningrequests of inclusion and complaints of over-inclusion or non-inclusion in the list of OBCsand to advise the Government, which advice shall ordinarily be binding upon theGovernment. Where, however, the Government does not accept the advice, it must recordits reasons therefor. (Para 847)(14) In view of the answers given by us herein and the directions issued herewith, it is notnecessary to express any opinion on the correctness and adequacy of the exercise doneby the Mandal Commission. It is equally unnecessary to send the matters back to theConstitution Bench of five Judges. (Paras 848 to 850)”

108. In Archana Reddy, this Court had declared Ordinance No.13 of 2005 and

the consequent A.P. Reservation of Seats in the Educational Institutions and of

Appointments/Posts in the Public Services under the State to Muslim Community

Act, 2005 as unconstitutional on the ground that the Ordinance and the 2005 Act

were violative of Articles 15 (4) and 16 (4) of the Constitution. This Court held

therein that the conclusions arrived at by the Commission for suggesting the

Backward Classes were based on identification and application of irrelevant criteria

to a grossly inadequate data collected by the Commission. It was further held that

since declaration of 5% reservation for the entire Muslim community in educational

institutions and public services was based on religion and the total reservation to

the backward classes, including 5% reservation to Muslims, was exceeding 50%

ceiling limit, the impugned Ordinance and the Act were not sustainable and were

liable to be set aside. The relevant portion from the summary of conclusions in the

above judgment reads as under:

“… … …

377. … When a legislation or executive action providing reservations is challenged before

the Constitutional Court, primary scrutiny should be searching and strict scrutiny. Primary

review is mainly concerned with the legislative competency of the legislation enacting the

impugned law and question whether such legislation or executive action violating the

fundamental rights under Article 14, 15 and 16 of Constitution of India. During such primary

review, so as to satisfy the strict scrutiny test, it is for the State to demonstrate before the

Court that the conditions precedent for exercising the power under Article 15(4) and 16(4)

exist. The burden entirely lies on the State to prove and justify the legislation when such

legislation prima facie is suspect of being unconstitutional. However, when the secondary

review is taken up to examine the question of irrationality and arbitrariness in the provisions

of the impugned legislation or executive action, the Court need to apply intermediate or

deferential scrutiny by applying Wednesbury principle.

378. ... While determining social backwardness of a class of citizens, an expert body like

B.C.Commission has to necessarily evolve absolutely relevant criteria for the purpose of

caste test, occupation test and means test. Wherever social backwardness is due to a

class of people being born in a homogenous endogamous group called caste with common

traits and rigid customs and social rules, the caste test itself lead to an inference that the

class/caste is socially backward. If the occupation of majority of a class of citizens is

considered inferior and unremunerative, and such class of people is considered lowly

placed in the society, it would ordinarily satisfy the test of social backwardness. The

means test presupposes that by reason of birth in a class of people, historically and

traditionally the entire class suffers from perennial poverty, in which case, the means test

would enable the determination of social backwardness. The B.C. Commission did not

evolve any criteria for identifying social backwardness and did not apply the three tests in a

scientific and objective manner.

379. … the B.C. Commission at the stage of collecting preliminary data, evolving criteria

and conducting public hearings for the purpose of hearing objections from the public, did

not take such steps which can be called transparent and fair. Though, the nature of

enquiry by B.C.Commission cannot be strictly treated as quasi-judicial, but still while

undertaking an exercise for identification of backward class of citizens, the Commission is

legally bound to be fair and transparent and afford all such opportunity to objectors and

proponents for effective representation before the Commission. The prior non-publication

of criteria and data collected by the B.C.Commission renders the report of the

B.C.Commission illegal being contrary to provisions of B.C.Commission Act and principles

of fairness.

380. ... The sample collected by the B.C.Commission is not representative of the

population both with reference to general population and Muslim population. The sampling

design is defective and imperfect. The analysis of the data by the B.C. Commission is

faulty for more than one reason. So to say, the collection of the data, the analysis of the

data and the conclusions drawn from the data are not scientific and B.C. Commission

totally failed in considering the reference made to it in an objective manner after taking into

consideration the entire population, as mandated by the nine-Judge Bench of the Supreme

Court in Indra Sawhney-I. 381. ...The B.C. Commission laid over-emphasis on educational backwardness and

economic backwardness of Muslim community in coming to the conclusion that Muslims

are socially backward. This is contrary to the law laid down by the Supreme Court in

Balaji, Jayasree, Vasanth Kumar and Indra Sawhney-I, to the effect that mere poverty,

economic backwardness and educational backwardness are not indicative of social

backwardness which is unignorable conditionality for operating Article 16(4) of the

Constitution of India. To be branded as a socially backward, apart from poverty, economic

backwardness and educational backwardness, there should be something more in a class

of citizens for qualifying for the benefit of reservation. The B.C.Commission totally ignored

this aspect of the matter and therefore its report cannot stand the scrutiny of this Court.

The B.C.Commission and the impugned Ordinance which is entirely based on it is

unconstitutional and ultra vires Articles 15(4) and 16(4) of the Constitution of India.

382. ... The impugned Ordinance is religion specific aimed at providing five per cent

reservation to Muslim community. The preamble, the long title and Sections 3, 4 and 5 of

the impugned Ordinance abundantly make it clear that it is a legislation intended to benefit a

class of people who belong to Muslim community. Such legislation is violative of Article

15(1) and 16 (2) of Constitution of India and therefore void.

383. … The action of the State in making a single point reference to B.C. Commission,

though number of claims for inclusion in the list of backward classes by other communities

are pending, does not in any manner violate Article 14 of Constitution of India.

… … …”

109. While allowing the writ petitions, Archana Reddy had given the following

directives in paragraphs 114, 293, 378 and 379, which read as under:

“1) There must be a causal nexus between the Islamic faith aggregate and the pursuit ofcertain professions, trades or humble economic circumstances. (para 114)2) The very purpose of issuing notification inviting objections and conducting publichearings, would be defeated if the criteria is not decided prior to undertaking the collectionof data and putting the objectors on notice. (para 293)3) While determining the social backwardness of a class of citizens, an expert body likeB.C. Commission has to necessarily evolve absolutely relevant criteria for the purpose ofcaste test, occupation test and means test. (para 378)4) While undertaking an exercise for identification of backward class of citizens, theCommission is legally bound to be fair and transparent and afford all such opportunity toobjectors and proponents for effective representation before the Commission. (para 379)”

110. At this stage, we cannot ignore that the law laid down by this Court in

Archana Reddy still holds the field, though its validity has been questioned before

the Hon’ble Supreme Court in Civil Appeal No.7513 of 2005. In the said Civil

Appeal, the Hon’ble Supreme Court, by its order dated 04.1.2006, while directing

maintenance of status quo with regard to admissions into educational institutions,

has observed:

“Having heard the learned counsel and having perused the constitutional provisionsand the Report as also the impugned judgment, we are not inclined to stay the operation ofthe impugned judgment and make operational a law which has been invalidated by the HighCourt, as an interim measure. In view of the above, there will be a limited stay, aboveindicated.”

111. It is also pertinent to mention that the observations made by this Court in

Archana Reddy are in conformity with the guiding principles laid down by the

Constitution Bench in Indra

Sawhney I. The learned advocates appearing for the parties concede the position

that the Commission was bound by the methodology suggested in the afore-stated

two judgments while collecting data for determining whether a particular group can

be considered as backward for the purpose of recommending affirmative action by

the State.

112. As per the procedure suggested in Indra Sawhney I and this Court in

Archana Reddy, the Commission --

1) must notify the proposed criteria, invite objections and suggestions to thesaid criteria and conduct public hearings by putting the objectors to notice. Basedon the responses, it must formulate rational, scientific and objective criteria fordetermining the caste test, occupation test and the means test;2) can adopt any method/procedure for identification of social andeducational backwardness of a particular class/group, but it has to conduct a fieldsurvey covering the population of a particular class of citizens, record oral anddocumentary evidence, apply the criteria evolved earlier to the data collected and

find out whether the data of that particular class satisfies the criteria so evolved fordeclaring them as socially and educationally backward; 3) has to investigate whether the said backward classes are inadequatelyrepresented in the services of the State and if not, should give its reportrecommending for inclusion of such classes into the list of backward classes.

113. Now, we have to see whether the Commission had followed the afore-stated

principles and methodology while drawing up its report and recommending the

specified Muslim groups as being socially and educationally backward and for their

inclusion in the list of Backward Classes.

114. It has been submitted by the petitioners that, when in the year 1994, the

Government had requested the Commission to undertake revision of the socio-

economic position of all castes in the State and the matter was pending, the

Government of Andhra Pradesh ought to have waited till the report was given by the

Commission, or ought to have requested the Commission to expedite the revision

and submit its report. It has been further submitted that the State Government had

hastily taken up the issue of providing reservation to Muslims alone when the

claims of 112 other castes/groups were pending before the Commission. It has

been further submitted by the petitioners that -

1) The Commission had failed to i) evolve and notify any criteria, ii) conduct a

survey to ascertain the comparative backwardness among Muslims and/or others;

iii) identify the social and educational backwardness; iv) furnish necessary material

to the objectors prior to public hearing; v) produce any material in support of

‘inadequate representation’ as required under Article 16 (4) of the Constitution; and

vi) evaluate the reports of Anantaraman, Mandal, Muralidhar Rao and National

Commission for Backward Classes (NCBC);

2) When the Commission itself was in existence, the very appointment of Mr.

P.S. Krishnan for identification of backwardness among Muslims was ultra vires the

1993 Act and Article 162 of the Constitution;

3) Mr.P.S. Krishnan had relied on the articles written by different authors and

published in People of India Series compiled by the Anthropological Survey of India

(AnSI);

4) Dependence by the Commission on Mr. Krishnan's report was illegal and

in contravention of the directions of the Supreme Court in Indra Sawhney I and of

the High Court in Archana Reddy as the exercise of classification by Mr.Krishnan

was wholly irrelevant to Articles 15 (4), 16 (4);

5) The share of Muslims in public employment was 9.09% at the relevant

time and that was commensurate with their population percentage in the State. The

sample size collected by the Commission was not in proportion to the Muslim

population. Reservations provided to the backward classes under the four

categories 'A', 'B', 'C' and 'D' were based on the population, whereas category 'E'

had been included by virtue of the 2007 Act;

6) Though this Court, in B. Archana Reddy, has observed that to tide over

all the infirmities, there should be an increase in the sample size, and the

Commission had also expressed its view that sample size of not less than 2% was

necessary for a fair result, the samples collected by it were not even 1/38th of the

standard sample size;

7) The Commission did not declare on what basis it had determined social

backwardness. It did not define even conceptually the terms “educational

backwardness”, “social backwardness” and “inadequate representation in the

services under the State”'. It also did not explain the total educational deficiency

among the Muslim groups. The data of 2001 Census does not support the

conclusion of the Commission that Muslims are socially and educationally

backward;

8) The recommendations of the Commission were deficient because it had

failed to gather and compute the data of individual population of each of the 32

Muslim groups so as to declare that they were inadequately represented, and

enclose the same with the report. The Commission had assumed on the basis of

illusory data that Muslims were under-represented;

9) Though the process of collection of data, compilation of the survey

material and discussion on the collected material was completed by 29.6.2007

(27.6.2007, as stated in the report), the Commission had submitted its report on

02.7.2007, which is about 206 pages, within a span of two days after analyzing the

data collected by it, which legitimizes an inference as to inadequate application of

mind to a solemn exercise.

115. On the other hand, it has been submitted on behalf of the State and the other

respondents that --

1) Even prior to the 2007 Act, all the Scheduled Caste converts were placed

under one group viz., Group 'C' and simply because the 14 identified groups

belonging to Muslim community were included in the list under a separate Group

'E', the impugned Act cannot be termed as religion specific. If the newly identified

groups were included in the already existing groups, they could not have competed

with the other backward classes and, therefore, they were shown in a separate

group;

2) i) The process of reviewing the existing backward classes in the list under

Section 11 of the 1993 Act is different from the process of identifying the backward

classes under Section 9 (1) and the Act does not prohibit inclusion of new groups or

classes in the list, pending the revision. There was nothing wrong if the

Commission looked into some of the claims out of 112 claims, which included even

the claims made by the persons belonging to unreserved classes like Brahmin,

Vaishya, Velama etc.; ii) the claimants whose cases were pending consideration

before the Commission had not approached this Court, and the petitioners, who are

not concerned with the claimants, could not plead or advocate the case of those

claimants;

3) i) There cannot be a uniform procedure/criteria for identification of backward

classes; ii) the body entrusted to identify the backward classes can adopt such

approach and procedure, as it deems appropriate, but such approach should be

rational; iii) Neither in Indra Sawhney I nor in any other case has the Hon'ble

Supreme Court has ruled that the criteria evolved or adopted by the Commission

needs to be published. The 1993 Act also would not obligate the Commission to

publish the criteria evolved by the Commission; iv) it is not open to the Courts to

scrutinise the criteria evolved by the Commission in minute detail; v) in the cases on

hand, the Commission was only asked to identify SEBC Muslims keeping in view

the judgments delivered in Indra Sawhney I and Archana Reddy, whereas the

previous Commissions viz., Anantaraman, Muralidhar Rao and Mandal were asked

to lay down the criteria. Even otherwise, the previous Commissions had published

the criteria after the entire exercise was completed i.e. after hearing all the

objections and while preparing the report, but not before preparing their reports; vi)

the petitioners had not challenged the reference letter dated 19.7.2005 in the writ

petitions;

4 ) There was no prohibition on the State Government either under the

Constitution or under any statute to entrust the work relating to collection of

necessary material through an expert like Mr.P.S. Krishnan, for fulfilling its

constitutional obligation. The Commission’s function would be only to submit its

report for making recommendations or giving advice to the State Government and it

would be for the State to take appropriate final decision. Mr. Krishnan's

appointment for the purpose of gathering information on the issue, while

simultaneously referring the matter to the Commission on the subject, was well

within the powers of the State Government;

5) i) Under Section 9 (1) of the 1993 Act, “examine” and “hear” are two different

expressions used for two distinct functions referred to therein and, therefore, when

the Commission performs the function of “examining” the requests for inclusion of

any class of citizens as backward class in the list, the question of “hearing” the

petitioners does not arise. ii) A decision, which has no adjudicatory character,

cannot comprise the subject of judicial scrutiny;

6) Mr. Krishnan's function was to discover the occupational and other social

groups of Muslims, having regard to their historical and sociological background

coupled with their contemporary positions and Mr. Krishnan had studied the subject

scrupulously and carefully by relying on various sources, and only after collecting

and suitably analyzing the data in a proper manner and after considering the same

from various angles, he had submitted his well considered report after thorough

application of mind. AnSI report was based on anthropological study, dealing with

social strata of various groups, but not in the context of Articles 15 and 16.

Mr.Krishnan had relied on AnSI report only for identifying the existence of distinct

homogenous groups in the Muslim community;

7) There was nothing wrong if the Commission used the sound material like

Mr.Krishnan's report. It had not only relied on Mr.Krishnan's report, but had also

followed the ‘fast track’ and ‘rough and ready criteria’ adopted by the National

Commission for Backward Classes (NCBC), besides following the criteria evolved

by the Mandal Commission for identifying Backward Classes among non-Hindu

communities. The Commission had also conducted an independent

enquiry/survey, as it deemed necessary. The findings of the Commission on the

backwardness of “Atchukattlavandlu” and “Turaka Kasha” were solely based on is

own efforts and Mr.Krishnan’s report had no role in the said conclusion;

8) i) Though the percentage of employment of Muslim community in the State

Public employment was 9.262%, which was more than their population proportion

of 9.17%, their employment had mainly concentrated in Class III and IV posts. The

percentage of SEBCs among Muslims in public employment was much less in

Class III and IV posts and it was negligible in higher posts. ii) The public

employment obtained through reservation cannot be counted to compute and

assess adequate representation in the services under the State; iii) it has to be seen

whether a particular group is adequately represented in higher cadres of public

employment and merely because some groups occupy places in public

employment in the lower rung, the same cannot be treated as adequate

representation in public employment in its true spirit and sense;

9) The survey conducted by the Commission was to ascertain contra-evidence,

if any. The Commission had conducted the survey by making inquiries from more

number of persons than surveyed by the earlier Commissions. Adequacy or

inadequacy of the sample or survey cannot be gone into by this Court and

sufficiency of material gathered by a fact finding body would not fall within the ambit

of judicial scrutiny;

10) i) Though the Commission was aware of the total population of Muslims, the

details of population with regard to the individual communities were not available

and unless the Commission had the figures of the population of the individual

groups, it was not possible for the Commission to fix the size of the sample to be

studied for collection of data of particular communities. ii) Absence of caste-wise or

group-wise census was no bar for identification of SEBC Muslims and the survey

that had been conducted by the Commission was to cross-check whether a

particular community existed elsewhere in the State or not;

11) The petitioners had neither pleaded that the identified groups were not

socially and educationally backward nor had questioned the action of the

Commission in identifying the backwardness of the identified groups on the basis of

their traditional occupation. There was no plea, in any of the writ petitions, that in

Andhra Pradesh, the 14 identified groups were not in existence and no contra-

material had been placed by them to show that the identified groups were socially

and educationally advanced.

116. In view of the above competing submissions, firstly, we may notice the

functions of the Commission, which are enumerated in Section 9 of the 1993 Act,

which read as under:

“9. The functions of the Commission are:1) to examine requests for inclusion of any class of citizens as backward classes inthe list and hear complaints of over inclusion or under inclusion of any backward class insuch list and tender such advise to the Govt. as it deems appropriate,2) to make recommendations on any other matter relating to the backward classesthat may be referred to it by the Govt. from time to time,3) to make an interim report in regard to any castes or classes in whose caseurgent action, necessary under the Act in the opinion of the Govt.,4) to enquire into specific complaints with regard to the non-observance of the ruleof reservation in the admissions into educational institutions and also reservation ofappointments to posts/services under the Govt. and other local authorities or otherauthority in the State.

117. A reading of the provisions of Section 9 shows that besides other functions,

the Commission has to examine the requests for inclusion of any class of citizens,

hear complaints of over-inclusion or under-inclusion and make recommendations

on any other matter to the Government relating to backward classes.

What the Commission did

118. In terms of the reference made by the Government vide letter dated

17.4.2007, the Commission had conducted a survey and submitted the report to the

State Government, which is placed on record of the writ petitions. A detailed

perusal of the report discloses that the Commission had sub-divided its report into

six chapters viz., 1) introduction, 2) constitutional provisions, 3) methodology

followed by the Commission, 4) statistics regarding Muslim communities in A.P., 5)

social groups, survey and analysis and 6) recommendations. It can be seen from

Chapter III of the report that the Commission had issued a public notification on

26.4.2007 inviting representations, suggestions and objections on the inclusion of

certain communities/groups/classes among Muslims in the list of backward

classes. In this notification, the Commission mentioned that though previously

some of the Muslim groups viz., 1) Fakeer (Darvesh), 2) Pakeerla (Bonthala), 3)

Labbi/Labbai, 4) Qureshi (Muslim Butcher), 5) Muslim Rajakas, 6) Thuraka Kasha

and 7) Achukatlavandlu (Muslim) had already made representations for their

inclusion into the list of backward classes, keeping in view the terms of the

reference, it had decided to call for the representations/ suggestions/objections in

the matter of inclusion of all classes/communities/groups among the Muslim

community from all interested persons. The Commission had accordingly

conducted the first round of public hearings on 14.5.2007, 15.5.2007, 16.5.2007,

22.5.2007, 28.5.2007 and 01.6.2007; and had received several representations

from the individuals and associations – some in favour of inclusion of the Muslim

community as a whole and some for inclusion of certain occupational groups

among Muslim community in the list of backward classes. In all, the Commission

was requested to include 37 Muslim groups into the list of backward classes. It can

also be seen from Chapter III that the Commission had also received objections

from five individuals/associations for inclusion of Muslims in the list of backward

classes. Shri K. Kondal Rao, Advocate, Hyderabad (the petitioner in Writ Petition

No.25282 of 2007 and a party-in-person), is one of the objectors before the

Commission.

119. Upon perusal of Chapter III, it is found that Mr. P.S. Krishnan, a retired IAS

Officer had been appointed as Advisor to the Department of Backward Classes

Welfare for identifying SEBCs among Muslim communities in Andhra Pradesh.

Mr.Krishnan had submitted his report and the said report had been forwarded by the

Principal Secretary to the Government, Backward Classes Welfare Department, to

the Commission on 11.6.2007. The said report was put on website on 12.6.2007 by

the Commission for information to the public at large and for the purpose of inviting

views, suggestions, and objections from the public. The Commission had also fixed

a Schedule whereby objections and views of people were to be received and public

hearing on the subject was to take place. Hearing was given to the public at large

on the afore-stated subject by the Commission from 23rd to 26th June, 2007.

120. It is also borne out from Chapter III that the Commission, apart from the report

of Mr.P.S. Krishnan, had referred to the reports of Justice Ranganath Mishra, Justice

Rajindar Sachar and had concluded that the approach adopted by Mr.P.S.Krishnan

was realistic, valid and legally sustainable. The Commission had also deputed a

survey team headed by the Deputy Director (Statistics) to conduct door-to-door

survey so as to gather the relevant data. The survey team had formulated a

questionnaire for identification of socially and educationally backward classes in

the Muslim community, namely: a) social status, b) occupation, c) aspects of

discrimination with regard to profession, occupation, social situation, d) economic

status, e) details of ownership of movable and immovable property etc. f) status of

indebtedness, g) access to amenities like telephone, personal transport, h) details

of residence and whether living in a slum, i) literacy and level of education

completed and j) details of employment, if any, in public services. The Commission

had apparently deliberated on the survey data and the analysis thereof is set out in

Chapter V of its report.

121. It can also be seen from Chapter III of the report that the Commission had

referred to the guidelines adopted by the National Commission for Backward

Classes for consideration of requests for inclusion and complaints of under-

inclusion in the Central List of other Backward Classes§, especially the guidelines

for those questions which pertain to “fast track”† and the two criteria of Mandal

Commission for identification of socially and educationally backward classes in

Non-Hindu Communities.

122. Chapter-IV of the Commission's report deals with the statistics of Muslim

communities in Andhra Pradesh. In this chapter, the Commission has referred to

the list of Muslim communities and other minorities, who were declared as other

backward classes at the all India level. The Commission had gathered this list from

the National Backward Classes Commission in 2006. The Commission had

incorporated the details of percentage of Muslims selected in various entrance

examinations and in various recruitments and observed that the low figures shown

in the tables included Muslim BC groups for whom there was reservation and the

other Muslim groups, who were not socially backward. It is also mentioned in this

Chapter that the figures collected by the Commission in 2001 would show that out

of the 9,48,980 employees working in 27 departments, 77,919 were Muslim

employees, other than those of the reserved category. There were also 587 Mehtar

and 9389 Dudekula Muslims, who belonged to the reserved category. The

Commission expressed its inability to segregate the Muslim employees group-

wise. The Commission categorically admits that it could not obtain the relevant

figures for some of the groups of Muslims, who were under its consideration.

123. A mention is also made in Chapter IV of the report that the Chairman of the

Commission had addressed a letter to the Chief Secretary to the Government on

05.5.2007 to direct all the Heads of Departments to furnish the particulars of

persons belonging to groups/classes among Muslim community and on 08.5.2007

the Government had asked all the Secretaries to furnish the particulars to the

Commission. In that letter, the Commission had sought information in respect of

only seven social groups among Muslims viz., 1) Fakeer (Darvesh), 2) Pakeerulu

(Bonthala), 3) Labbi/Labbai, 4) Qureshi (Butcher), 5) Muslim Rajakas, 6) Turaka

Kasha and 7) Achukatlavandlu and had received information in respect of these

seven social groups. The Commission clearly records that it could not collect any

information with regard to the other social groups of Muslims, since their cases had

come up before it at a subsequent date i.e. after 05.5.2007.

124. The Commission had forwarded its recommendations for inclusion of several

classes of Muslims in the list of backward classes without information and data.

The Commission did not explain the urgent need for recommending the other so-

called social groups of Muslims viz., 1) Guddi Eluguvallu, 2) Siddi, 3) Garadi, 4)

Attar Saibulu, 5) Gosangi Muslim, 6) Shaik/ Sheik, 7) Hajam/Nai and 8) Shia Imami

Ismaili/Khoja, 9) Arab 10) Bohara, 11) Syed/Saiyed/ Sayyad/Mushaik, 12)

Mughal/Moghal, 13) Pathan, 14) Navayat,

15) Irani, 16) Kutchi Memon, 17) Jamayat, for their inclusion in the list of backward

classes without making even minimal effort for gathering information and data

regarding these groups.

125. The Commission dealt with the survey and analysis of the community status

among Muslims in Chapter V of its report. At the commencement of this Chapter,

the Commission has stated that the survey details of social groups of Muslims are

based on the description of each social group by the Anthropological Survey of

India in its book “People of India”. In this Chapter, the Commission has referred to

the identity, synonyms, geographical location, special dress, background, social

status, educational status, employment status, economic status of 1) Faqir/Fhakir

Budbudki, 2) Borewale, 3) Labbai/Labbi, 4) Qureshi/Kureshi/Khureshi, 5) Dhobi

Muslim/ Muslim Dhobi/Dhobi Musalman, 6) Chakketakare, 7) Achukatlavandlu

(Muslims), 8) Guddi Eluguvallu, 9) Siddi, 10) Garadi/Garadi Muslim, 11) Attar

Saibulu, 12) Gosangi Muslim, 13) Shaik/Sheikh, 14) Hajam/Nai/Navid, and to the

recommendations made by Mr. P.S.Krishnan in his report and then has recorded its

recommendations that since the above groups belonged to the lower strata and that

they were socially and educationally backward, they deserved to be included in the

list of backward classes. The Commission has also considered other groups of

Muslims viz., 1) Shia Imami Ismaili/Khoja, 2) Arab, 3) Bohara, 4) Syed/Saiyed/

Sayyad/Mushaik, 5) Mughal/Moghal, 6) Pathan, 7) Navayat, 8) Irani, 9) Kutchi

Memon and 10) Jamayath and observed that these communities enjoyed a high

social status and were not socially backward and, therefore, were ineligible for

inclusion in the list of backward classes.

126. Chapter VI of the report of the Commission deals with its recommendations.

In this Chapter, the Commission has observed that the Ahle Hadeeth, Ahle Sunnath

Wal Jamat,Mahadavis, Sunni, Shia, Tableegi, Wahabi, who had made requests for

inclusion in the backward classes list, were all religious denominations or sects and

not social groups and, therefore, it advised the government that their requests be

rejected. The Commission has, however, recommended for inclusion of other

Muslim groups, excluding 1) Syed/ Saiyed/Sayyad/Mushaik, 2) Mughal/Moghal, 3)

Pathans, 4) Irani,

5) Arab, 6) Bohara, Bohra, 7) Shia Imami Ismaili, Khoja, 8) Cutchi-Memon, 9)

Jamayat and 10) Navayat and all the synonyms and sub-groups of the above

excluded groups and except those who have been already included in the State list

of backward classes. The reason given for inclusion of “other Muslim groups” is

given as under:

“V (c). Commission also considered item 14 of the recommendation of the Advisor ShriP.S. Krishnan. It notes that this principle of excluding the socially advanced classes ofMuslims has been in practice in the Central OBC lists for Kerala and Karnataka. Thisexclusion ensures that only the socially and educationally backward come into the BC listand should give confidence about the correctness of the inclusions. Further, it is also afact that there may be communities or groups that are so remote and lacking in awarenessthat they have not moved for inclusion, and the State and its institutions and also academicscholars have not been able to reach out to them. Such groups will also be automaticallycovered under this item. They will then not have to lose time making requests and waitingfor the Commission's enquiry and advice and Government's orders which is a timeconsuming process. One more important factor in favour of this item is that, in the varioushearings and reports in the newspapers many Muslim groups have expressed the feelingthat the Muslim community has evolved over time, that many of them have left theirtraditional occupations and moved over to the towns and cities and have left behind theirancient moorings, that many of them are not well to do and that there may be somesegments of the Muslim population who would not like to be associated with the oldprofessions which are considered as socially inferior or due to the basic egalitarianprinciple of Islam. Such groups would be covered under “Other Muslims”. TheCommission also feels that this clause cannot be misused as all identified socially non-backward groups are proposed to be excluded as proposed in Chapter V (15) and furtheras the creamy layer is proposed to be excluded. Hence, the Commission agrees with thisrecommendation of Sri P.S. Krishnan and recommends inclusion as item (15) ...”

127. Now, we may briefly peruse the reports of the Anantaraman and Mandal

Commissions with regard to the procedure/criteria followed by them, not for

comparison, but to have an idea as to the methodology adopted by those

Commissions for identifying the social and educational backwardness. We are

referring to the reports of these Commissions because Anantaraman Commission

was the first Commission appointed by the State of Andhra Pradesh, whose report

has been upheld by the Supreme Court in Balaram. As regards the report of the

Mandal Commission, the Commission was constituted for identifying the backward

classes throughout the country, and the Hon’ble Supreme Court in Indra Sawhney I

has observed that the Commission had made its recommendations on the basis of

massive statistics collected by it and accordingly upheld its report holding that the

recommendations made therein were supportive of affirmative action programmes.

128. A study of the Anantaraman Commission report discloses that it had

provided opportunity to all individuals, associations and organisations to express

their views and had issued a questionnaire suggesting criteria so as to give a

chance to the people to show under which criteria they can be regarded as

backward. In pursuance of this effort, the said Commission had received many

replies and memoranda expressing divergent views and some suggestions to

determine social and educational backwardness. In that process, the Anantaraman

Commission had also noticed the criteria followed by the other State Governments

and the Backward Classes Commission appointed by the Government of India.

After examining various suggestions and views and the criteria followed by the

other State Governments, the Anantaraman Commission had spelt out various tests

for determining social backwardness. Therefore, it becomes clear that the said

Commission had followed a rational and scientific method for laying down the

criteria for identifying social and educational backwardness.

129. In its report, the Mandal Commission observed that the objective tests and

criteria for proper classification of socially and educationally backward classes had

to be laid down because the recommendations of the first Backward Classes

Commission (Kaka Kalelker Commission) were rejected on that score. The Mandal

Commission had employed great care to collect facts and figures relevant for the

purpose. It had issued three different questionnaires to the State Governments, to

Central Ministries/Departments and to the General Public, voluntary organisations,

etc. The information collected in response to these questionnaires was

systematically compiled and analysed and then it had evolved criteria on the basis

of field investigations and other independent evidence. Even in respect of fixation

of the sample size, the Mandal Commission had obtained the views of the experts’

panel and the technical advisory committee and on the basis of the advice, it was

decided that 100% coverage of two villages and one urban block in each district of

the country would be adequate as 1% sample of the country's population might be

too large. The Commission, after having wide ranging discussions, evolved eleven

indicators or criteria for determining social and educational backwardness. These

indicators were grouped under three broad heads viz., social, educational and

economic and separate weightage points were given to them.

130. The present Commission had neither evolved any criteria nor published the

same before inviting objections except stating that it had followed the two criteria

evolved by the Mandal Commission for identification of SEBCs among non-Hindu

communities. The Commission had also not finalized the criteria after hearing the

objectors. What the Commission had done is that it had issued a public notification

inviting representations, suggestions and objections on the inclusion of only seven

Muslim groups viz., 1) Fakeer, 2) Pakeerla, 3) Labbi/Labbai, 4) Qureshi, 5) Muslim

Rajakas, 6) Turka Kasha and 7) Achukatlavandlu. It did not notify the criteria and

the factors which it intended to consider or apply before proceeding further in

identifying social and educational backwardness of the above Muslim groups. This

procedural error committed by the Commission is fatal to its report and its

consequent recommendations.

131. Another important aspect is with regard to obtaining relevant data to

ascertain whether the groups of Muslims, who have been included in Group ‘E’

were, in fact, socially and educationally backward. In order to ascertain whether the

members of a particular group are socially and educationally backward for giving

them the benefit of reservation, the Commission was required to collect the relevant

data and upon analysis of the data regarding social status, education, income etc. of

persons belonging to that group with that of the others, it ought to have considered

whether persons belonging to the particular group are socially and educationally

backward or socially backward and under-represented in public employment, as the

case may be.

132. For the afore-stated purpose, necessary survey should have been conducted

by the Commission either by means of collecting data with regard to the entire

population or by adopting a scientific sampling method. Perhaps, to collect data

with regard to the entire population is difficult and in such cases, data may be

collected on scientific basis by adopting any of the standard and well established

methods of sampling. For determining the size of the sample, first of all the size of

the population must be ascertained. Upon knowing the population size, the

concerned person or the Commission should have decided the size of the sample

and the locations from where the sample was to be collected for gathering the

relevant data.

133. It is deplorable that in the instant case, the Commission was not aware about

the total population of the persons belonging to the groups of Muslims, who have

been included in Group ‘E’. It is an admitted fact that the Commission was not

having details about total population of the groups, which have been included in

Group ‘E’. In our considered opinion, it is necessary to know the total population

because, for the purpose of determining the size of the sample, it is necessary to

know the total population. In Indra Sawhney I, on the basis of the report submitted

by the Mandal Commission, it has been observed that the sample size of 1% of the

country's population comprising 65 lakh persons may be too large, especially in

view of the limited time available to it. Unless one knows the total size of the

population, it cannot be decided as to how big or small the sample size should be.

134. In the absence of any idea with regard to the population of persons

belonging to each of the groups included in Group ‘E’, we fail to understand how the

Commission could have decided upon the sample size. In fact, the sample size had

not been determined by the Commission. Therefore, the procedure of collecting

data by sampling was perverse.

135. It is also important to consider whether the authority collecting the data is

collecting the data by itself or is relying upon the data collected by somebody else,

which is popularly known as secondary data.

136. In the instant case, the Commission has relied upon the secondary data

because, it has relied upon the data collected by the AnSI and Mr.Krishnan. While

relying upon the secondary data, it is very important to know the purpose for which

someone else had collected the data. If the purpose for which another

person/agency had collected the data and the purpose for which the data is being

used by the Commission are unconnected, the final conclusion arrived at by the

Commission on the basis of such secondary data would be incorrect. The data

collected by the AnSI was clearly not for the purpose of determining whether the

persons in respect of whom the data was collected were socially and educationally

backward classes. We have already referred to hereinabove the purpose for which

the AnSI had collected the data. Looking to the variance of the purpose for which

the data was collected by the AnSI and the purpose for which the Commission had

used the same, in our opinion, the conclusions by the Commission on the basis of

the said data cannot be sustained and it would not be legitimate for the State to

formulate a reservation policy on the basis of such irrelevant recommendations by

the Commission.

137. A perusal of the report of the Commission, particularly in relation to the

methodology of the survey conducted by it, shows that the Commission had

deputed a survey team to conduct door-to-door survey in the field, but, in fact, there

is nothing to show that an appropriate sample size/percentage was determined and

the sample of the population scientifically studied. It has been submitted across the

Bar that the survey was conducted to cross-check whether the data already

collected was correct and the so-called fast-track method was adopted to

collect/cross check the data. It is true that the Commission can adopt any

methodology suited for the purpose, but it should commensurate with the standard

methods of sampling, as discussed above. To us, it appears that the fast-track

approach adopted by the Commission was nothing but a non-scientific method of

sampling, which is otherwise known as “opportunity sampling” or “non-probability

sampling”. In other words, such sample would be drawn from that part of the

population which is close to hand. As the nomenclature itself indicates, the readily

available and convenient sample drawn cannot provide a reasonably correct idea

about the total population, because that sample would not be representative.

Therefore, if the sample is not representative of the population, it cannot be made

the basis for coming to a conclusion.

138. The above conclusion of ours may be tested with the report of the

Commission in comparison with the report of AnSI, which was followed by

Mr.Krishnan and the Commission in extenso.

139. In its report, the Commission has stated that according to People of India

Series, 'Atchukatlavandlu (Muslims)' are predominantly living in Kadapa District and

they are distributed in small number in Srikakulam, Vizinagaram and East Godavari

districts, and perhaps for the said reason the Commission had conducted survey in

June 2007 in Kadapa and Adilabad Districts. But, a perusal of the report of AnSI

shows that there is no discussion about this Muslim community, though there is a

discussion about their Hindu counterpart. Perhaps, the traditional occupation of this

community is similar to its counterpart in Hindus, and this might be the reason for

the Commission to recommend its inclusion.

140. With regard to 'Faqir/Fhakir Budbudki', it has been stated in the

Commission's report that though they are distributed all over the State, mainly they

reside in the areas of Banganapalli, Kondampeta, Krishnagiri, Mangampeta,

Sandrapalli, Guwagudu, Vajrakaruru, Pattikonda, Uravakonda, Kadiri, Madanapalli,

Reddipalli and Pamudoddi, which are in the Rayalaseema region of the State.

However, the staff of the Commission had conducted its survey in Warangal,

Karimnagar, Adilabad and Nizamabad Districts, which are in the Telangana region

of the State. Discussing about their social status, the Commission has stated that a

considerable proportion of this community is engaged in the traditional occupation

of begging and most of those who had changed their traditional occupation were

engaged as daily wage labourers in agricultural and non-agricultural activities. A

perusal of the statistics set out in the report of the Commission discloses that this

community is not carrying on its traditional occupation and their percentage of

literacy is 47.04% as against the State average of 60.47%. However, Mr.Krishnan,

who also relied on the AnSI report, describes this community as nomadic and a very

low class, which is mainly dependent on begging and this group is also found in

Hindus, who are already included in the list of backward classes. Perhaps, this

might be the reason for Mr.Krishnan recommending inclusion of Fakir Budbudki in

the SEBC group.

141. As regards 'Siddi' community, the Commission has stated that they are

located in A.C. Guards area of Hyderabad, in addition to their location in other major

cities in the country. According to the report, this community was traditionally

engaged in giving security but at the time of conducting the survey, their source of

livelihood was rickshaw pulling. The Commission justifies its recommendation for

inclusion only because their counterpart in Gujarat was included in Scheduled

Tribe and in the list of backward classes in Karnataka. Mr.Krishnan has also relied

on the AnSI report and observed that as this community is of foreign origin, it

deserved inclusion.

142. So far as 'Garadi' community is concerned, according to the survey

conducted by the Commission, seven households comprising 40 persons had been

surveyed in Medak District. Of those who had been surveyed i.e. 100% of them had

stated that they were not given any discriminatory treatment by the society and they

were also not in their traditional occupation. Moreover, they all had submitted that

they were treated as normal social beings by the other members of the society. In

spite of the above facts gathered by the Commission, it had recommended that

'Garadi' community be treated as socially and educationally backward. It is also

pertinent to note that the total population of the Garadi community was not known.

Therefore, one does not know whether the 40 persons who had been considered

were, in fact, socially, educationally or economically representative of the entire

population of 'Garadi' Muslims in the State.

143. Insofar as 'Gosangi' community is concerned, data from only one family had

been collected by the Commission in Nizamabad District and on the basis of the

information given by that family, the entire community had been recommended for

inclusion in the socially and educationally backward classes list.

144. With regard to the community 'Chakketakare', the Commission had surveyed

six households comprising 29 persons in Adilabad District and on the basis of the

information given by them, the entire community was recommended for being

included in the list of SEBCs.

145. Upon perusal of the report submitted by the Commission, it also appears that

with regard to 'Guddi Eluguvallu', which has been recommended for inclusion in the

list of SEBCs., no survey whatsoever had been conducted and no data had been

collected by the Commission.

146. Likewise, with regard to other communities also, we find that the

Commission had not conducted the survey objectively to justify its

recommendations.

147. What the Commission had done was that it had referred to the reports of

Mr.P.S.Krishnan and that of AnSI and on the basis thereof, it had made its

recommendations without conducting any scientific survey. Moreover, it would not

have been possible for the Commission to conduct a detailed survey within a short

span of about 2½ months. The Commission was requested vide letter dated

17.4.2007 to conduct a survey and submit the report. The report was submitted on

2.7.2007. Meanwhile, on 11.6.2007, the Government had forwarded the report of

Mr.Krishnan to the Commission to examine the same and send its

recommendations at an early date. So, the Commission had relied upon the said

report so as to make its recommendations at an early date without even a minimal

professional effort to find out the facts, which were required for the purpose of

coming to a conclusion whether a particular group of Muslims was, in fact, socially

and educationally backward. If the Commission had formulated its own criteria and

had surveyed even a part of the population of such Muslim groups in a scientific

manner, in our opinion, it could not have made its recommendations so soon. In our

opinion, the hit and run method adopted by the Commission was neither legal nor

sustainable.

148. It is also seen from the record that though compilation of data was completed

on 27.6.2007 (as stated at page 40 of the Commission’s report in Chapter III), some

more data with regard to Shaik, Gosangi, Siddi and Hajam groups had been

collected on 28.6.2007 and 29.6.2007 by visiting Kamareddy in Nizamabad

District. This fact has not been denied by the respondent State or the Commission.

Moreover, the Commission had submitted its report comprising 206 pages to the

government on 02.7.2007. Within a short span of two days, the survey with regard

to the above communities could not have been completed and the report prepared.

It is thus legitimate to infer that either undue haste was employed or, in fact, no

scientific survey was conducted by the Commission.

149. It should also be examined whether the Commission could have relied upon

the report of Mr.P.S. Krishnan and the material collected by AnSI. In our opinion, it

was for the Commission to gather primary data for coming to the conclusion as to

whether a particular group of Muslims was socially and educationally backward for

the purpose of making its recommendations. It was also open to the Commission to

refer to or rely upon some relevant material to verify or cross-check its conclusions

to enable it to make recommendations on the subject. Moreover, the material relied

upon should have a rational nexus with the purposes for which it was collected. On

the same subject, data could be collected for a variety of purposes. Data collected

for one purpose may not be useful for a dissimilar purpose. We, therefore, consider

now the data/reports, which were referred to and relied upon by the Commission.

Data published by Anthropological Survey of India

150. The Anthropological Survey of India had published a set of books - “People

of India” in respect of all the States. The book was published in two parts, which are

inter-related. The first part consists of a 11- volume national series, five of which

contain abstracts on all the communities across the length and breadth of the

country. The data generated in this respect is supported with additional information

from Census and other secondary sources. These volumes include one on the

Scheduled Castes, one on the Scheduled Tribes, and three on all the communities

of India. Two volumes contain data on the languages and scripts and biological

variation in Indian population. Two other volumes present a quantitative profile of

the Indian society and communities, lists of communities and their segments,

synonyms, surnames and titles. The remaining two volumes are on Introduction

and Anthropological Atlas. The second part pertains to the States/Union Territories,

with detailed write-ups on each community of India. Volume XIII of the first part

gives the particulars of the communities relating to the State of Andhra Pradesh.

151. In his note on the books, the General Editor Shri K.S. Singh has stated about

the object behind publishing them. The same reads as under:

‘There is an information gap on a very large number of communities in India andwhatever information that exists on them is scanty or needs to be updated. TheAnthropological Survey of India (AnSI) launched a project on the People of India onOctober 2, 1985. The objective of the project was to generate a brief, descriptiveanthropological profile of all the communities in India, the impact on them of change anddevelopment processes and the links that bring them together. This was in accordancewith the objectives of the AnSI, which was established in 1945. The AnSI has beenpursuing bio-cultural research among different population groups from its eight regionalcentres. Its objectives have been redefined in the policy resolution, adopted in 1985, whichcommits this organization to a survey of the human surface of India.”

152. A reading of the note would also go to show that in its compilation of the lists

of the communities of India under the People of India project, AnSI has taken into

consideration the ethnographic surveys, lists of Scheduled Castes and Scheduled

Tribes drawn up by the Government of India, lists of Backward Classes prepared by

the Backward Classes Commissions set up by various state governments, including

the list mentioned in the Mandal Commission Report. After conducting a survey, in

all, it could identify 4694 communities. It has been further stated in the note that as

many as 500 scholars had participated in the project, including 197 scholars from

26 different institutions. About 3000 scholars had participated in about 100

workshops and several rounds of discussions were held in all the States and Union

Territories. The relevant portion of the note reads as under.

“… The investigators spent 26,510 days in the field, which works out to 5.5 days percommunity studied in the various States and Union Territories of India. Our scholarsinterviewed a large number of people, out of whom we have recorded only the keyinformants i.e. 24,951. This works out to about five ‘informed’ informants per community. Of the informants, 4981 were women. Our instruction to the investigators was to study a

community at two or three places, and in at least two or three cultural regions into whichthe larger States of India are divided. Interviews were conducted in connection with the study of the communities in 3581villages, mostly multi-community villages, and in 1011 towns and cities spread over almostall the districts of India, i.e. 421 districts and 91 cultural regions. We were able, thus, tostudy on an average a community at about two places. … most of the smallercommunities could be studied at only one place since they are not located in more thanone area.”

153. The note would also indicate that 500 scholars had collected the information

from about 25,000 of the informants over the period from 1985 to 1992 and the

percentages relate strictly to the responses made by the informants to the

questionnaire contained in the schedule guideline and computer format and to the

queries made by the investigators at the places of investigation. According to the

note, the responses had been supplemented with the observations of the

investigators, the secondary material from the Census, ethnographic records etc.

and the material had been checked and cross-checked by local scholars at many

levels with other sources of information.

154. It can be seen from parts I to III of Volume XIII that different authors, who were

deputed by the Anthropological Survey of India, had made research over the

existence of different communities in Andhra Pradesh viz.,

1)Achchukattalavandlu/Singamvallu, 2) Attar Saibulu, 3) Dhobi Muslim/Muslim

Dhobi/Dhobi Musalman,

4) Borewale, 5) Chaakketakare 6) Faqir/Fhakir Budbudki

7) Garadi/Garadi Muslim, 8) Gosangi Muslim, 9) Guddi Eluguvallu, 10)

Hajam/Nai/Navind, 11) Labbai/Labbi,12) Qureshi/ Kureshi/ Khureshi, 13)

Shaik/Sheikh, and 14) Siddi, in the areas where they were mostly spread, and

studied about their occupation, custom, daily habitat etc. This was a generic

anthropological study.

Report of Mr.P.S.Krishnan

155. The report of Mr.P.S.Krishnan, a retired IAS officer, contains nine chapters.

They are: I) Introduction, Background and Approach, II) Social ideology of Islam and

social stratification in Muslim societies, III) Emergence and Growth of Muslim

society in India, South India and Andhra Pradesh, IV) Indian caste system and

social stratification in Indian Muslim society, V) Social stratification in South Indian

Muslim society, VI) Social stratification in Andhra Pradesh Muslim society, VII)

Identification of socially and educationally backward classes among Muslims –

General principles and judicial decisions – findings of social backwardness, VIII)

Data analysis and IX) recommendations. In Chapter I of his report, Mr.Krishnan

refers to the task entrusted to him by the Government of Andhra Pradesh on

18.5.2007 vide G.O.Ms.No.21, for preparing and submitting a report on identification

of socially and educationally backward classes in the Muslim population, taking

note of the judgment of this Court in Writ Petition No.832 etc. (probably the

judgment in Archana Reddy) and the judgment of the Hon’ble Supreme Court in

Indra Sawhney I and the subsequent developments, and further materials and facts

since available, so that necessary measures can be undertaken to widen

opportunities for them in various schemes, including, and more particularly,

admission in educational institutions and public employment. It has been further

stated by him that in view of his close association stretching over the last five

decades with Andhra Pradesh as well as all over India in various capacities,

governmental, non-governmental and post-governmental, and in view of his

commitment to the cause of social justice and to the State and the people of Andhra

Pradesh, he had accepted the task as a privilege.

156. It has been stated in Chapter I that his approach towards the task had been

broadly guided by the following aspects: 1) the social structure of the Muslim society

in Andhra Pradesh, and 2) the guidance provided by the Supreme Court and the

Andhra Pradesh High Court, more particularly in the Mandal case (Indra Sawhney

I) in 1992 and the Muslim community reservation case (Archana Reddy) of this

Court in 2005 regarding the constitutional provisions, their interpretation and their

application.

157. In Chapter II, Mr.Krishnan has discussed about the social ideology of Islam

and how the social stratification, contrary to its social ideology, arose in Muslim

society. In this chapter, Mr.Krishnan has referred to the research by Mr. M.K.A.

Siddiqui of the Anthropological Survey of India, who had done research in social

stratification among Muslims, Mr.A.R. Momin, sociologist of the University of

Bombay, who had done research in Indo-Islamic tradition, Mr.Imtiaz Ahmad, former

Professor of Jawaharlal Nehru University, Mr.Ghaus Ansari, a pioneer in the study

of Muslim society, Mr.Hasan Nishat Ansari, Head of the Department of History, SMD

College, Magdh University, Punpun (Patna) and Mr.M.Mohd. Irfan Basha.

158. Chapter III of his report deals with the emergence and growth of Muslim

society in India, South India and Andhra Pradesh. In this chapter, he has discussed

the general role of sufis and traders in the spread of Islam (para 3.1 at pg.13), role of

Sufis and traders in Tamil Nadu and adjacent Andhra area (para 3.3 at pg.14),

social motivation and history behind spread of Islam among masses (para 3.5 at

pg.16), social identities in Indian Muslim society in Deccan and Andhra Pradesh

(para 3.6.10 at pg.40) and has recorded his conclusion at para 3.7 (pg.42) that the

major agencies of the spread of Islam in India were Muslim traders and Sufi

preachers and saints, more particularly in the Peninsula, including Andhra

Pradesh. The bulk of the people who adopted Islam and moved to the Islamic fold

were those who belonged to the lower castes – the same classes which were now

classified as SCs and SEBCs/OBCs in terms of the Constitution. Their prime

motivation arose from the disadvantages, discriminations, indignities and

humiliations they faced under the prevailing caste system and against which they

had been struggling from ancient and medieval times in such ways as were open to

them from time to time.

159. In Chapter VI, Mr.Krishnan has dealt with the social stratification of Muslim

society in Andhra Pradesh. In this chapter, he has discussed about the 1) sources

of information for Andhra Pradesh, 2) pre-independence Andhra District Manuals

and Gazetteers, 3) post-independence Andhra District Gazetteers, 4) pre-

independence Telengana District Gazetteers, 5) post-independence Telangana

District Gazetteers, 6) Thesis on Muslims of Rayalaseema, 7) S.A.A. Saheb's profile

of social hierarchy of Muslims in Andhra Pradesh, 8) People of India (A.S.I.) list of

A.P. Muslim communities/groups, 9) People of India description of A.P. Muslim

communities/groups, and 10) Encyclopaedia of World Muslims list of A.P. Muslim

communities/groups.

160. It has also been mentioned by him in this chapter that according to the thesis

of one Mr.M.Mohd. Irfan Basha of 2005 titled “Socio-economic conditions of the

Muslims of Rayalaseema”, Rayalaseema, comprising four districts, has the largest

percentage of Muslim population i.e. 12.5% among the three regions of Andhra

Pradesh, which, as a whole, has a Muslim percentage of 9.17; whereas the ten

Telengana districts, which were longest in the Nizam's dominion, have 12.43% and

the nine districts of coastal Andhra have only 4.54% Muslims. It has also been

mentioned by Mr.Krishnan that according to Mr.Basha, the Muslims of

Rayalaseema region can be classified as Syeds, Shaiks, Pathan, Qureshi and

Dudekula or Pinjaras and they are not hierarchically ranked castes and that there is

no recognition of untouchability among the Muslims and inter-dining freely occurs at

feasts; that nothing prevents them from having an intermarriage with strangers and

the laws of endogamy and exogamy still have force, at least in some subsections of

Muslims like Sayyids, who want to strictly maintain the purity of blood and some

occupational groups like Dudekula, Khasaab, Dhobi etc. also prefer endogamy.

161. A further reading of this chapter would go to show that of the various social

groups of Muslims in existence in

Andhra Pradesh, only Dudekula or Pinjari or Nurbash has been known, identified

and referred to for a long time. According to Mr.Krishnan, the two recent accounts of

social groups of Muslims of Andhra Pradesh are that of Shaik Abdul Azeez Saheb

and the same is available in 'People of India' Series of the Anthropological Survey

of India on Andhra Pradesh. Mr.Krishnan states that Mr.Saheb had observed that

Muslim castes are occupationally and culturally different. On the study of Mr.Saheb

on the 14 Muslim groups in Andhra Pradesh viz., Syed, Shaik, Pathan, Habbi,

Khureshi, Attar-saibulu, Atar, Gair-e-Mehadi, Chekketakare, Borewale, Garadi,

Hazam and Fhakir-budbudki and Dudekula, Mr.Krishnan has stated as follows:

“6.7.1 … These are formed on the basis of their traditional occupation and areendogamous. In social hierarchy, the Syeds occupy the top place, since they form thetraditional clergy. They claim that they are the true descendants of the prophet. Shaiksclaim the second place, who are believed to be a ruling class. The Pathans claim the thirdposition. They are said to be the descendants of those warriors, who sacrificed their livesfor the propagation of Islam. The Labbais occupy the fourth place. They get their lowerstatus because they are the descendants of Arabs, who came to India for trade and not topropagate Islam. They also married native women and settled in India. In the fifth placeare the Khureshi, the descendants of the Khuresh tribe of Arabia, to which the prophetbelongs. Attar-saibulu, the perfume (Attar) traders, come next. Atar, who sell pettydomestic items used at the time of festivals of Muslims and Gair-e-Mehadi are belowthem. They are considered a Shia sect. The Chekketakare who are traders in mortarvehicles, Borewale who are the palm leaf weavers and Garadi, jugglers are placed in thesixth place. At the lowest level come the Dudekula the cotton cleaners, barbers (hazam),and mendicants (Fhakir-budbudki). The Dudekula are placed in the last category becausethey use a thread made out of the intestinal tissue from the dead cattle, while cleaningcotton. Since they work touching dead cattle, they occupy a lower place in the hierarchyand are not eligible for marriage alliance with the above said Muslim groups.” 162. Mr.Krishnan has also referred to the book “People of India” (AnSI) published

in 2003 which describes about the existence of 391 communities in Andhra

Pradesh and out of them 24 are Muslim communities. They are: 1) Arab, 2) Attar

Saibulu, 3) Bohara, 4) Chakketakare, 5) Dhobi Muslim/Muslim

Dhobi/Dhobi Musalman, 6) Dudekula/Anjikutti, 7) Faqir/Fhakir Budbudki, 8)

Garadi/Garadi Muslim, 9) Gosangi Muslim, 10) Hajam/Nai/Navid, 11) Irani,

12) Khatik/Khatik Muslim/Kasab, 13) Labhai/Labbi, 14) Mehtar, 15) Mughal/Moghal,

16) Noor Basha, 17) Pathan, 18) Qureshi/Kureshi/Khureshi, 19)

Shaik/ Sheikh, 20) Shia Imami Ismailis/Khoja, 21) Siddi 22) Syed/

Saiyed/Sayyad/Mushaik, 23) Borewale, and 24) Guddi Eluguvallu.

According to Mr.Krishnan, both 'Khatik/Khatik Muslim/Kasab' and 'Qureshi/Kureshi/

Khureshi' are the same.

163. In para 6.9 of this chapter, Mr.Krishnan has referred to the description in the

People of India study about the existence of Muslim communities in Andhra

Pradesh. He has discussed about the studies by the different authors of the People

of India on 1) Syed/ Saiyed/Sayyad/Mushaik, 2) Shaik/Sheikh, 3) Mughal/ Moghal,

4) Pathan, 5) Irani, 6) Arab, 7) Bohara, 8) Shia Imami Ismalilis/Khoja, 9) Mehtar, 10)

Gosangi Muslim, 11) Faqir/Fakhir Budbudki,

12) Attar Saibulu or Attarollu, 13) Chakketakare,

14) Dhobi Muslim/ Muslim Dhobi/Dhobi Musalman, 15) Garadi/ Garadi Muslim, 16)

Hajam/Nai/Navid, 17) Labbai/Labbi,

18) Siddi, 19) Dudekula/Panjikutti, 20) Noor Basha, 21) Qureshi/ Kureshi/Khureshi,

22) Khatik/Khatik Muslim/Kasab,

23) Borewale and 24) Guddi Eluguvallu and opined that Syed, Moghal, Pathan,

Irani, Arab, Bohara, Khoja, Labbai/Labbi, are socially advanced classes; and

Gosangi Muslim, Fhakir budbudki, Attar Saibulu, Chekketakare, Dhobi Muslim,

Garadi Muslim, Hajam, Siddi, Qureshi, Khatik/Khatik Muslim/Kasab and Guddi

Eluguvallu, as the communities, which deserve to be included in the list of socially

and educationally backward classes. The other two communities Mehtar and

Dudekula have already been included in the list of backward classes of the State.

164. In Chapter VII of his report, Mr.Krishnan has referred to the social basis for

inclusion of Muslim communities/groups in socially and educationally backward

classes list (para 7.2) and the Commission’s approach to SEBC Muslims (para 7.3)

wherein the previous Central Backward Classes Commission reports were

discussed. In para 7.3, he has discussed the reports of the State Governments and

State Commissions wherein a mention has been made about the Sachar

Committee's/NSSO's all-India inter-State comparative picture showing the

percentage of Muslim population in 2001 and socially and educationally backward

class Muslim population figures of 1999-2000 and 2004-2005 (para 7.3.3 at

pg.217). The figures relevant to Andhra Pradesh for the purpose are recorded as

under:

Percentage of Muslim population in 2001 and Sed.BC Muslim population Figures in1999-2000 and 2004-05

State Population

(2001) MillionsMuslimPopulation(2001)%

% of SEd.BC Muslims and General Muslims amongTotal Muslim Population

S.Ed.BC Muslim1999-2000 2004-05

General Muslim i.e. non-SEdBC Muslim1999-2000 2004-05

India

1028.6 13.4 31.7 40.7 68.3 59.3

AP 76.2 9.2 10.7 19.5 89.3 80.5

165. With regard to the methodological difference in North India and South India

for listing the backward classes and the methodology adopted by the National

Commission for Backward Classes, Mr. Krishnan in para 7.3.4.1 (from pgs.240 to

242) has stated that the groups existing in Karnataka and Kerala and who moved to

Islam in north India were mainly artisans and persons belonging to other

occupational castes. They are the same castes which now find place in the socially

and educationally Backward Classes and Scheduled Castes of Hindus. After

conversion, their occupational pattern and other features have remained the same

as before conversion and they have retained the same community name and social

identity and are carrying on the same traditional occupation. He has also stated

that neither the State Commissions nor the State Governments in the States of Uttar

Pradesh, Bihar and Madhya Pradesh nor the Mandal Commission included

Sayyed, Sheikh, Pathan, Moghul, Bohara, Cutchi Memon, Khoja etc. in the list of

socially and educationally backward groups.

166. It has been further observed by Mr.Krishan in para 7.3.4.2 that in southern

States, conversion to Islam seems to have been from Scheduled Castes and

backward classes and it is perhaps for this reason that the practice of including the

entire Muslim community in the State lists has been in vogue. It has also been

stated that the Muslim communities at the lower end of the spectrum which retained

their traditional occupation and ranking low in hierarchy were also included in the

State lists. Mr.Krishnan has also observed that such a low proportion of Muslim

being in the list of backward classes is on account of a lacuna in the perception of

certain specificities of that community and that the existing situation has arisen from

a number of factors, one being the Muslim civil society leadership put all its weight

behind the efforts to get the entire Muslim community recognised as “socially and

educationally backward”.

167. In the end of Chapter VII, Mr. Krishnan has observed that Borewala and

Shaik also are socially and educationally backward communities and deserved to

be included in the list of Backward Classes.

168. In Chapter VIII, Mr. Krishnan has given the table showing Muslim presence

at different levels of education furnished by the Commission in 2005 and observed

that there is considerable shortfall at all levels except primary level to Class V; the

gap is serious from Class X to Graduation, while it is grave and disturbing at

professional and technological levels. He has also furnished the table showing

number of Muslim candidates selected for the years 2004-05 to 2006-07 to various

services in the State, and opined that the identified Muslim groups were

inadequately represented in the services of the State.

169. In Chapter IX, Mr. Krishnan has made a recommendation for inclusion of the

groups identified as SEBC Muslim groups in Chapters VI and VII in the list of

Backward Classes. He has, however, observed that the percentage of reservation

may be limited to 4% in view of the maximum limit of 50% prescribed by the Hon'ble

Supreme Court in Indra Sawhney I. The exercise by Mr.Krishnan is per se not

based on any survey, socio-economic criteria, representative sample collection,

data analysis on the basis of evolved criteria or the like. Mr.Krishnan’s exertion

cannot per se be a legitimate basis for the State to evolve an affirmative action.

170. On a careful consideration of the report of the Commission, it can be seen

that the Commission, without conducting any independent, detailed and scientific

survey of each of the identified communities, had simply adopted the report of

Mr.Krishnan, which in turn was substantially based on the AnSI report. It is clear

that the reports of Mr.Krishnan and of the AnSI were not prepared after an objective

and scientific exercise. Mr.Krishnan has drawn up his report taking into

consideration the various District Gazetteers of Telengana, Andhra and

Rayalaseema regions and the thesis reports of some research scholars, whereas

the report of the AnSI was only a compilation of articles written by different scholars,

who conducted a general study of the communities living in India from the

anthropological perspective.

171. As already noticed, though the revision of backward classes’ list was

pending with the Commission since 1994, the respondent State, in the year 2007,

had requested the Commission to give its recommendations after identifying the

social and educational backwardness among Muslims. At the relevant time, only

2001 Census figures were available with the Commission. Therefore, in order to

have the latest data about various Muslim groups, the Commission ought to have

undertaken a detailed study to collect the material and to make its

recommendations. Instead, the Commission simply followed the 2001 Census

figures without conducting any field investigation. Moreover, the Commission being

a statutory body could have utilised all possible sources to tap information from all

corners of the State. Besides this, the Commission could have requested the State

Government to make an exercise for collection of the population figures with regard

to the different groups of Muslims in the State. When the revision was pending

since 1994, the Commission all of a sudden woke up in 2007 when it was

requested to study the social and educational backwardness among Muslims,

virtually ignoring its statutory duty.

172. Further, the educational backwardness among Muslims, as projected by the

Commission in its report, cannot be accepted because, it did not take into

consideration the relevant data for arriving at the conclusion. As contended by the

learned advocates for the petitioners, the Commission ought to have taken into

account the figures relating to admission of Muslims in minority and non-minority

private educational institutions, while computing the data with regard to educational

backwardness among Muslims. For identifying a class or group as backward –

social, economical and educational – the backwardness with respect to any

particular indicator should be more than 50% and if it is just below the State or

country’s average or equal, such group or class cannot be treated backward. In the

additional affidavit of the petitioner in Writ Petition No.18494 of 2007, it has been

averred that the literacy rate among Muslims, including female literacy, is much

higher when compared to either the State average or the average of Hindus. In

order to substantiate this assertion, the petitioner has relied on the 2001 Census

and has furnished a table, which is as follows:

Table showing literacy rate among different religions based on 2001 Censusof Andhra Pradesh

Literacy rate % among religious groups as per 2001 Census

All religions Hindus Muslims Christians Sikhs

Both Female Both Female Both Female Both Female Both Female

average

AndhraPradesh

61.0 53.2 59.4 49.2 68.0 59.1 75.3 69.8 78.7 72.7

173. As seen from the table, against the State literacy average of 61%, the literacy

rate among Muslims is 68%; and against the State female average of 53.2%, among

Muslim females, literacy rate is 59.1%. These figures furnished by the petitioner

have not been controverted by the respondents by producing any supporting

material and, therefore, they are presumed to be true. The report of the Commission

is based on the 2001 Census. It is strange to note as to how the Commission could

arrive at a different conclusion and make its recommendations, when, in fact, the

figures relating to the literacy rate among Muslims given by the petitioner from the

same 2001 Census are otherwise. In such a case, so as to show that a particular

group of Muslims is less literate, the Commission must establish the same with facts

and figures by conducting survey in a scientific manner, which had not been done

by it.

174. In view of the above discussion, it is evident that the Commission failed to

formulate criteria for identifying the backward classes among Muslims, but had

simply conducted a household survey in places close to its hand. Even assuming

that the Commission had adopted its own methodology for identifying the backward

classes, in our view, it had not applied any scientific criteria to check whether a

sizeable number of occupational groups like Fakir Budbudki, Garadi Muslim,

Gosangi, Guddi Eluguvallu etc., who had practically changed their occupations,

were in existence and required upliftment. The learned Advocate General has tried

to justify the Commission's report by submitting that as Hindu counterparts of

majority of the identified communities were enjoying the status of backward classes

and the reservation, the Commission had adopted 'fast track' and 'rough and ready'

criteria for arriving at the conclusion and making the recommendation. We are not

inclined to accept the said submission because, according to us, only after careful

collection and study of the data so collected, the status of backward class can be

conferred upon a particular class or group, as such a status given to one group or

class adversely affects the rights of several other citizens.

175. Normally, the benefit of reservation is given to members of the group of

citizens, who seek such reservation. As stated hereinabove, almost 112

applications from different groups seeking inclusion in the list of backward classes

were pending before the Commission and without considering the same, the

Commission had decided to include all the remaining groups of Muslims except

those enumerated in Item No.15 of the Schedule appended to the impugned Act. It

is strange to hear from the learned Senior Advocate appearing for the Commission

that possibly it included those groups without there being any application from them

because they were located at such remote places that it was not possible to have

access to them and even they were not aware of their right of being included in the

list of backward classes. We are not in agreement with the said submission for the

reason that if they were located at such remote places, how the Commission could

gather information about persons of those groups so as to include them in Item 15 of

the Schedule, without even referring to their names! In the circumstances, we are

constrained to believe that undue favour was done to the groups other than those

enumerated for exclusion in Item 15, by including them in the list of backward

classes.

176. In the afore-stated circumstances, we are of the considered view that the

report of the Commission cannot constitute a lawful basis for affirmative action by

the State.

177. In view of the submissions made by the learned counsel for the petitioners

that the appointment of Mr.Krishnan as Advisor to the Government of Andhra

Pradesh to collect data and submit a report on the backward classes among

Muslims in Andhra Pradesh is illegal and violative of Article 162 of the Constitution,

we briefly notice the constitutional provisions on the issue.

178. Article 162 of the Constitution lays down that -

“162. Extent of Executive power of State:- Subject to the provisions of this Constitution, the executive power of a State shallextend to the matters with respect to which the Legislature of the State has power to makelaws: Provided that in any matter with respect to which the Legislature of a State and

Parliament have power to make laws, the executive power of the State shall be subject to,and limited by, the executive power expressly conferred by this Constitution or by any lawmade by Parliament upon the Union or authorities thereof.”

179. Article 162 does not contain any definition as to what the executive function

is and what activities would legitimately come within its scope. Ordinarily, the

executive power connotes the residue of governmental functions that remain after

legislative and judicial functions are taken away. Our Constitution has not

recognised the doctrine of separation of powers in its absolute rigidity, but the

functions of different parts or branches of the government have been sufficiently

differentiated and consequently it can very well be said that our Constitution does

not contemplate assumption, by one organ or part of the State, of functions that

essentially belong to another. The executive indeed can exercise the powers of

departmental or subordinate legislation when such powers are delegated to it by the

legislature. It can also, when so empowered, exercise judicial functions in a limited

way.

180. The executive or the State in exercise of its executive power is charged with

the duty and responsibility of carrying on the general administration of the State. So

long as the State Government does not go against the provisions of the Constitution

or any law, the width and amplitude of the executive power cannot be

circumscribed. If there is no enactment covering a particular aspect, the

government can carry on the administration by issuing administrative directions or

instructions, until the legislature makes a law in that behalf. The State Government

can act in relation to any matter with respect to which the State Legislature has

power to make laws even if there is no legislation to support such executive action.

The State Government, however, can never go against the provisions of the

Constitution or of any law. If there is a statutory rule or an Act on the matter, the

executive must abide by that Act or rule and it cannot, in exercise of the executive

power under Article 162 of the Constitution, ignore or act contrary to that rule or Act.

Any such transgression made by the executive or the State is liable to be struck

down as ultra vires. Reference in this connection can be made to the judgments of

the Hon'ble Supreme Court in Ram Jawaya Kapur v. State of Punjab[28],

Mahalakshmi Mills v. State[29], B.N. Nagarajan v. State of Mysore[30], ADM,

Jabalpur v. Shivakant Shukla[31], Bishambar Dayal Chandra Mohan v. State

of U.P.[32] and Pancham Chand v. State of U.P.[33].

181. In the cases on hand, the respondent State had appointed Mr.P.S. Krishnan,

as Advisor to Government of Andhra Pradesh, Backward Classes Welfare on

18.5.2007 vide G.O.Ms.No.21 by entrusting the work of collection of data pertaining

to backward classes. Clause (iv) of para 3 of the said G.O., which is relevant for the

purpose of these cases, is extracted below:

“3 (iv). His duties include, inter alia, collection of data, conducting research; consultationwith the Andhra Pradesh Backward Classes Commission, concerned GovernmentOfficials and non-Government organisations and individuals, preparation and submission ofdraft report to the Government in May 2007 for wider consultation; finalisation of report aftertaking note of various suggestions, keeping the observations of the Andhra Pradesh HighCourt and the Supreme Court on this issue; briefing the government and the Council ofMinisters (if need be); filing of caveats, preparation of counter affidavit on behalf of theGovernment and defending the government in Courts of law, if need be; and such otherwork as may be entrusted by the government from time to time, for the benefit of thesocially and educationally backward classes of the people of Andhra Pradesh in general,and in particular those belonging to these classes in the Muslim population.” 182. On a perusal of the functions assigned to Mr.Krishnan, it is clear that the

State had entrusted him the very same functions as were to be undertaken by the

Commission under the provisions of the 1993 Act. By the above reference,

Mr.Krishnan was asked by the Government to collect data relating to backward

classes among Muslims keeping in view the observations of this Court and the

Supreme Court on the issue. This task had been entrusted to him by Principal

Secretary to Government under an executive order, while the Commission, a

statutory body constituted under the provisions of the 1993 Act is legislatively

authorized to regulate its own functions. So long as the 1993 Act is on the statute

book, the executive must abide by it and cannot, in exercise of its executive power,

overreach, supplant, supplement, ignore or act contrary to the 1993 Act. In our

opinion, by issuance of G.O.Ms.No.21, dated 18.5.2007, the respondent State has

transgressed into the powers of the Commission constituted under the 1993 Act.

When the statutory Commission was in force since 1994 and the Government by its

letter dated 17.4.2007 had requested the Commission to undertake a survey of the

Muslim community in Andhra Pradesh and identify the socially and educationally

backward classes among them, there was no point in appointing Mr.Krishnan for the

same purpose, on 18.5.2007. If necessary, the Commission could have taken the

assistance of any research scholar or report prepared by an expert in the field,

including Mr.Krishnan, if so deemed appropriate by the Commission. In our

considered view, by this appointment, the State had trenched into the functions of

the statutory Commission. The appointment of Mr.Krishnan is thus pro tanto invalid,

insofar as the entrustment of functions includes such functions as are legislatively

within the domain of the Commission qua the provisions of the 1993 Act.

183. With regard to the provision of 4% reservation to the identified Muslim

groups, we fail to understand the basis for such a conclusion. The Mandal

Commission (paragraphs 12.19 to 12.21 at Chapter XII (Identification of OBCs) of its

report), had estimated the population of OBCs throughout the country to arrive at the

percentage of reservations to be recommended and, in paragraph 12.22, given the

percentage distribution of Indian population by caste and religious groups. The

Mandal Commission had recommended the percentage of reservation to OBCs at

27% (though total OBC population arrived at is 52% according to 1931 Census)

keeping in view the percentage of reservation given to SCs and STs and also the

judgments of the Hon’ble Supreme Court that the total percentage of reservations

should be less than 50%. Though the total population figure at the time when

Mandal Commission had undertaken the survey was not available, it had taken into

account the proportionate population growth of various/communities into

consideration.

184. A perusal of the report of the present Commission does not reflect such

scientific and rational exercise. Even otherwise, according to the 2001 Census, the

total Muslim population is 9.2% of the total population in Andhra Pradesh and the

percentage of backward classes among Muslims is 19.5%. Thus, the total

backward class Muslim population comes to around 2% of the total population in

Andhra Pradesh. According to the report of the Commission also, 19.5% of Muslims

are covered under OBCs in Andhra Pradesh and the relevant portion from page 53

of the report of the Commission reads as under:

“Sachaar Committee report shows that the Distribution of population in 2004-05indicates that 25.6% of Hindu population comes under SCs & STs., 50.2% of Hindupopulation comes under OBCs, making a total of 75.8% covered under reservation in A.P. On the other hand, the Sachar-NSSO figures indicates that 19.5% of the Muslim populationare covered under OBCs in Andhra Pradesh. Thus, about 75% of the Hindu population iscovered under OBCs in Andhra Pradesh, whereas 19.5% of the Muslims are coveredunder OBCs in A.P.”

185. The general practice in vogue in almost all the States in the country is to

provide reservation to S.Cs., S.Ts. or SEBCs. after considering the total population

and the population of persons belonging to such classes. So, reservation to be

provided to such classes must be commensurate with the percentage of the total

population. We do not find any justification for providing 4% reservation to SEBC

Muslims under the impugned Act. Similarly, the Commission has also not given

any explanation, much less even a plausible reason, justifying its recommendation

for providing 4% reservation to the so-called identified fifth group viz., Group 'E', in

education and public employment. As has been discussed supra, the Commission,

while dealing with the different communities of Muslims, has only recorded an

observation whether that particular community is socially and educationally

backward, but has not given any figure illustrating its ultimate finding that without

providing 4% reservation to these groups, justice would not be done. The logical

inference is that since only 4% percentage reservation was left available to be

provided by the State to other identified backward class people, after the 46%

reservation already provided to the different groups of S.Cs., S.Ts. and OBCs (A, B,

C & D). This cannot be a legitimate justification for providing 4% reservation to

Group ‘E’.

186. Another important aspect of the matter is that the Commission has not

included the already existing Muslims groups in Groups ‘A’ and ‘B’ into the newly

identified Group ‘E’. The reasons for not including the Muslim groups Dudekula,

Laddaf, Pinjari/Noorbash and Mehtar find place neither in the Commission’s report

nor in the Government Order notifying Group ‘E’.

187. With regard to the question of providing reservations to SEBC Muslims under

a separate group ‘E’, but not including the Muslim groups already included in the

lists ‘A’ and ‘B’, the respondent State has tried to justify its action by stating that the

Muslim groups in the lists ‘A’ and ‘B’ were enjoying the benefit of reservation since

1970 and in order to give an opportunity to the newly included groups of SEBC

Muslims to enjoy the benefit of reservation and improve their standard of living, the

State had shown them separately in the list of backward classes and provided

separate reservation to them. This explanation of the State is not acceptable, since

the date of publishing the list of socially and educationally backward classes viz.,

23.9.1970 vide G.O.Ms.No.1793, several groups of backward classes were

included in the existing four groups in the list, right from 1972 {from the date of

inclusion of “Mehtar (Muslim) on 5.7.1972 to “Patra” on 28.8.2006} to 2006. During

these subsequent inclusions, the newly added groups were not shown separately in

the list of backward classes. Though Schedule Caste converts to Christianity were

shown separately in Group 'C' when they were included in the list of backward

classes in the year 1981, the status of the Schedule Caste converts was shown in

the higher strata when compared to the Scheduled Castes and placed them in the

list of backward classes in a separate Group ‘C’. As a consequence of the

impugned Act, all the identified Muslim groups of backward classes (earlier and

now included) are to be found in Groups ‘A’, ‘B’ and now the bulk of them in Group

‘E’. Those Muslim communities earlier included in Groups ‘A’ and ‘B’ would have

to compete with others for the percentage of affirmative opportunities allotted to

Groups ‘A’ and ‘B’, while those included in Group ‘E’ would enjoy an exclusive

package of affirmative opportunities of 4%. This action of the State constitutes a

discriminatory treatment among the identified Muslim groups and is violative of

Article 14 of the Constitution.

188. It is also pertinent to note that as per the Scholars, who have studied Islamic

law and way of living of Muslims, firmly believe that there is no caste system among

Muslims. It is also a matter of fairly common knowledge that caste system is

prevalent mainly among Hindus. The conclusion by experts and sociologists that

when Hindus got converted to Islam, they had continued their way of living and

occupation, including caste insularities. Thus, only on conversion of Hindus to

Islam, there used to be different classes among Muslims, based on their traditional

occupations etc. Therefore, Muslims groups, which have been identified as

SEBCs, ought to have been included in either Group ‘A’ or under Group ‘B’ or even

in Group ‘D’, where their Hindu counterparts were already admitted to the benefits

of reservation. Even the learned Advocate General had stated that in certain cases

there was perhaps no justification for including certain Muslim groups in the list of

backward classes, except for the reason that their Hindu counterparts were already

included as SEBCs., and for this reason, the Commission, without any survey to

ascertain their way of living, level of education and economic condition, had

recommended certain groups to be included in the list of backward classes. Whether the 2007 Act is religion specific 189. The petitioners have contended that as the object behind enactment of the

2007 Act is to provide reservation to some of the socially and educationally

backward groups among Muslim community only, the same is religion specific and

discriminates even among people of backward classes on the basis of religion and

is violative of Articles 15 (1) and 16 (2) of the Constitution. It has been also alleged

that the 2007 Act is religion specific and in particular Item 15 of the Schedule

appended thereto would encourage conversion of members of other religious

groups to Islam for enjoying the benefit of reservations.

190. Referring to Clause 15 of the Schedule to the 2007 Act, it has been

submitted that the provision for reservation for ‘other Muslim groups’ without a

definition of the said phrase in the Act, has the direct potential to encourage others

to convert to Islam, which is violative of the core of secularism – a part of the basic

structure of the Constitution.

191. It has been further submitted that Article 15 (4) empowers the State to

provide for reservation to the socially and educationally backward citizens, but it

does not enable religion specific reservation and the State action in taking religion

as the basis for identification of backward classes is unconstitutional.

192. It has been submitted that earlier, the Anantaraman Commission had looked

into the backwardness of all communities in the entire society, including Muslims,

and had recommended inclusion of only two occupational groups of the Muslim

community viz., Mehtar and Dudekula into the list of backward classes. However, in

the cases on hand, the State Government had directed the Commission to

investigate the backwardness among the classes/communities/groups of Muslims

alone. If the intention of the State Government was to provide reservation based on

occupational groups, there was no justification to restrict the investigation to the

identification of backwardness of the Muslim community alone.

193. It has been next submitted that neither the Commission nor the State has

explained the urgency in providing reservation to the backward classes among

Muslims alone when the claims of about 112 communities from different religions

viz., Hindus, Muslims and Sikhs were pending before the Commission for their

inclusion into the list of backward classes.

194. The State has enacted the 2007 Act to provide reservation to SEBC Muslims

in educational institutions and public employment for their upliftment and for matters

connected therewith or incidental thereto. Section 1 of the Act specifies the short

title, extent and commencement of the Act, Section 2 deals with the definitions of the

words “Commission”, “educational institutions”, “notification”, “public services” and

“Schedule”. While Section 3 enumerates the declaration of Muslim communities

and groups as backward classes, Section 4 speaks of reservation in favour of

backward classes of Muslim communities and groups and Section 5, the

percentage of reservations. Sections 6 to 8 empower the State Government to

amend the Schedule appended to the 2007 Act, to make a provision for the purpose

of carrying out all or any of the provisions of the 2007 Act and to remove any

difficulty which arises in giving effect to the provisions of the Act respectively and

Section 9 repeals the Ordinance issued in the year 2005. The Schedule appended

to the 2007 Act reads thus:

SCHEDULE 1) Achchukattalavandlu, Singali, Singamvallu, Achchupanivallu,Achchukattuvaru, Achukatlavandlu.2) Attar Saibulu, Attarollu.3) Dhobi Muslim/Muslim Dhobi/Dhobi Musalman, Turka Chakla or TurkaSakala, Turaka Chakali, Tulukka Vannan, Tsakalas, Sakalas or Chakalas,Muslim Rajakas.4) Faqir, Fhakir Budbudki, Ghanti Fhakir, Ghanta Fhakirlu, TurakaBudbudki, Darvesh, Fakeer.5) Garadi Muslim, Garadi Saibulu, Pamulavallu, Kani- kattuvallu,Garadollu, Garadiga.6) Gosangi Muslim, Phakeer Sayebulu.7) Guddi Eluguvallu, Elugu Bantuvallu, Musalman Keelu Gurralavallu.8) Hajam, Nai, Nai Muslim, Navid.9) Labbi, Labbai, Labbon, Labba.10) Pakeerla, Borewalc, Deera Phakirlu, Bonthala.11) Qureshi, Kureshi/Khureshi, Khasab, Marati Khasab, Muslim Katika,Khatik Muslim.12) Shaik/Sheikh.13) Siddi, Yaba, Habshi, Jasi.

14) Turaka Kasha, Kakkukotte Zinka Saibulu, Chakkitakanevale,Terugadu Gontalavaru, Thirugatigantla, Rollaku Kakku Kottevaru, Pattar Phodulu,Chakketakare, Thuraka Kahsa.15) Other Muslim groups excluding: Syed, Saiyed, Sayyad, Mushaik; Mughal, Moghal; Pathans; Irani; Arab; Bohara, Bohra; Shia Imami Ismaili, Khoja; Cutchi-Memon; Jamayat; Navayat;and all the synonyms and sub-groups of the excluded groups; and except thosewho have been already included in the State List of Backward Classes.

195. A perusal of the provisions of the 2007 Act and the Schedule appended

thereto shows that the Act is intended to provide reservation to the socially and

educationally backward classes among Muslims only. The object behind making

such a legislation is as follows:

“Object of the Act An Act to provide reservation to Socially and Educationally Backward Classes ofMuslims in the Educational Institutions and Public Employment for their upliftment and formatters connected therewith or incidental thereto. Whereas, the Andhra Pradesh Commission for Backward Classes found that theentire Muslim Community is socially, educationally and economically backward andtherefore, recommended that provision be made providing 5% reservation to the MuslimCommunity in all Educational Institutions and Public Services in the State excluding thecreamy layer among them; And whereas, basing on the recommendations of the Commission, the AndhraPradesh Reservation of Seats in the Educational Institutions and of appointments or postsin the Public Services under the State to Muslim Community Act, 2005 was enactedproviding for 5% reservation of seats in Educational Institutions and in appointments inPublic Services to the Muslim Community excluding the creamy layer amongst them; And whereas, the Larger Bench of the Andhra Pradesh High Court in Writ PetitionNo.13832 of 2005 and batch dated 7.11.2005 held inter alia, that the Backward ClassesCommission has not identified the social backwardness of Muslims to declare them asbackward and accordingly, declared the above Act as unconstitutional and violative ofArticles 15(4) and 16(4) of the Constitution of India; And whereas, State Government filed SLP in Civil Appeal No.7513 of 2005 in theSupreme Court against the above judgment and it is still pending; And whereas, Government referred the matter to the Andhra Pradesh Commissionfor Backward Classes basing on the decision of the Hon'ble High Court of Andhra Pradeshagain to identify the Muslim Communities and Groups which can be regarded as sociallyand educationally backward for the purpose of providing reservation to them; And whereas, the Andhra Pradesh, Backward Classes Commission in their reportrecommended that certain Muslim Communities and Groups are to be considered associally and educationally Backward Classes of citizens for providing to them reservationsunder Articles 15(4) and 16(4) of the Constitution of India;

And whereas, Government approved the recommendations of the Andhra PradeshCommission for Backward Classes to provide reservation to the eligible socially andeducationally Backward Classes of Muslims; And whereas, the provisions of the said Act, 2005 cannot be made applicable in theState; And whereas, it has been decided to provide reservation in favour of the Socially andEducationally Backward Classes of Muslims as recommended by the Backward ClassesCommission;” 196. From the statement of the objects and reasons, it is apparent that initially the

Commission had found that the entire Muslim community was socially,

educationally and economically backward and, therefore, had recommended 5%

reservation to the Muslim community in all educational institutions and public

services in the State, excluding the creamy layer among them. The State

Government had accepted the same, and in the year 2005, when the Andhra

Pradesh Reservation of Seats in the Educational Institutions and of appointments or

posts in the Public Services under the State to Muslim Community Act, 2005 was

enacted providing such reservation, in Archana Reddy, this Court had declared the

said Act as unconstitutional and violative of Articles 15 (4) and 16 (4) of the

Constitution on the ground that the Commission had not identified the social

backwardness of Muslims so as to declare them “backward”; that during the

pendency of the appeal filed before the Supreme Court challenging the order of the

High Court, the State Government referred the matter to the Commission to identify

the Muslim communities and groups, which could be regarded as socially and

educationally backward for the purpose of providing reservation to them.

Accordingly, in the year 2007, the Commission had recommended that certain

communities and groups of Muslims should be considered as socially and

educationally backward for providing them reservation under Articles 15 (4) and 16

(4). Hence, the 2007 Act has been enacted to provide reservation to SEBC

Muslims in educational institutions and public services. It is, therefore, clear that the

State, as a matter of policy, has decided to provide reservation to certain groups of

Muslim community in educational institutions and in public services on the ground

that they are socially and educationally backward.

197. The grievance of the petitioners is that because of the impugned Act, the

reservation to the backward classes has been increased from 46% to 50% and

during the academic year 2007-08 some of the petitioners, who could find place in

the merit list for admission in professional colleges viz., Engineering, Medical and

Post-Graduate courses, lost an opportunity of securing seats in view of the

impugned enactment. The grievance of some of the petitioners, who have filed the

petitions in public interest, is that the Commission had not taken into consideration

their objections for inclusion of certain other communities including Muslim

community, in the list of backward classes. It has been submitted by them that the

inclusion of the identified groups among Muslim community, which does not satisfy

the criteria, would adversely affect the persons belonging to forward classes, in

general, and the legitimate interest of the already listed backward classes as well.

198. Our Constitution permits application of the equality clause by grant of

additional protection to the disadvantaged classes irrespective of their religion, so

as to bring them on an equal platform with other advantaged classes of people.

Where, however, reservation is provided to a community or group of communities

professing a particular religion or a religious denomination, without a lawful

determination of social and educational backwardness, the classification so made

would be exclusively on the basis of religion, prohibited by Articles 15 (1) and 16

(2). Reference in this connection may be made to the judgments of the Hon’ble

Supreme Court in State of Rajasthan v. Thakur Pratap Singh[34], Triloki Nath

Tiku v. Stateof J & K[35] and R.C. Poudyal v. Union of India[36].

199. In Thakur Pratap Singh, the Hon’ble Supreme Court has held that the

notification of the Government granting exemption under Section 15 (5) of the Police

Act in favour of Harijans and Muslims was discriminatory against the law abiding

members of the other communities as it was only on the basis of “caste” or “religion”

and, therefore, the notification was violative of Article

15 (1) of the Constitution. In Triloki Nath Tiku, the Hon’ble Supreme Court has

held that the Policy of the State of Jammu & Kashmir, whereby 50% of vacancies

were reserved for the Muslims of Kashmir for the entire State, 40% for Hindus of

Jammu and 10% for Kashmiri Hindus, was not justified in view of the provisions of

Article 16 of the Constitution.

200. On a further reading of the provisions of the 2007 Act, it is seen that there is

no definition of the phrase “Muslim” or “other Muslim groups” in the definitions under

Section 3. Without defining the phrase “Muslim” or “other Muslim groups” and

without clarity as to who are those Muslim groups that fall under the said group, Item

No.15 in the Schedule has been enumerated providing reservation to such “other

Muslim groups”. This failure introduces an ambiguity. It is well-settled that

legislation should be clear and without ambiguity and a statute whose provisions

are vague is void.

201. Article 25 of the Constitution provides that every citizen has a right to profess,

practice and propagate any religion. Item No.15 of the Schedule potentially

encourages a citizen to convert to Islam, with a view to claim the benefits of

reservation. If a person, who is not a Muslim and who belongs to a forward caste

embraces Islam, then the question would arise as to in which group he would fall. If

he does not belong to any of the groups specifically narrated in the Schedule

appended to the impugned Act, he would be included in “other Muslim groups” i.e.

he would be in Item No.15; but as he would not be in groups, which have already

been referred to in Item No.15 (i.e. the excluded communities), he would be a

member of “other Muslim groups” and would be eligible for the reservation provided

he is not a member of a creamy layer. In such an event, in our opinion, anybody

can avail the benefit of reservation under the impugned Act and that would be

against the spirit of secularism and in equal measure subversive of the purposes for

which the 2007 Act has been enacted as well. This is a significant aspect, which

has not been considered at all while enacting the impugned Act and this would

have disastrous consequences. Not only unscrupulous persons embracing Islam

would get the benefit of reservation, but that would result in depletion of the

opportunities of enjoying reservation by those Muslim groups, who are otherwise

entitled to the benefit of reservation in pursuance of the impugned enactment.

202. Further, it is also to be noticed that the 2007 Act does not define the word

“Muslim”. In the absence of any definition in the Act, naturally we have to fall back to

the dictionary meaning. According to Oxford Dictionary, “Muslim” means, ‘a follower

of the religion of Islam’. The meaning given in the Webster’s Comprehensive

Dictionary to the word “Muslim” would read that he is ‘a believer in Islam’. Taking

the dictionary meaning, a Muslim is a person who sincerely embraces the religion of

Islam and believes in Islam. The word “Islam” has been defined by the New

International Webster’s Comprehensive Dictionary of the English language, as ‘the

religion of the Muslims, which maintains that there is but one God, Allah, and that

Mohammed is his Prophet; Mohammedanism’. It would also mean ‘the body of

Muslim believers, their culture, and the countries they inhabit.’ It has been defined

by the new Oxford Dictionary of English, as the ‘religion of the Muslims, a

monotheistic faith regarded as revealed through Mohammed as the Prophet of

Allah.’ Thus, a Muslim is a person, who tries to worship God by following the

teachings of Prophet Mohammed. Therefore, any follower of Islam can be regarded

as a Muslim. The Legislature ought to have taken care, while making the

enactment, to define the word “Muslim” and the phrase “other Muslim groups” and

state clearly as to who actually falls within these definitions, for enjoying the

benefits under this Act.

203. Looking to the facts of the case, in our opinion, the 2007 Act is religion

specific and potentially encourages religious conversion, and is thus unsustainable.

204. On the aforesaid analyses, we record the summary of our conclusions as

under:

a) The validity of a legislation is subject to judicial review on

established grounds such as legislative competence qua the distribution of

legislative powers or on the ground of transgression of other limitations on the

exercise of legislative powers under the provisions of the Constitution.

b) There is no special standard or principle of judicial review pertaining

to affirmative action/State action under Articles 14, 15 and 16 of the Constitution.

Identification of socially and educationally backward classes of persons is

essentially an exercise in classification and must answer the twin tests of

reasonable differentia and rational nexus. The degree of scrutiny must be

appropriately calibrated to ensure that the impeached State action involving the

classification satisfies the twin tests.

c) Where the petitioner presents a prima facie case of hostile or

invidious discrimination in a factual matrix where the monopoly of

information/material is with the State, the burden of justifying the apparent

discriminatory State action as falling within the constitutionally permitted area of

classification {in this case, for affirmative action under Articles 14, 15 (4) and 16 (4)}

shifts to the State.

d) Though the strict scrutiny standard evolved by the Courts in U.S.A.

may not be applicable in the Indian context, a careful, in-depth or rigorous scrutiny

of affirmative State action is inevitable where validity of an affirmative action of the

Sate is to be examined. The level and rigor of scrutiny actually applied in B.

Archana Reddy v. State of A.P. {(2005) 6 ALD 582} cannot be said to be

inconsistent with the law laid down by the Hon’ble Supreme Court in Saurabh

Chaudri v. Union of India {(2003) 11 SCC 146} and Ashoka Kumar Thakur v.

Union of India {(2008) 6 SCC 1}.

e) The recommendations set out in the report (dated 02.7.2007) of the

A.P. Commission for Backward Classes are unsustainable due to:

i) Failure of the Commission to evolve and spell out proper and relevant

criteria for identification of social and educational backwardness or social

backwardness and inadequate representation in public employment, among

classes of persons belonging to the Muslim community.

ii) Failure of the Commission to obtain the population figures of the

several classes, groups of persons belonging to the Muslim community for

inclusion in Group ‘E’.

iii) Failure of the Commission to adopt a scientific method for determining

the appropriate location for conducting a survey of the population of each of

the classes/groups recommended for inclusion; with a view to ensuring that

the locations surveyed are representative of the inhabitants of the relevant

classes/groups.

iv) Failure of the Commission to consider, determine and apply a

scientific and statistically rational method of sampling like determination of

sample size, location for sampling etc.

v) Failure of the Commission to apply uniform criteria or even standards

of analysis across the several classes/groups recommended for inclusion,

while recording conclusions as to social or educational backwardness or

under representation in public employment.

f) The Commission had substantially relied on the data collected and

observations made by the AnSI study (People of India Series) for the purpose of

making its recommendation though the data collected by the AnSI study had no

relevance or nexus with the affirmation action/reservation under Articles 15 (4) and

16 (4) of the Constitution, which the State was to take on the basis of

recommendations made by the Commission. The data so collected by the AnSI

was only to make anthropological profile of the Indian population. Similarly, the

report made by Mr.P.S.Krishnan was substantially based on the research work

done by others and that too for the purpose other than the one for which the

Commission had to use the said material. Reliance of the Commission on such

material, which was not scientifically collected and which was bereft of any survey

made for the purpose, had led to incorrect conclusions.

205. Since the impugned legislation fails to define the expression “Muslim” and

“other Muslim groups” and since the identification of social and educational

backwardness and under representation in public employment of the several

classes/groups among Muslims as socially and educationally backward

classes/groups for inclusion in Group ‘E’ is held by us to be irrational and

unsustainable, the inclusion of such classes/groups of Muslims is resultantly and

exclusively religion specific, in particular the “other Muslim groups” referred to in

Item No.15 of the Schedule of the 2007 Act. The 2007 Act is thus violative of

Articles 14, 15 (1) and 16 (2) of the Constitution.

206. The Andhra Pradesh Reservation in favour of Socially and Educationally

Backward Classes of Muslims Act, 2007 is unsustainable and is so declared. This

conclusion follows since the exclusive basis for this legislation is the report dated

02.7.2007 of the A.P. Commission for Backward Classes, which we have

hereinbefore declared to be unsustainable.

207. Consequently, G.O.Ms.No.23, Backward Classes Welfare (C2) Department,

dated 07.7.2007 and G.O.Ms.No.231, Health, Medical and Family Welfare (E1)

Department, dated 11.07.2007 respectively cannot be sustained and are

accordingly quashed.

208. Insofar as G.O.Ms.No.3, Backward Classes Welfare Department, dated

4.4.2006 is concerned, the challenge to this Government Order is on the basis of the

alleged irrationality in identifying the creamy layer. In view of the substantive

conclusions in this judgment as to the validity of the Andhra Pradesh Reservation in

favour of Socially and Educationally Backward Classes of Muslims Act, 2007, it is

not necessary to pronounce on the validity of G.O.Ms.No.3, dated 4.4.2006.

209. In the light of the analyses and conclusions above, the writ petitions are

allowed.

210. All interlocutory orders pending these writ petitions stand dissolved.

_______________________Anil R. Dave, CJ

(Vide separate judgment)___________________________ ________________________Smt. T. Meena Kumari, J A. Gopal Reddy, J. __________________ _______________________V. Eshwaraiah, J. Goda Raghuram, J.

February , 2010

svs/ARS

Note:L.R. copy be marked. (By Order) svs

COMMON JUDGMENT (per Smt. Justice T. Meena Kumari,)

I have perused the judgment of the Hon’ble Chief Justice. After perusing the same, Ithought of rendering my judgment independently.

1. When these Writ Petitions were initially listed before the Bench consisting of 5Judges, it was argued before the said Bench that the specific directions/criteria aspointed out in the larger bench decision in B. Archana Reddy and others vs.State of A.P. & Others1 and also the guidelines issued by the Apex Court in IndraSawhney v. Union of India2 have not been followed by the B.C. Commission and itdid not put forth any criteria for identifying socially backward classes as such, theBench hearing the matters felt the necessity to refer the matter to a Larger Bench byits order dated 24-01-2008. The reference is as follows:

“These writ petitions have been filed praying to declare theOrdinance issued by the Government of Andhra Pradesh and the

consequential G.O. Ms. No. 23, dated 7.7.2007 issued by the BackwardClasses Welfare (C-2) Department, providing 4% reservation of seats foradmission into the Educational Institutions and appointments for the posts inPublic Services, which has subsequently become an Act, namely, “AndhraPradesh Reservation in favour of Socially and Educationally BackwardClasses of Muslims Act, 2007” (Act No. 26 of 2007) as illegal,unconstitutional and offending Articles 14,15 and 16 of the Constitution ofIndia.

On an S.L.P. filed by one T. Muralidar Rao and others, namely, Special

Leave to Appeal(Civil) No(s). 17195-17196/2007, the Supreme Court on 12th

October, 2007 directed this Court to dispose of the writ petitions finally before

31st October, 2007. Pursuant to the same, the above batch of writ petitionswere listed before this bench and the same was coming up for hearing from27.11.2007.

2. During the course of arguments, learned counsel for the petitioners whilepointing out to certain observations made by a coordinate Bench of fivejudges of this Court with regard to identification of Muslim community asbackward class in B. ARCHANA REDDY AND OTHERS vs. STATE OF

A.P. & OTHERS (1st cited), sought to contend that the B.C. Commission didnot evolve any criteria for identifying social backwardness. It was also theircontention that the specific direction/criteria as pointed out in later largerbench has not been adhered to. He relied on paragraphs 114,279,293,378and 379 of the said judgment which read thus:

“114. The Commission has neither found nor recorded thatself-employment in petty business, occupations like rickshawpulling, push-cart trade, agricultural labour, marginal landownership, mal-nutrition, inaccessibility to medical facility,lower life expectancy, engagement as unskilled labour,masons or drivers, pursuit of professions or occupations suchas cycle repairing or vulcanizing, engagement of women andchildren in beedi-rolling, are circumstances either peculiar tothe Muslim community or that professing the faith of Islam(definition of ‘Muslims’ in Sec.2(c) of the Ordinance) and these(occupational, professional, extreme poverty and want)circumstances have a causal relationship. In the absence of acausal nexus between the Islam faith aggregate and thepursuit of certain professions, trades or humble economiccircumstances; the occupation and/or the means test,provides neither a legal nor a rational and logical basis for the

conclusion that all Muslims are socially backward becausesome or many of them are in dire economic straits.

279. Transparency in governance is exhortation of theday. In this context, a little elaboration is necessary. Doctrineof rule of law in legal and political philosophy means manythings for many people. The universal theme, however, is thatthe constitutional governance by rule of law is preferable togovernance by a few persons. Democracy presupposespeoples’ rule by law or rule of law through people. The broadprinciple of rule of law contemplates that (i) all laws should beprospective, open and clear, (ii) laws should be stable, (iii)making of particular laws should be guided by stable andgeneral rules, (iv) the principles of natural justice must beobserved, and (v) there should be a system of implementationof laws guaranteeing the independence of judiciary dulyconferring on it the power to review public law functions.Another important principle of rule of law is that the rulersmust know the rules to the ruled. All persons must know whatare the laws, rules and regulations by which they will begoverned. This is more important in a democratic polity wherean independent judiciary, lords over the exercise oflegislative, judicial and administrative powers by other organsof the State, by reason of doctrine of judicial review.Transparency in public administration and constitutionalgovernance is therefore a part of rule of law and indeed it isinseparable adjutant of ‘rule of law’. This Court may makereference to Jaisinghani a n d Merkur Island ShippingCorporation v. Laughton (1983) 2 AC 570 (CA) and thedecision of the Supreme Court in BALCO Employes’ Union(Regd.) v. Union of India(2002)2 SCC 333.

293. In an enquiry of the nature undertaken by B.C.Commission, mere issue of notification inviting objections andconducting public hearings at different places would onlysatisfy the principles of fairness to some extent. In theabsence of notifying the objectors of criteria prior to suchhearings and furnish the material to such objectors prior toconducting public hearings, the enquiry conducted by the B.C.Commission cannot be called fair. The very purpose ofissuing notification inviting objections and conducting publichearings, would be defeated if the criteria is not decided priorto undertaking, the collection of data and putting the objectorson notice. We accordingly hold against the State.

378. Fourthly, while determining social backwardnessof a class of citizens, an expert body like B.C. Commissionhas to necessarily evolve absolutely relevant criteria for thepurpose of caste test, occupation test and means test.Wherever social backwardness is due to a class of peoplebeing born in a homogenous endogamous group called castewith common traits and rigid customs and social rules, thecaste test itself lead to an inference that the class/caste issocially backward. If the occupation of majority of a class ofcitizens is considered inferior and unremunerative, and suchclass of people is considered lowly placed in the society, itwould ordinarily satisfy the test of social backwardness. Themeans test presupposes that by reason of birth in a class ofpeople, historically and traditionally the entire class suffersfrom perennial poverty, in which case, the means test wouldenable the determination of social backwardness. The B.C.Commission did not evolve any criteria for identifying socialbackwardness and did not apply the three tests in a scientificand objective manner.

379. Fifthly, the B.C Commission at the stage of collectingpreliminary data, evolving criteria and conducting publichearings for the purpose of hearing objections from the public,did not take such steps which can be called transparent andfair. Though, the nature of enquiry by B.C. Commissioncannot be strictly treated as quasi-judicial, but still whileundertaking an exercise for identification of backward class ofcitizens, the Commission is legally bound to be fair andtransparent and afford all such opportunity to objectors andproponents for effective representation before theCommission. The prior non-publication of criteria and the datacollected by the B.C. Commission renders the report of theB.C. Commission illegal being contrary to provisions of B.C.Commission Act and principles of fairness.”

In view of the aforesaid judgment emanated from a coordinate bench of fivejudges of this Court and in the absence of any provision in the statute forpublication of the criteria whether this Court can supplant the provisions ofthe Act and the Rules by making publication mandatory as per theobservations as contained in paras stated supra and other observationsmade by the coordinate bench, are contrary to the observations made by theSupreme Court in Indra Sawhney v. Union of India, where it was left open forthe concerned authorities to lay down the criteria, apart from contrary toprinciples laid down in regard to strict scrutiny approach, as laid in Saurabh

Chandra v. Union of India and also the principles laid down in otherdecisions of the Apex Court.

After hearing the counsel on either side appearing on behalf of therespondents, we are of the view that the matters are required to be heard andreconsidered by a 7-Judge Bench.

Accordingly, we direct the registry to place these matters before the Hon’blethe Chief Justice for obtaining necessary orders.”

2. Accordingly the writ petitions were posted before a larger Bench consisting ofSeven Judges and they were heard for considerable length of time.

3. The batch of Writ Petitions have been filed questioning the validity of theimpugned Act No. 26 of 2007, dated 13-08-2007, replacing the Ordinance 5 of2007, dated 06-07-2007, wherein the Government of Andhra Pradesh enacted anAct with an object to provide reservation to socially and educationally backwardclasses of Muslims in the Educational Institutions and Public Employment for theirupliftment and for matters connected therewith or incidental thereto. The Act 26 of2007 is called as “Andhra Pradesh Reservation in favour of Socially andEducationally Backward Classes of Muslims Act, 2007” (Act No.26 of 2007). At thefirst instance, the petitioners have chosen to file the Writ Petitions questioning theOrdinance and in view of the enactment of the Act replacing the Ordinance, theyhave subsequently sought to amend the prayers in the Writ Petitions, and same wasallowed by this Court. In the Schedule, the Government has declared 15 classes ofMuslims residing in the state (Other than Dudekula, Laddaf, Pinjari/Noorbash andMehtar) as identified by the A.P. Commission for Backward Classes as socially andeducationally backward and included them in the lists of backward classes underseparate category ‘E’.

4. The vires of the said Act is challenged in these writ petition.

5. It is contended on behalf of the petitioners that the above enactment is the resultof the Report and Recommendations of the Respondent No.3 – Andhra PradeshBackward Classes Commission (hereinafter called, ‘B.C. Commission’) dated 02-07-2007. It is further contended that B.C. Commission Report is based on theReport submitted by one, Mr.P.S. Krishnan, who was appointed as an Advisor to theState Government by virtue of G.O.Ms.No.21, dated 18-05-2007. It is alsocontended that his duties included collection of data, conducting research andconsultation with B.C. Commission, concerned Governmental officials andpreparation and submission of the draft report to the Government in May, 2007 forwider consultation, finalization of report after taking note of various suggestions,such as keeping the directions of the A.P. High Court and the Supreme Court onthese issues, briefing the Government and the Council of Ministers if need be, filingof caveats, preparation of counter-affidavit on behalf of the Government anddefending the Government in Courts of Law if need be and such other work as maybe entrusted by the Government from time to time, for the benefit of the socially andeducationally backward classes of citizens of Andhra Pradesh and in particularthose belonging to these classes in the Muslim Population. It is contended that inthe said G.O. it is stated that the Government of Andhra Pradesh is concerned with

the conditions of the socially and educationally backward classes in the MuslimPopulation to take all possible special measures for the advancement of thosebelonging to such classes in terms of Article 15(4), 15(5), 16(4) and other provisions of the Constitution. Relying upon theJudgment of this Court in W.P.No.13832 and others read with judgment of theHon’ble Supreme Court in Indra Sawhney’s case and also taking intoconsideration subsequent developments, it is contended that the said Officer, whowas appointed by virtue of G.O.Ms.No.21, dated 18-05-2007, has submitted hisreport on 11-06-2007 identifying specific classes of Muslims recommending toinclude in the list of socially and educationally backward classes as a separategroup ‘E’ excluding the other Muslim groups, who are also socially andeducationally backward. It is also contended by the learned counsel that B.C.Commission has also recommended for inclusion of the said classes in theseparate group ‘E’ basing on the Report of Sri P.S.Krishnan. It is contended by thecounsel that the enquiry conducted and the data collected by the Commission is notin conformity with the guidelines issued by the Hon’ble Supreme Court in IndraSawhney’s case and also the decision of the Larger Bench of this Court inArchana Reddy’s case.. It is further contended that the inclusion of the Muslimgroups in the B.C. list was done by the respondents mechanically without adequateand relevant data. It is also contended that the B.C. Commission has acted in ahaste manner, in conducting the survey and also in collecting the data forrecommending the 15 groups as specific classes of the Muslims to be included inGroup ‘E’ of the B.Cs. in addition to ‘A, ‘B’, ‘C’, ‘D’ for reservation into educationalinstitutions and appointment to posts in the public service under Article 15 (4) and16(4) of the Constitution of India. It is also contended by all the learned counsel thatin the State of Andhra Pradesh there exists a B.C. list wherein certain group ofMuslims have already been identified right from 1968 onwards. It is also contendedthat Anantha Raman Commission identified and prepared a B.C. list of 92 castegroups, out of which they have excluded Dudekula, Laddaf, Pinjari or Noorbash.The Commission has rejected the claim of other groups of Muslims and afterwardsseveral developments have taken place and the Government tried to include certaingroups of Muslims by way of providing reservations under Articles 15(4) and 16(4)and by virtue of G.O.Ms.No.33 dated 12-07-2004 and also tried to include theMuslim community as backward class in the B.C. list in Group ‘E’ by providing 5%of reservation in Articles 15(4) and 16(4) of the Constitution of India by virtue ofG.O.Ms.No.33, dated 12-07-2004 and the same was subject matter before the HighCourt in T.Muralidhar Rao v. State of A.P3 and the said G.O. was quashed by thisCourt on the ground that the entire community cannot be declared as backwardclass and the reservation is also excessive. It is also contended that including allthe socially educated group of classes would amount to division of existing B.C. listand the elimination of creamy layer is in contravention of the directions issued bythe Supreme Court in Indra Sawhney’s case. It is emphatically argued before thisCourt that the Government has issued G.O.Ms.No.3, dated 04-04-2006, wherein itwas ordered that adoption of criteria to determine the creamy layer among the B.C.sas fixed by the Government of India except the annual income limit, which is fixedby Government of India at Rs.2.50 lakhs per annum whereas the rate has beenfixed at Rs.4,00,000/- per annum, which is contrary to the judgment of the SupremeCourt in the Nair Service Society v. State of Kerala4.

6. It is contended on behalf of petitioners that the respondent No.1 i.e., the PrincipalSecretary to Government in the Writ Petition has sent the report of Sri P.S. Krishnanto respondent No.3 i.e., B C Commission and the respondent No.3 conducted the

hearings and its Report is based on material supplied by Anthropological Survey ofIndia and following the report of Sri P.S. Krishnan. It is contended that theCommission has never evolved any criteria nor collected any sufficient data normade any comparative assessment with other communities and the way in whichthe B.C. Commission has conducted itself in a hurried manner goes to show that thesurvey was conducted within a short period. The hearings were held on 14.5.2007,16.5.2007, 22.5.2007, 28.5.2007 and 1.6.2007 at Hyderabad and the hearings werealso held on 23-06-2007 at Kadapa, on 24-06-2007 at Kurnool on 24-06-2007 atMahaboobnagar, on 25-06-2007 at Guntur, on 25-06-2007 at Prakasam and on 26-06-2007 at Hyderabad. It is contended that the way in which the B.C. Commissionhas conducted the hearings and fixed the schedule would itself go to show that theentire exercise was done in a hurried manner and in violation of the norms and theyhave not conducted the survey of the entire population of Muslims in the State. It isalso contended that the B.C. Commission has taken the report of P.S.Krishnan asbasis and just endorsed the views expressed by P.S.Krishnan to identify the 15groups of Muslims as socially and educationally backward class of Muslims to beincluded in the Group ‘E’ in the existing B.C. list. It is contended that in the absenceof any data available and also without arriving at the figures of the entire populationof Muslims, it would be highly difficult for any Commission to arrive at the saidconclusion to classify certain groups or classes of persons as socially andeducationally backward classes to be included for the purpose of Articles 15 (4),15(5) and 16(4). It is also contended that there is no rationale in arriving at thefigures and for coming to such conclusion as the Commission has conducted thesurvey on sample basis and has not followed the guidelines issued in ArchanaReddy’s case and Indra Sawhney’s case.

7. It is also contended that the Government has no power to make a reference underSection 9(1) read with Rule 3(1) for calling the Report for identification of sociallyand educationally backward classes from the Muslim community or any class orcommunity. Therefore, the reference, dated 16-04-2007, by the Government iswithout jurisdiction. It is also contended that under Section 9(1), of the Act theGovernment has no power to make a reference. It is also contended that thereference is made by the Government said to be in exercise of the powers conferredunder section 11(1) of the Act, 1993 (Act No.20 of 1993). When reference underSection 11 (1) is pending, the impugned reference is void and consequently, Reportmade by the B.C. Commission is also illegal. According to the learned counsel forthe petitioners, the reference is wrong as the recommendations are not withreference to the law laid down in Indra Sawhney’s case and Archana Reddy’scase and recommendations in the reference are insufficient. The B.C. Commissionhas not conducted any enquiry and the methodology adopted by the Commission infinding of the groups of the persons to classify them as socially and educationallybackward classes of citizens is itself wrong and that the B.C. Commission hasadopted the P.S.Krishnan’s recommendations in verbatim to verbatim and hencethe recommendations are wrong and not sustainable under law. It is also contendedthat some of the communities belonging to Muslim groups were shown as B.Cs. Onthe basis of the classification, equals hitherto are now treated unequals and itviolates Articles 15(1) and 15(4). It is also contended that the population detailswere not arrived at and the Commission relied only on 1961 and 1991 census andthere is no transparency in the methodology adopted by the B.C. Commission andthe data was not published as per the guidelines laid down in Archana Reddy’scase.

8. Shri C.V. Mohan Reddy, learned Advocate General has submitted that theimpugned enactment is a social welfare legislation traceable to Articles 15(4) &16(4) the Constitution and in examining such a legislation, what is the duty of theCourt, as a judicial arm of the State and what are the principles that are involved ata higher level will have to be taken into consideration and how the Act has to bejudicially reviewed are the broader questions.

9. Referring to Article 14 of the Constitution it was contended that it would onlyremain on paper, if one has go to the historical facts and made provisions to meetsuch historical facts. While reading the contents of Article 15, the learned AdvocateGeneral has submitted that Article 15 (4) has been inserted by first amendment foradvancement of socially and educationally backward classes and Article 15 (5) hasbeen inserted under the 93rd amendment which came into force from 20.1.2006.According to him, subject of reservation has been the subject matter of controversywhich ultimately was settled in Indra Sawhney-I, the Mandal case. While taking thecourt to Article 29 (2) of the Constitution, it was contended that no citizen shall bedenied admission into any educational institution maintained by the State orreceiving aid out of State funds, on grounds only of religion, race, caste, languageor any of them. The State has to promote the educational and economic interests ofthe Scheduled Castes and Scheduled Tribes and in this Article, weaker sectionsinclude backward classes of citizens, who are socially and educationally backward.

10. While referring to Kesavananda Bharati v. State of Kerala5, learned AdvocateGeneral has submitted that with this judgment, whatever controversy as to thepreamble to be relied on, what is the importance that would be attached to thepreamble becomes clear that it is the heart and soul of the Constitution. It is thefoundation on which the constitutional edifice is based. It filters and crystallizes allthe ideals and ideas, that the constitutional vision to give justice, social and politicalto all the citizens. And the next important question in adjudicating the constitutionalvalidity of the Act of this nature is the inter-play between Parts-III and IV of theConstitution and the shift in thinking by the Apex Court from treating Part-IV assubservient to Chapter-III and placed reliance on para 10 of the judgment of theSupreme Court in State of Madras v., Champakam Dorairajan6. Reliance is alsoplaced on para No.10 of yet another judgment of the Supreme Court in Mohd. HanifQuareshi v State of Bihar(7).

11. Learned Advocate General while explaining the importance of the preamble tothe Constitution, has submitted that the preamble forms part of the Constitution andwhen a particular legislation violates the basic structure of the Constitution, thesame can be struck down. When the Court is considering the legislation aimed toachieve the goals set out in the preamble, it has to give weightage to the underlyingprinciples and it cannot review the legislation like an ordinary legislation. When alegislation effecting Parts III and IV of the Constitution is challenged, the approachof the Court will be slightly different. There are certain laws which are specificallymade to achieve a specific goal contained in Part IV. He further contended thatwhen constitutional issues are under consideration, the Court should avoid narrowinterpretation and in this regard placed reliance on para 13 of the judgmentPradeep Jain v. Union of India (8),para No. 5 of the judgment in Atam Prakash v.State of Haryana(9) and para No. 158 of the judgment in State of Kerala v. N.M.Thomas(10). He further submitted that in the judgment reported in Unnikrishnan J.P. v. State of A.P.(11) the Supreme Court reviewed the entire case law.

12. It is argued that the Court will endeavor to support the constitutionality of thelegislation keeping in view the larger constitutional objectives and the impugnedAct will have to be looked from that angle and not from various flaws that thepetitioners pointed out and the Court will have same obligations to uphold thelegislation as that of the State, subject, of course, to abridgement of fundamentalrights. It is further submitted that unless the Court comes to the conclusion that theenactment is based on a perverse report, the Court will not interfere and will assessthe idea behind such an enactment.

13. Few of the important measures for achieving equality are enumerated in Articles15(4), 16(4) and 15(5) also. The State has an option to provide reservation to suchcategories of persons who are found to be socially and educationally backward. Ifone looks at it from this point of view, it is the constitutional mandate of the Stateand the State is obligated to take necessary steps to achieve this constitutionalgoal. Keeping in these aspects into mind, the State has enacted the impugned Act.

14. The learned Advocate General has also traced the history of reservations bysubmitting that there were two lists in the State of Andhra Pradesh, one inTelangana and the other in erstwhile Andhra area, which was part of Madras andthese two lists were sought to be clubbed and a common backward classes list wasprepared. When writ petition was filed, this Court in State of A.P., P. Sagar12, struckdown the same and thereafter a G.O. came to be issued by the Government whichwas again challenged before this Court on the ground that the government did notconduct any enquiry and caste should never become the basis of reservation. Thenthe Government constituted Anantaraman Commission, which submitted a report. Itwas also attacked on identical grounds as sought to be urged now like personallaw, lack of data, caste being the basis etc. and this Court struck down the same.The Supreme Court in State of A.P, v. U S V Balaram13 reversed the judgment ofthis Court. In 1921, the State of Mysore included Muslims in the list of backwardclasses and this was struck down in M R Balaji v. Stateof Mysore14. Then HavanurCommission was constituted and it identified the entire Muslim community asbackward. It was challenged before the Karnataka High Court and it upheld thevalidity of the G.O. Thereafter, in K.C. Vasanth Kumar’s case, the matter wasconsidered by the Supreme Court and Justice Chinnappa Reddy’s Commissionwas appointed. The same thing happened in Tamil Nadu. Every time, reservation ismade by affirmative action, writ petitions are filed before the Courts and ultimatelythe courts have struck down the same. He submits that the Court shall bear in mindthe genuine nature of legislation and constitutional mandate while interpreting suchlegislations. If the Court perceives that the identified classes exist, then the Courtwill uphold such law for the purpose of doing social justice. He has furthersubmitted that there is some material available before the State to providereservation in favour of those classes, and sufficiency of the material, scientificnature of the enquiry sought to be projected by the petitioners are not therequirements. If there is no material, the Court can strike down the legislation.

15. He has further submitted that in Hindu society, every individual is born as aHindu and born into a caste. A Kshatriya can become a carpenter, but a carpentercan never become a Kshatriya. What is required in the context of Article 15(4) issocial backwardness coupled with educational backwardness. He contends thatirrespective of the caste to which they belong, if all the persons who are practicingcarpentry are to be treated as one class, then they could be provided reservation if

they are found to be socially and educationally backward. These two are sine quanon for the purpose of giving benefit under Article 15(4).

16. In D.S. Nakkara Vs. Union of India(15) while interpreting Article 14, it wasstated that the burden lies on the State to prove that the classification is valid and itis submitted by the learned A.G that thereafter, there are no judgments of theBenches of higher strength saying that the burden lies on the State to prove itslegislative actions on Article 14.

17. Reverting back to the judicial scrutiny, learned Advocate General further statedthat the earlier Division Bench in Archana Reddy’s case, have not followed theobservations of Justice Jeevan Reddy as well as Justice Pandian as well as JusticeSawant in Indra Sawhney-I apart from the fact that in Indian context the constituentassembly recognized existence of classes of people who form the majority of thepopulation, who have suffered discrimination, disabilities for centuries and theconstitutional scheme itself has under Articles 15 and 16 read with Part-IV of whichcreated a charge over the State and making it obligatory to take action forameliorating the conditions of such classes of persons. Thereafter, adverting to thecontents of paragraphs 143 to 145 of the judgment, he submitted that in matters ofthis nature, it should have been a deferential scrutiny because of the charge createdover the State.

18. While referring to Saurabh Chaudri v. Union of India16’, learned AdvocateGeneral has submitted that the Court observed that strict scrutiny test or theintermediate scrutiny test applicable in the United States of America cannot beapplied in the cases of reservation. Learned Advocate General has, however,submitted that where the legislation ex facie is found to be unreasonable, such atest may be applied. Learned A.G. has submitted that there is sufficient data beforethe Government, basing on which the impugned enactment is passed. Learned A.g.contended that there should not be a strict scrutiny or in-depth scrutiny or carefulscrutiny and relied upon the decision in Indra Sawhney-I, wherein His LordshipJeevan Reddy J held that no special level of scrutiny for examining the action underArticles 15(4) and 16(4) is necessary.

19. The learned Advocate General has submitted that the petitioners have notdischarged their prima facie obligation. There is no allegation in any of theiraffidavits that any of the communities included in the list of Backward Classes or thegroups identified by the BC Commission as socially and educationally backward,are not backward. In view of the dicta laid down in Rajendran, which was approvedby majority in Indra Sawhney that burden is on the petitioners and that strictscrutiny principle is not applicable in this case, and is never applied in the Indiancontext.

20. The learned Advocate General has submitted that a perusal of Anantaraman’sreport would find the perception of Mr.Anantaraman. In this context, it is stated that it

was with reference to the entire population in the State of Andhra Pradesh. Hefurther submits that after dealing with respective castes or communities oroccupational groups among Hindus, the entire Muslim community was dealt as acore and referred to Item No.71 in of the report and has laid emphasis on the words“traditional caste system never existed among the Muslims” and submitted thatwhile enumerating and recognizing that occupational groups do exist, no effort hasbeen made to find it as to what their social status is. It is recognized byAnantaraman that there do exist occupational groups in the Muslims and by virtue oftheir occupation, that some of the Muslims are considered to be inferior. Thesefactors were recognized, but no effort is made. When it comes to Mehtar, even thatgroup was also not identified. As a result, a community which was equivalent todalits (in Hindu sense of the term were scavengers), were denied this benefit.Dudekula has already been there in the list of Madras Presidency from 1935onwards. In view of the fact that this is the perception and no serious efforts aremade, except going by what was already included by Madras Presidency, nobenefit was extended to anybody at all, except Dudekula, to which the StateGovernment has intended to provide reservation to Muslim groups.

21. It has been contended by the learned Advocate General that the principle ofstrict scrutiny would not apply in the cases of reservation, which is mostly based bythe United States Supreme Court and hence the strict scrutiny test cannot be mademandatory in the cases of reservation.

22. While concluding, the learned Advocate General has submitted that thepetitioners are not, in fact, against the reservations and sufficient material is beforethe Government for providing reservations in favour of certain classes of Muslims,the impugned Act is valid and the writ petitions are liable to be dismissed.

23. The other counsels appearing for implead parties have advanced argumentssupporting the arguments of the learned Advocate General.

24. Heard the other learned Counsel appearing for the parties and perused theentire material made available on record.

25. The present Act No. 26 of 2007 is enacted by the Government of AndhraPradesh to provide reservation to socially and educationally backward class ofMuslims in the Educational Institutions and Public Employment for their upliftmentand for matters connected therewith or incidental thereto. The said Act is publishedin gazette dated 13-08-2007.

26. The history of reservation so far as Andhra Pradesh is concerned can be tracedout to issuance of G.O.Ms.No.1886 dated 21-06-1963, wherein certain personswere listed as belonging to backward classes for the purpose of selectingcandidates to the seats reserved for backward communities in the Medical Collegesin Andhra Pradesh and provided 25% of the seats to be reserved for Backward

Classes in accordance with the list contained therein. The said list was challengedas violative of Articles 15 and 29(2) of the Constitution of India before the HighCourt and the said G.O. was struck down by the High Court holding that there wasno material made available to the Court from the State with regard to economicconditions of various castes, their occupation, habitation, social status and theireducational backwardness and that the enumeration of persons as Backward hasbeen made almost exclusively on the basis of the caste – vide Sukh Dev v. TheGovernment of Andhra Pradesh (1) - ((1966) 1 Andh WR 294).

27. In P.Sagar’s case (12 supra) the G.O. Ms.No.1880, dated 29-07-1966, whichwas issued enumerating 112 communities as backward classes, was challenged inthe High Court and the same was struck down by this Court and the matter went upto the Supreme Court and the Supreme Court has also upheld the decision of theHigh Court. The State Government has appointed Anantha Raman Commission byvirtue of G.O.Ms.No.870, dated 12-04-1968, to prepare the list of backward classesand in turn the Commission prepared a list wherein the Commission hasenumerated 93 communities to be included as backward classes. By issuingG.O.Ms.No.1793, Education Department, dated 23-09-1970, the Anantha RamanCommission’s Report was accepted by the Government declaring the castes andcommunities specified by the Commission to be socially and educationallybackward for the purpose of Article 15(4) of the Constitution of India and theGovernment provided 25% of the reservation for Backward classes. The said G.O.was also challenged in USV Balram’s case. In the said decision holding that thesaid G.O. is violative of Article 15(4), the High Court has struck down the said G.O.but the Supreme Court has reversed the judgment of the High Court and held thatthe G.O. is valid being within the ambit of Article 15(4) of the Constitution. Be that asit may, the State Government while exercising the power conferred under Section 3of the Commission of Inquiry Act, 1952, appointed a Commission for enquiryconsisting of Single Member by name N.K. Muralidhara Rao, Ex-Officio Secretary,Social Welfare and Commissioner, Weaker Sections Housing Programme, statingthat

“The Commission shall –

i. review the recommendations made by the Andhra Pradesh BackwardClasses Commission, 1970 and the implementation thereof for the purposeof determining the need to continue the existing special provision in theirfavour under Articles 15(4) and 16(4) of the Constitution of India, and toreview the existing list of Backward Classes in the light of the social andeducational progress achieved by the classes;

ii. examine the social and educational backwardness of minoritycommunities for the purpose of including them within the purview of theBackward classes of citizens under Articles 15(4) and 16(4) of theConstitution of India.

iii. present its report to the Government within a period of three months from

the data on which it commences its enquiry….” Muralidhra Rao Commissionsubmitted its report on 25-9-1982 containing, inter alia, the followingrecommendations;

i. to include 9 communities (Ayyaraka and others) among the BackwardClasses,

ii. to delete “Mehtars” (Muslim) from the list inasmuch as the said communityhas already been included in the list of scheduled castes, similarly, to delete“Kammara” sub-sect of “Visva Brahmmas’ which is also known as “Kammari”from the list of Backward Classes inasmuch as this community has beenincluded in Scheduled Tribes;

iii. to delete the words “whose occupation is begging” occurring under theEntries “Jangam” and “Thammali” to include only “Kinthala Kalingas” in thelist of Backward Classes and to exclude “Burugan Kalingas” therefrom”.

iv. the four sub-groups among the Backward Classes were re-classified intofive groups. The former Group “C” was designated as Group ‘E’ and Group‘D’ was split up into Groups ‘C’ and ‘D’;

v. to enhance the quota of reservation both in educational institutions, aswell as services, from 25% to 44%. The inter se division of this 44% amongthe sub-groups ‘A’ to ‘E’ was specified as 10%, 16%, 8%, 8% and 2%respectively;

vi. the reservations so provided shall be in force for a period of 25 years,whereafter, a detailed review may be undertaken either to continue thereservations or to modify them.”

Thereafter, the commission has submitted a report and by virtue of G.O.Ms.No.166Social Welfare (P) Department, dated 15-07-1986 the Commission’s Report wasaccepted by the Government of A.P., and directed as follows: --

“a) the 9 communities recommended by the Muralidhara Rao Commission beincluded among the Backward Classes;

2. the recommendations of the Commission to delete “Mehtars” (Muslim) and“Kammaras” from the list of backward classes is rejected, inasmuch as thesaid recommendation is based upon a mistake of fact;

3. the recommendation of the Commission regarding deletion of certain wordsfrom the Entry relating to “Jangam” and “Thammali” is accepted. Similarly,

among “Kalingas” only “Kinthala Kalingas” shall be included in the list ofBackward Classes, and “Burugam Kalingas” excluded;

4. the Government accepts the recommendation of the Commission to havefive sub-groups among the Backward Classes i.e., “A” to “E” and also theinter se distribution of quota among them in the proportion of 10%, 16%, 8%,8% and 2% respectively;

5. the 44 de-notified and Nomadic Tribes mentioned in paragraph 10 of theG.O. shall be included in Sub-Group ‘A’ of the Backward Classes;

6. the list of Backward Classes appended to the G.O. shall be the list ofBackward Classes both for the purpose of Article 15(4) as well as Article16(4);

7. the Government accepts the recommendation of the M.R.Commission toenhance the reservation for Backward Classes to 44%;

8. there shall be no inter-change among the different groups of BackwardClasses; any unfilled vacancies in regard to appointments in any of thegroups shall be carried forward to the same group for a period of three years;

9. the benefits of reservation for Backward Classes should be restricted only tothose belonging to families whose income does not exceed Rs.12,000/- perannum;

10. there is no need to provide for any reservations for Backward Classes inregard to promotions and recruitment by transfer;

11. The reservations so made shall continue up to 2000 A.D.

12. Selections for recruitment and selections for admission already made shallnot be affected by this G.O.”

28. The total number of Communities/Groups included in the list of BackwardClasses comes to 146. G.O.Ms.No.167 was issued on the same day enhancing thereservations in favour of Scheduled Castes and Scheduled Tribes from 14% and4%, to 15% and 6% respectively. This is stated to have been done on the basis of1981 census, according to which the population of Scheduled Castes andScheduled Tribes is 14.87% and 5.93% respectively. G.O.Ms.No.168 issued on thesame day prescribes the roaster of reservations in consistence with theenhancement in the quota of reservation effected through G.O.Ms.Nos.166 and167.”

29. The said G.O. was challenged in a batch of Writ Petitions in Narayana Rao v.State of Andhra Pradesh17 and a Full Bench of this Court has upheldG.O.Ms.No.167 by striking down clauses 13, 14, 15 and 18 as violative of Articles15 and 16 of the Constitution. Clause 17 of the said G.O. was upheld with certain

modifications. Like wise the Full Bench also upheld G.O.Ms.No.168, which wasissued consequent to G.O.Ms.No.166 and it has been mentioned that the validity ofthe continued efficacy of G.O.Ms.No.1793, dated 23-9-1970 as extended byG.O.Ms.No.136 dated 21-08-1979 shall in no way be affected. The provisions madetherein shall have effect and shall continue to be in operation until furthermodification by the Government or for the period specified in G.Os., whichever isearlier. It has to be observed that the Government has accepted therecommendation of the Muralidhar Rao Commission in classifying the backwardclasses in to five sub-groups among backward classes i.e., A to E and also inter sedistribution of quota among them in proportion of 10%, 16%, 8%, 8% and 2%respectively; however, rejected the recommendation of the Muralidhara Rao’sCommission to delete Mahatar Muslims from the list of backward classes holdingthat such recommendation is based on mistake of fact.

30. The Government of Andhra Pradesh has constituted Backward Classcommission in the year 1994 under Andhra Pradesh Commission for BackwardClasses Act. 1993 (‘the Act, 1993’ for short) to examine the request for inclusion ofany class of citizens as a backward class in the list of backward class of citizens.The same is still pending. However, in the year 2004 the Government directed theCommissioner of Minority welfare to submit a report on social, economical andeducational backwardness of Muslim community in the State so as to considerwhether they can be included in the list of backward classes of citizens. Thereafter,a report dated 5-7-2004 was submitted, basing on which GOMs No. 33 dated 12-7-2004 was issued providing 5% reservation to the entire Muslim community in theState. The said G.O was challenged in T Muralidhar Rao v. State of A.P. (3 supra),wherein a Larger Bench of this Court set aside the said G.O holding that in theabsence of any criteria laid down for ascertaining backwardness, the report of theCommission was bad in law. Thereafter, the Government vide GOMs No. 57 dated18-11-2004 sought opinion of the Commission as to whether the Muslim communitycould be included in the list of backward classes and the commission has submittedits opinion. Basing on the same, the State Government issued an ordinance beingA.P. Reservation of Seats in the Educational Institutions and of appointments/postsin Public Services under the Muslim Community Ordinance, 2005 declaring theentire Muslim community as belonging to backward class and providing for 5%reservation to them in educational institutions and public employment. When thesaid ordinance was challenged in B Archana Reddy case( supra) a Five JudgeBench of this Court declared the same as unconstitutional since the Muslimcommunity as a whole, based on religion, was declared as backward class, withoutthere being any identification by the B C Commission of social backwardness ofMuslims. It appears the said judgment was challenged before the apex Court andthe SLP filed in that connection is pending.

31. While so, the State had again referred the matter of providing reservations toMuslims by identifying socially and educationally backward groups among theMuslims. The Commission has submitted a report. Pursuant to which theGovernment has issued the impugned Act called as “The Andhra PradeshReservations in favour of Socially and Educationally Backward Classes ofMuslims Act, 2007” which has been challenged in the present Writ Petitions, asviolative of Articles 14, 15(4) and 16(4) of the Constitution of India.

LEGISLATIVE COMPETENCY TO MAKE THE REFERENCE:

32 The other contention raised by the leaned Advocate General was that theenactment itself is affirmative action of the State and the same cannot bequestioned on the ground of strict scrutiny or identification of data. It is also pointedout by the learned Advocate General that the certain classes of Muslims have beenclassified as backward class citizens by the State under Articles 15(4) and 16(4)and reservations in the educational institutions were accordingly made. Argumentsadvanced by all the counsel have been dealt in extenso by the Hon’ble the ChiefJustice.

33. The petitioners’ argument is that the State Government has no powerwhatsoever to refer the matter to B.C. Commission at the time when the matters withreference to inclusion or exclusion of some castes are still pending.

33. After Archana Reddy’s case, a reference has been made on 17-04-2007 inNo.5488/C2/2004-12 by the Principal Secretary to Government, Backward ClassesWelfare Department, A.P. Secretariat, Hyderabad to the Member-Secretary, A.P.Commission for Backward Classes as under:-

“Government referred the matter to the Andhra PradeshCommission for Backward Classes to advice on inclusion ofMuslims in Andhra Pradesh in the list of Backward Classes forthe purpose of articles 15(4) and 16(4)of the Constitution videletters first read above. Accordingly, the Commission hadfurnished its report and Government issued orders inG.O.Ms.No.18, B.C. Welfare Department, dated 25-06-2005and the Legislative Assembly of Andhra Pradesh enacted theAndhra Pradesh Reservation of seats in the EducationalInstitutions and of appointments or posts in the Public Servicesunder the State to Muslim Community Act, 2005 (Act 21 of2005) providing 5% reservation to Muslims of seats inEducational Institutions and appoints in the Public Services inthe State excluding creamy layer. However, the High Court ofAndhra Pradesh in its Judgment in W.P. No.13832/05 dated 7-11-2005 set aside the above Act of 2005. Government filedCivil Appeal No.7513 of 2005 before the Supreme Courtagainst the above judgment of the High Court of AndhraPradesh and it is pending.

However, in light of the commitment of the Governmenttowards the cause of socially and educational backwardclasses of the population, including those belonging to theMuslim Community, and taking note of the observations madeby the High Court in the said judgment and of thedevelopments since the judgment of the Andhra Pradesh HighCourt, it is decided to make a reference to the A.P. Commissionfor Backward Classes under Section 9(1) of the A.P.Commission for Backward Classes Act, 1993 to make a survey

/ study of the Muslim community in Andhra Pradesh andidentify the classes / communities / groups among the Muslimpopulation in the State that can be classified as socially andeducationally backward classes of citizens in the light of thejudgment of the Hon’ble High Court in W.P. No.13832 of 2005dated 7-11-2005 and judgment of the Hon’ble Supreme Courtin the Indra Sawhney case (AIR 1994 SC 477), so that specialmeasures like reservations be considered for such groups /classes / communities in terms of Article 15(4), 15(5) 16(4) andother provisions of the Commission of India.

3. The report with clear recommendation of thecommission with data pertaining to such groups /classes / communities to justify the recommendationsshould be sent to the Government as early as possible.”

34. Again on 11-06-2007 the Principal Secretary addressed a letter to the BackwardClasses Commission forwarding a copy of the report of identification of socially andeducationally backward classes in the Muslim Community of Andhra Pradesh andrecommendations made by Sri P.S. Krishnan IAS (Retd.), Advisor to Government ofAndhra Pradesh, Backward Classes Welfare, submitted to the Government on 11-06-2007, requesting the Commission to examine the Report and send itsrecommendations to the Government.

35. In this connection, it is relevant to refer to Sections 9 and 10 of A.P. Commissionfor Backward Classes Act, 1993 which read thus;

Section 9 of the Act, 1993 reads:

“9. Functions of the Commission: (1) The Commission shall examinerequests for inclusion of any class of citizens as a backward class in thelists and hear complaints of over-inclusion or under-inclusion of anybackward class in such list and tender such advise the Government as itdeems appropriate.

(2) The Commission shall examine and make recommendations on anyother matter relating to the backward classes that may be referred to it bythe Government from time to time.

(3) It shall be competent for the Commission at the request of theGovernment to make an interim report in regard to any Castes orClasses in whose cases urgent action under the Act is, in the opinion ofthe Government necessary. Any action taken by the Government on thebasis of such report shall be subject to review with prospective effect asand when the final report of the Commission is received.

(4) The Commission shall enquire into specific complaints with respectto then on-observance of the rule of reservation in the admissions intoeducational institutions and also reservation of appointments to

posts/services under the Government and other local authority or otherauthority in the State, as applicable to the listed Backward Classes andfurnish its report to the Government.”

Section 10 of the Act, 1993 reads:

“1 0 . Powers of the Commission:- The Commissions shall whileperforming its functions under sub-section (1) of Section 9 shall have allthe powers of a Civil Court trying a suit and in particular in respect of thefollowing matters namely:-

(a) summoning and enforcing the attendance of any person from anypart of State and examining him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any

Court or office;

(e) issuing commissions for the examination of witnesses

and documents; and

(f) any other matter which may be prescribed.”

36. Section 9 of Act 1993 enables the Commission to examine and recommend anymatter relating to the backward class that may be referred to it by the StateGovernment from time to time. Even though a contention is sought to be raised bythe petitioners before this Court that present reference is made under Section 9(1) ofthe Act 1993, and therefore, reference itself is bad, has to be rejected since theGovernment has got every power to refer the issue of deciding backwardness ofcertain groups in view of the Constitutional provisions and judgments of theSupreme Court. May be in the letter dated 17-04-2007 the Government has statedthat the reference was made under Sec. 9(1) of the Act, by mentioning a wrongprovision, but it is well settled principle that mere misquotation of a provision doesnot invalidate the order.

37. It is necessary to notice Section 11 of the Act which reads thus:

“(1) The Government may at any time, and shall, at the expiration often years from the coming into force of this Act and every succeedingperiod often years thereafter, undertake revision of the lists with aview to excluding from such lists those classes who have ceased tobe backward classes or for including in such lists new backwardclasses.

(2) The Government shall while undertaking any revision referred toin sub-section (1) consult the commission.”

From the above, it is clear that Section 11(2) mandates that the Government shallconsult the B.C. Commission before undertaking any revision of backward classeslist. That apart, this Court in T. Muralidhar case while considering the validity of G.O.No.33 dated. 12.7.2004, which was challenged therein, providing 5% reservation toMuslims in educational institutions and employment held to be ultra vires as theGovernment has not consulted A.P. Backward Classes Commission beforeproviding reservations. Therefore, as per Section 11(2) of the Act, which is amandatory provision, the State Government is bound to consult the A.P. BackwardClass Commission before undertaking any revision (inclusion or addition of anynew class) of the backward classes list. Even otherwise the intention of theGovernment is very clear as the said letter has referred to Article 15(5) ofConstitution of India. Further, the State Government has constituted B.C.Commission under Andhra Pradesh Commission for Backward Classes Act, 1993(‘the Act, 1993’ for short), which is a statutory Body and the functions of theCommission are controlled under Section 9 of the Act and therefore the StateGovernment has the power to make a reference to the Commission to identify thebackwardness among Muslims. Hence, the State has got every power to make areference to the B.C. Commission to make a survey or study of the Muslimcommunity in Andhra Pradesh and identify the classes or groups among them toclassify them as socially and educationally backward classes of citizens. As such,the contention of the petitioners that the Government has no power to make areference to Backward Classes Commission cannot be accepted.

VALIDITY OF THE IMPUGNED ACT

38. Before examining as to the validity of impugned Act, it is necessary to notice thatArticle 14 of the Constitution of India makes it obligatory upon the State not to denyany person equality before law or the equal protection of laws within the territory ofIndia. As per Article 15 (1) of the Constitution of India the State shall notdiscriminate against any citizen on grounds only of religion, race, caste, sex, placeof birth or any of them. Article 15(4) of the Constitution of India envisages thatnothing in this Article or in clause (2) of Article 29 shall prevent the State frommaking any special provision for the advancement of any socially and educationallybackward classes of citizens or for the Scheduled Castes and Scheduled Tribes.

39. The other contention raised by the leaned Advocate General was that theenactment itself is affirmative action of the State and the same cannot bequestioned on the ground of strict scrutiny or identification of data. It is also pointedout by the learned Advocate General that the certain classes of Muslims have beenclassified as backward class citizens by the State under Articles 15(4) and 16(4)and reservations in the educational institutions were accordingly made.

40. The petitioners’ argument is that the State Government has no powerwhatsoever to refer the matter to B.C. Commission at the time when the matters withreference to inclusion or exclusion of some castes are still pending.

41. The competency of the State Government to enact a particular law is not indispute in view of the decision of the apex Court in Ashok Kumar Thakur’s case.Further, The State Government has constituted B.C. Commission under AndhraPradesh Commission for Backward Classes Act, 1993 (‘the Act, 1993’ for short),which is a statutory body and the functions of the Commission are controlled underSection 9 of the Act. The State Government has the power to refer to theCommission to identify the backwardness among certain classes whether theybelong to Hindus’ or ‘Non-Hindus’ if it so desires.

42. The present controversy centers around the reservation of certain groups ofMuslims as ‘backward classes’. This is a case where the impugned legislation wasenacted purported to be under Article 15(5) of the Constitution of India, which wasinserted under the Constitution (Ninety-third Amendment) Act, 2005.

43. Article 15(5) of the Constitution of India reads as under:

“Nothing in this article in sub-clause(g) of clause (1) of Article 19 shallprevent the State from making any special provision, by law, for theadvancement of any socially and educationally backward classes ofcitizens or for the Scheduled Castes or the Scheduled Tribes in so faras such special provisions relate to their admission to educationalinstitutions including private educational institutions, whether aided orunaided by the State, other than minority educational institutionsreferred to in clause (1) of Article 30.”

44. In M.R. BALAJI case, the Apex Court has held that the backwardnesscontemplated by Article 15(4) was both social and educational. It is not either socialor educational but it is both social and educational.

45. In K.S. JAYASREE v. STATE OF KERALA18, the Apex Court has observed asbelow at paragraph No.13:

“13 . Backward classes for whose improvementspecial provisions are contemplated by Article 15(4) arein the matter of their backwardness comparable toScheduled Castes and Scheduled Tribes. This Courthas emphasised in decisions that the backwardnessunder Article 15(4) must be both social and educational.In ascertaining social backwardness of a class ofcitizens, the caste of a citizen cannot be the sole ordominant test. Just as caste is not the sole or dominanttest, similarly poverty is not the decisive and determiningfactor of social backwardness.”

46. In K.C. VASANTH KUMAR v. STATE OF KARNATAKA19 Justice O.Chinnappa Reddy while dealing with the two expressions i.e. “backward class ofcitizens” and “socially and educationally backward classes of citizens” has held asfollows in paragraph No.49:

“49.Now, it is not suggested that the socially and educationallybackward classes of citizens and the Scheduled Castes andthe Scheduled Tribes for whom special, provision foradvancement is contemplated by Art. 15(4) are distinct andseparate from the backward classes of citizens who are notadequately represented in the services under the State forwhom reservation of posts and appointments is contemplatedby Art. 16(4). 'The backward classes of citizens referred to inArt. 16(4), despite the short description, are the same as 'thesocially and educationally backward classes of citizens and theScheduled Castes and the Scheduled Tribes', so fullydescribed in Art. 15(4): Vide Trilokinath Tiku v. State of Jammuand Kashmir and other cases (AIR 1967 SC 1283).”

47. In Indra Sawhney-I as stated supra, His Lordship Justice Sawant has observedas follows in paragraph No.398:

“398 . Xxxxxxxxxxxxxx Our Constitution, unlikemany others, incorporates in it the framework of thesocial change that is desired to be brought about. Thechange has to be ushered in as expeditiously aspossible but at the same time with the least friction anddislocation in national life. The duty to bring about thesmooth change over is cast on all institutions includingthe judiciary. A deep knowledge of social life with itsmultitudinous facets and their interactions is necessaryto decide social issues like the one in question i.e. asuperficial approach will be counter-productive.”

It has also been further observed by Justice Sawant at paragraph No.406 that:

“406. Xxxxxxx. The basic problems of this country aremass-oriented. India lives in villages, and in slums intowns and cities. To tackle their problems and toimplement measures to better their lot, the country needspersonnel who have first-hand knowledge of theirproblems and have personal interest in solving them.What is needed is empathy and not mere sympathy. One

of the major reasons why during all these years afterIndependence, the lot of the downtrodden has howeverbeen marginally improved and why majority of theschemes for their welfare have remained on paper, isperceptibly traceable to the fact that the implementingmachinery dominated as it is by the high classes, isindifferent to their problems. The Mandal Commission'slament in its report' that it did not even receive replies tothe information sought by it from various Governments,departments and organizations on the caste-wisecomposition of their services, speaks volumes or, thepoint. A policy of deliberate reservations and recruitmentin administration from the lower classes, who form thebulk of the population and whose problems primarily areto be solved on a priority basis by any administrationwith democratic pretensions, is therefore, not onlyeminently just but essential to implement theConstitution, and to ensure stability, unity and prosperityof the country.”

48. The Apex Court in Indra Sawhney’s case by majority of judgment has upheldthe reservation in favour of the socially and educationally backward classes. In thesaid case, Justice Jeevan Reddy, speaking on behalf of the Majority, has observedat paragraph Nos. 782, 795 and 796-797 as under:

“782. Coming back to the question ofidentification, the fact remains that one has to beginsomewhere – with some group, class or section. Thereis no set or recognized method. There is no law or otherstatutory instrument prescribing the methodology. Theultimate idea is to survey the entire populace. If so, onecan well begin with castes, which represent explicitidentifiable social classes/groupings, more particularlywhen Article 16(4) seeks to ameliorate socialbackwardness. What is unconstitutional with it, more sowhen caste, occupation poverty and socialbackwardness are so closely interwined in our society?[Individual survey is out of question, since Article 16(4)speaks of class protection and not individual protection].This does not mean that one can wind up the process ofidentification with the castes. Besides castes (whetherfound among Hindus or others) there may be othercommunities, groups, classes and denominations whichmay qualify as backward class of citizens. For example,in a particular State, Muslim community as a whole maybe found socially backward. (As a matter of fact, they areso treated in the State of Karnataka as well as in theState of Kerala by their respective State Governments).

Similarly, certain sections and denominations amongChristians in Kerala who were included amongbackward communities notified in the former princelyState of Travancore as far back as in 1935 may also besurveyed and so on and so forth. Any authority entrustedwith the task of identifying backward classes may wellstart with the castes. It can take caste ‘A’, apply thecriteria of backwardness evolved by it to that caste anddetermine whether it qualifies as a backward class ornot. If it does qualify, what emerges is a backward class,for the purposes of clause (4) of Article 16. The conceptof ‘caste’ in this behalf is not confined to castes amongHindus. It extends to castes, wherever they obtain as afact, irrespective of religious sanction for such practice.Having exhausted the castes or simultaneously with it,the authority may take up for consideration otheroccupational groups, communities and classes. Forexample, it may take up the Muslim community (afterexcluding those sections, castes and groups, if any, whohave already been considered) and find out whether itcan be characterized as a backward class in that Stateor religion, as the case may be. The approach may differfrom State to State since the conditions in each Statemay differ. Nay, even within a State, conditions maydiffer from region to region. Similarly, Christians mayalso be considered. If in a given place, like Kerala, thereare several denominations, sections or divisions, eachof these groups may separately be considered. In thismanner, all the classes among the populace will becovered and that is the central idea. The effort should beto consider all the available groups, sections andclasses of society in whichever order one proceeds.Since caste represents an existing, identifiable, socialgroup spread over an overwhelming majority of thecountry’s population, we say one may well begin withcastes, if one so chooses, and then go to other groups,sections and classes. We may say, at this stage, that webroadly commend the approach and methodologyadopted by the Justice O. Chinnappa ReddyCommission in this respect.

7 9 5 . xxxxxxxx. It must be left to theCommission/Authority appointed to identify thebackward classes to evolve a proper and relevantcriteria and test the several groups, castes, classes andsections of people against that criteria. If, in any case, a

particular caste or class is wrongly designated or notdesignated as a backward class, it can always bequestioned before a court of law as well. We may addthat relevancy of the criteria evolved by MandalCommission (Chapter XI) has not been questioned byany of the counsel before us. Actual identification is adifferent matter, which we shall deal with elsewhere.

796-797. We may now summarise our discussion underQuestion No.3. (a) A caste can be and quite often is asocial class in India. If it is backward socially, it would bea backward class for the purposes of Article 16 (4).Among non-Hindus, there are several occupationalgroups, sects and denominations, which for historicalreasons are socially backward. They too representbackward social collectivities for the purposes of Article 16 (4). (b) Neither the constitution nor the law prescribethe procedure or method of identification of backwardclasses. Nor is it possible or advisable for the court tolay down any such procedure or method. It must be leftto the authority appointed to identify. It can adopt suchmethod/procedure as it thinks convenient and so long asits survey covers the entire populace, no objection canbe taken to it. Identification of the backward classes cancertainly be done with reference to castes among, andalong with, other groups, classes and sections ofpeople. One can start the process with the castes,wherever they are found, apply the criteria (evolved fordetermining backwardness) and find out whether itsatisfies the criteria. If it does – what emerges is a“backward class of citizens” within the meaning of andfor the purposes of Article 16(4). Similar process can beadopted in the case of other occupational groups,communities and classes, so as to cover the entirepopulace. xxxxxxxxxxxx”

49. Following the said decision B. Sudershan Reddy, J speaking for a LargerBench of this Court in T. Muralidhar Rao case (supra 3) has observed as follows:

249. The following are our conclusions and answers to the questionsdealt with hereinabove:

1(a) The expression "socially and educationally Backward Classes" inArticle 15(4) and the expression "backward class of citizens" in Article16(4) may include any caste, community or social group which may beidentified as socially backward. That a caste is also a class of citizensand if such caste as a whole in its entirety is socially and educationally

backward, provisions can be made in favour of such caste on the basisthat it has socially and educationally backward class of citizens withinthe meaning of Article 15(4). The same can be treated as a backwardclass within the meaning of Article 16(4). Social backwardness may befound in other groups, classes and sections among the populace apartfrom the caste.

1(b) The Muslims as a group are entitled to affirmative action/socialreservations within the constitutional dispensation, provided they areidentified as Socially and Educationally Backward Class for thepurposes of Article 15(4) and Backward Class of Citizens under Article16(4). Providing social reservations to the Muslim Community orsections or groups amongst them in no manner militate againstsecularism, which is a part of basic structure of the Constitution,

(2) The problem of determining who are socially Backward Classes is avery complex one. The caste which is a social class if foundeducationally and socially backward for the purposes of Article 15(4), itwould be socially and educationally backward class. Similarly, if it isbackward socially, it would be a backward class for the purposes ofArticle 16(4).

The Backward Classes can be identified on the basis of. a caste whichis a social class in India provided it is identified to be socially andeducationally backward for the purposes of Article 15(4) and backwardfor the purposes of Article 16(4). There are no legal or constitutionalimpediments for identification of the Backward Classes with reference tocaste. However, the requirement is that a rational and scientific criteriamust be evolved for determining backwardness and that criteria must beapplied to find out whether any caste, occupational groups, classes orsections of people qualify for classifying them as Backward Classes. Ifthe criteria evolved and applied for identification of the BackwardClasses is found to be improper and invalid, then the classification ofsocially Backward Classes based on that criteria will have to be held tobe inconsistent with the requirements of Articles 15(4) and 16(4).

In case of non-Hindus social backwardness cannot be identified for thepurposes of recognizing as socially backward class on the basis ofcaste in the conventional sense known to Hindu Society. In all suchcases, the part played by the occupation, conventional belief and placeof habitation coupled with poverty may play a dominant and significant

role in determining social backwardness. No particular procedure ormethod of identification of Backward Classes is prescribed. Theauthority appointed to identify the Backward Classes is free to adoptsuch method/procedure as it thinks fit and proper and so long, themethod/ procedure adopted for the purposes of identification of theBackward Classes is rational, scientific, fair and adequate, the samemay satisfy the constitutional requirement. But in either case,identification of Backward Classes cannot be based exclusively andsolely on the basis of caste.

(3) The process of identification of Muslims as a group as sociallybackward by the Commissionerate of Minorities Welfare is totally vitiatedsince it did not determine any specific criteria for the purposes ofidentifying the Backward Classes and applied the same in order to findout as to whether the Muslims qualify to categorize them as sociallybackward and as well as backward for the purposes of Articles 15(4)and 16(4). The Commissionerate acted in undue haste. TheCommissionerate failed to undertake any serious investigation andenquiry as is required before identifying the Muslim Community as asocially Backward Class. In the absence of laying down the criteria forascertaining the backwardness, the entire report is to be treated as anexercise in futility. The approach adopted by the authority is improperand invalid. In the absence of any such finding as to the socialbackwardness, the Muslims cannot be classified as Backward Classeseither for the purposes of Article 15(4) or Article 16(4) of the Constitutionof India.

4. That Section 11(2) of Act 20 of 1993 is mandatory in its nature. TheState Government is bound to consult the A.P. Backward ClassesCommission before undertaking any revision of the Backward Classeslist. The expression "revision" includes inclusion or addition of any newclass into the list of Backward Classes. In the absence of suchconsultation, the State Government in issuing the impugned G.O. actedin contravention of the mandatory provision of law. The G.O is, therefore,ultra vires.

5. The creamy layer is required to be excluded in the course ofidentification of Backward Classes. Non-exclusion of creamy layer hasthe same effect of inclusion of forward caste/groups in the list ofBackward Classes. The creamy layer among the Muslim community arenot entitled to the benefit of social reservations. The impugned G.O.which does not make any provision to exclude the creamy layer from thebenefit of social reservations is violative of Articles 14 and 15(1) and

16(1) and also of Articles 15(4) and 16(4) of the Constitution of India.

6. The reservations contemplated in clause (4) of Article 15 and as wellas clause (4) in Article 16 should not exceed 50% unless to meetextraordinary situations. No case as such is made out in justification ofexceeding 50% reservations.

7. The State did not make out that reservations in favour of Muslimswere made under Articles 15(1) and 16(1) of the Constitution of India.The plea that reservations can be made in favour of minorities underArticles-15(1) and 16(1) of the Constitution is untenable andunsustainable as the same would amount to making reservations on thebasis of religion which is prohibited by Articles 15(1) and 16(2) of theConstitution of India.

8. The determination of backwardness and the process of identificationis not a subjective exercise nor a matter of subjective satisfaction. Theexercise is an objective one. The authority entrusted with the task ofidentification is required to evolve objective, social, sociological andother considerations and apply the same before any group or class ofcitizens could be treated as backward. That if the body entrusted withthe task of identification or for that matter, the Executive includes, forcollateral reasons any group or class not specifying the relevant criteriaas a backward class, it would be a clear case of fraud on power. Thedecision is liable to be tested on the touchstone of arbitrariness,irrationality and as well as on the grounds of non-application of mind orperversity or on the ground that it was formed on collateral grounds. Thenorms and parameters for adjudging the validity of administrative actionare applicable for testing the validity of exercise of power and inparticular, the action taken under Articles 15(4) and 16(4) so far as theidentification of Backward Classes is concerned; the yardstick is sameand not different.

However, formation of opinion regarding adequacy of representation inthe services of the State is within the subjective satisfaction of theGovernment. The State is entitled to form its opinion on the basis of thematerial it has in its possession already or it may gather such materialfrom a Commission/Committee, person or authority, but even thatopinion formed is not beyond the judicial scrutiny altogether. In theabsence of existence of the circumstances and the material relevant tothe formation of opinion for drawing requisite satisfaction, the decision ischallengeable; the judicial scrutiny would be available on the ground ofnon-application of mind or formulation of collateral grounds. If theformation of opinion is found to be mala fide or is found to be basedwholly on extraneous and/ or irrelevant grounds, it is liable to be set

aside.

The words of Article 16(4) are not simplicitor, "in the opinion of the State""is not adequately represented" in the services under the State, the Statemay make provision for the reservation of appointments or posts infavour of backward class of citizens. It is a conditional power and thesame can be exercised provided the requisite factual situation which is acondition precedent to the exercise of power exists. Whether conditionprecedent to the formation of the opinion have a factual basis canalways be examined by the Court. However, the sufficiency of thematerial, reasonableness and propriety cannot be gone into by thisCourt.

250. In the result, G.O. Ms. No. 33, dated 12.07.2004 is struck down asviolative of Articles 14, 15(1) and (4), 16(1) and 16(4) of the Constitutionof India.

251. The following directions are given to the Government of AndhraPradesh:

(1) The Government of Andhra Pradesh shall forthwith initiate theprocess of reconstituting the Andhra Pradesh Commission for BackwardClasses and complete the same within a period of three months. Thatimmediately upon such reconstitution, the Government shall initiate theprocess of consultation and seek the opinion of the Commission forinclusion of the Muslim Community into the list of Backward Classes.

(2) The Commission shall examine the requisition/request of theGovernment and shall decide the same by duly giving its opinion withina period of six months from the data of such requisition/request beingmade by the State Government. It shall be open to the State Governmentto forward the entire material in its possession, including the materialcollected by the Commissionerate of Minorities Welfare for the perusaland consideration of the Backward Classes Commission.

(3) The identification of any caste, social group or community involvesexclusion of creamy layer. The State of Andhra Pradesh though a party to thedecision rendered by the Supreme Court in Indra Sawhney's case (supra), sofar did not lay down any criteria for identification of creamy layer. In thecircumstances, it would be just and necessary to direct the State Governmentto lay down the criteria for identification of creamy layer so that it could be

applied while considering the case of the Muslim Community for identificationas backward class. That an appropriate criteria shall be evolved by theGovernment in terms of the directions of the Supreme Court in IndraSawhney's case (supra). The very process of identification of BackwardClasses involves identification of creamy layer amongst them. The criteria inthis regard shall be laid down by the State Government within a period ofthree months or in the alternative to follow the criteria laid down by theGovernment of India in its Memorandum dated 8.9.1993 which has receivedits affirmation in Ashok Kumar Thakur v. State of Bihar (supra) and IndraSawhney's case-II (supra), in order to facilitate the expeditious disposal of theclaim of the Muslim Community for their identification as a Backward Class.”

50. Another Larger Bench of this Court, referring to the decisions in Indra Sawhneyand Muralidhar Rao’s cases, in Archana Reddy’s case held as under:

Paragraph No.114 of Archana Reddy’s case reads as follows:

“114. The Commission has neither found nor recorded thatself-employment in petty business, occupations likerickshaw puling, push-cart trade, agricultural labour,marginal land ownership, mal-nutrition, inaccessibility tomedical facility, lower life expectancy, engagement asunskilled labour, masons or drivers, pursuit of professionsor occupations such as cycle repairing or vulcanizing,engagement of women and children in beedi-rolling, arecircumstances either peculiar to the Muslim community orthat professing the faith of Islam (definition Ordinance) andthese (occupational, professional, extreme poverty andwant) circumstances have a causal relationship. In theabsence of a causal nexus between the Islam faithaggregate and the pursuit of certain professions, trades orhumble economic circumstances; the occupation and/or themeans test, provides neither a legal nor a rational andlogical basis for the conclusion that all Muslims are sociallybackward because some or many of them are in direeconomic straits.”

It has also been observed at paragraph No.119 as follows:

“119. On the analysis above we hold that the Commission had no basis, inconcept or fact to support the conclusion that Muslims are socially backward.This conclusion of the Commission is the produce of a succession offundamental misconceptions: that Muslims are a homogeneous collectivity;that humble occupations or trades, poverty and unhygienic habitation arespecific (in some way) attributes of Muslims; and that these attributesconstitute the Muslims a social class and a backward class. In theconsidered view of this Court, each of these assumptions is erroneous. TheCommission's conclusions based on a composition of erroneousassumptions, are therefore unsustainable.”

In the said decision it was also held as under:

293. The very purpose of issuing notification inviting objections andconducting public hearings, would be defeated if the criteria is notdecided prior to undertaking the collection of data and putting theobjectors on notice. (para293)

While determining the social backwardness of a class ofcitizens, an expert body like B.C. Commission has to necessarilyevolve absolutely relevant criteria for the purpose of caste test,occupation test and means test. (para 378)

While undertaking an exercise for identification of backward classof citizens, the Commission is legally bound to be fair and transparentand afford all such opportunity to objectors and proponents foreffective representation before the Commission. (para 379)”

51. With regard to the publication of criteria and calling for the objections, it has tobe observed that the A.P. Backward Classes Commission did not envisage anysuch procedure to be followed at the pre-identification stage enabling the objectorsto file their objections during the course of hearing. Though in Indra Sawhney’scase, it was held that it is for the State to adopt its own procedure, yet no procedureknown to law is followed by the Commission.

52. In the instant case after hearing the arguments advanced by both the counsel forpetitioners as well as learned Advocate General whose argument is based on theground that there is no necessity for the BC Commission or the State Government topre-publish the data or the criteria, the point that arises for consideration is Whetherthe criteria can be evolved at different levels by the Commission. If the principlesevolved in Archana Reddy’s case are strictly looked into, they envisage as follows:

“Firstly notification of proposed criteria;

Secondly conducting public hearing for obtaining objections on notice; and

Thirdly evolving a rational criteria for detecting the caste test or occupationtest and the means test”.

53. In Archana Reddy it was never spelt out on what basis the criteria has to beevolved by the commission and at what stage the criteria should be the componentsof caste test, occupation test and means test. Looking at the principles as laid downin the said case, the point emerges is that objections have to be called for at firstinstance followed by conducting a population survey and the conclusions have tobe arrived at basing on the criteria which is not same criteria at first instance for thereason that the objectors have no opportunity to meet the criteria evolved andarrived at after collecting the data. If the principles laid in Archana Reddy’s case areto be construed as strict principles, it leads to multiplicity of criteria as stated above.The law laid down in the said case cannot be applied in rigidity, in the light of the

observations made by the apex Court in Indra Sawhney-I that there is norecognized method or law statutory instrument prescribing the methodology and theultimate idea is to survey the populace of Muslim (in this case).

54. Under the above circumstances, with reference to the guidelines issued inArchana Reddy it has also to be observed that provisions of the Act, 1993 does notprovide for any publication of criteria or to call for objections even before theprocess of identification has started.

55. In Archana Reddy’s case the learned Judges while dealing with the standardsof review, observed that the standards can be classified as (a) the mere rationalitystandard; (b) strict scrutiny standard; and (c) the intermediate-level review standard.

56. With regard to strict scrutiny standard of review, learned Advocate General andother counsel appearing for respondents have vehemently contended that in view ofthe recent judgment of the Supreme Court in Ashok Kumar Thakur Case20 the saidprinciple cannot be made applicable to the cases of reservation.

57. In this regard, it is apt to notice the observations of the Supreme Court in theabove said case, which read as under;

“209. The aforesaid principles applied by the Supreme Court of the UnitedStates of America cannot be applied directly to India as the gamut ofaffirmative action in India is fully supported by constitutional provisions andwe have not applied the principles of “suspect legislation” and we have beenfollowing the doctrine that every legislation passed by Parliament ispresumed to be constitutionally valid unless otherwise proved. We haverepeatedly held that the American decisions are not strictly applicable to usand the very same principles of strict scrutiny and suspect legislation weresought to be applied and this Court rejected the same in Saurabh Chaudrivs. Union of India ((2003) 11 SCC 146). Speaking for the Bench, V.N. Khare,C.J., said (scc P.164, PARA 36)

“36. The strict scrutiny test or the intermediate scrutiny testapplicable in the United States of America as argued by Shri Salvecannot be applied in this case. Such a test is not applied in IndianCourts. In any event, such a test may be applied in a case where alegislation ex facie is found to be unreasonable. Such a test may alsobe applied in a case where by reason of a statute the life and liberty ofa citizen is put in jeopardy. This Court since its inception apart from afew cases where the legislation was found to be ex facie whollyunreasonable proceeded on the doctrine that constitutionality of astatute is to be presumed and the burden to prove contra is on himwho asserts the same.”

“210. Learned counsel Shri Sushil Kumar Jain contended that theclassification of OBCs was not properly done and it is not clear as to whosebenefit the legislation itself is made, therefore, it is a suspect legislation. Thiscontention cannot be accepted. We are of the view that the challenge of Act 5of 2007 on the ground that it does not stand the “strict scrutiny” test and therewas no “compelling State necessity” to enact this legislation cannot beaccepted.

58. In the said decision, a Constitution Bench of the Apex Court, while consideringthe validity of the Central Educational Institutions (Reservation in Admission) Act,2006, has categorically held that the strict scrutiny test or the intermediate scrutinytest applicable in the United States of America cannot be applied in the cases ofreservation in India and such a test should not be applied in Indian Courts. In viewof the above observations, the principles of strict scrutiny standard and intermediatelevel review standard as laid down in Archana Reddy’s case cannot be madeapplicable to the cases like the instant ones.

59. The B C Commission started functioning as soon as it was directed by theGovernment and the material on record furnished before us go to show that thecommission has collected data within a short span of 4 days. The record furthershows that the commission has followed Mr. Krishnan’s report to a larger extent inverbatim and the report of Anthropological survey to come to a conclusion thatparticular group of ‘Muslims’ can be classified as ‘backward class’. That apartthough the process of collection of data, compilation of the survey material anddiscussion on the collected material was completed by 29.6.2007 (27.6.2007 asstated in the report), the Commission had submitted its report on 2.7.2007, which isabout 206 pages, within a span of two days. As the B C Commission has acted inhasty manner without any scientific survey, I am of the opinion that the datacollected and the material collected is not sufficient for the Government to come tothe conclusion that specific classes of Muslims can be classified as backward classfor the purpose of Articles 15(4),15(5) and 16(4) of the Constitution of India. In viewof the fact that the data collected by the B C Commission is not the study whichshould essentially be an exploratory analysis of data on the implementation ofreservation policies. I am also of the opinion that to have a deeper understanding ofthe phenomenon, the multivariate analysis is required. In the absence of analysis ofdata, there is no need to discuss about exclusion of creamy layer from the saidclass by the Government.

60. The State Government has not placed any material before this Court that forignoring the similarly placed group of persons belonging to same class and thereasons for treating the equals as unequals by enacting such legislation. Theburden lies on the State Government to prove that it has sufficient material to havethe subjective satisfaction to enact the particular enactment. But the material whichhas been collected by the B C Commission cannot found place for the subjectivesatisfaction of the State Government.

61. In Ashoka Kumar Thakur’s case (supra 2), the Supreme Court held asfollows:

Per Balakrishnan, C.J, at paras 157, 158 and 159, 162, 164 and 225

“157. In India, caste, in a socio-organizational manner would mean that itis not characterized merely by the physical or occupationalcharacteristics of the individuals who make it up; rather, it ischaracterized by its codes and its close-knit social controls. In the caseof classes, however, there may not exist such close-knit unit socialcontrols, and there may exist great disparity in occupationalcharacteristics.

158. A social class is therefore a homogeneous unit, from the point ofview of status and mutual recognition; whereas a caste is ahomogeneous unit from the point of view of common ancestry, religiousrites and strict organizational control. Thus the manner in which thecaste is closed both in the organizational and biological sense causes itto differ from social class. Moreover, its emphasis upon ritual andregulations pertaining to cleanliness and purity differs radically from thesecular nature and informality of social class rules. In a social class, theexclusiveness would be based primarily on status. Social classes dividehomogeneous populations into layers of prestige and esteem, and themembers of each layer are able to circulate freely with it.

159. In a caste, however, the social distance between members is due tothe fact that they belong to entirely different organizations. I may be said,therefore, that a caste is a horizontal division and a class, a verticaldivision.”

162. A plea was raised by the respondent-State that categorization ofScheduled Castes could be justified by applying the "creamy layer" testas used in Indra Sawhney's case (supra) which was specificallyrejected in paragraph 96 of the E.V. Chinnaiah's case (supra). It isobserved:

But we must state that whenever such a situation arises in respect ofScheduled Caste, it will be Parliament alone to take the necessarylegislative steps in terms of Clause (2) of Article 341 of the Constitution.The States concededly do not have the legislative competence therefor.

164. Based on the Ninety-Third Constitutional Amendment Act, Act 5 of2007 has been enacted. According to the petitioner's Counsel, this is a"suspect legislation" and therefore, it is to be subjected to "strict scrutiny"as laid by the United States Supreme Court and only by passing this testof "strict scrutiny", such legislation could be put into practice.

225. On 17th November, 1949, the Constituent Assembly began the thirdreading of the Constitution Bill. While replying to the debate, Dr.Ambedkar stated:

This anxiety is deepened by the realization of the fact that inaddition to our old enemies in the form of castes and creeds weare going to have many political parties with diverse andopposing political creeds. Will Indians place the country abovetheir creed or will they place creed above country? I do not know.But this much is certain that if the parties place creed abovecountry, our independence will be put in jeopardy a second timeand probably be lost forever. This eventuality we must all

resolutely guard against. We must be determined to defend ourindependence with the last drop of our blood. (See: CAD on 25th

November, 1949 pp 977-978)”

Per Pasayat and Thakker, JJ at para 328:

“328. Classifications on the basis of castes in the long run has tendencyof inherently becoming pernicious. Therefore, the test of reasonablenesshas to apply. When the object is elimination of castes and notperpetuation to achieve the goal of casteless society and a society freefrom discrimination of caste, judicial review within permissible limits isnot ruled out. But at the same time compelling State interest can beconsidered while assessing backwardness. The impact of poverty onbackwardness cannot be lost sight of. Economic liberation and freedomare also important.”

Per Raveendran, J at paras 650 and 664:

“650. Failure to exclude the “creamy layer” from the benefits ofreservation would render the reservation for Other Backward Classesunder Act 5 of 2007 unconstitutional; and Act 5 of 2007 providing forreservation for Other Backward Classes will however be valid if thedefinition of “Other Backward Classes” is clarified to the effect that if theidentification of Other Backward Classes is with reference to any casteconsidered as socially and economically backward, “creamy layer” ofsuch caste should be excluded.

664. A caste can be identified to be socially and economicallybackward, only when the creamy layer is removed from the caste and acompact class emerges which can be identified as a socially andeducationally backward class. Thus, the determination is not by firstidentifying a caste as a socially and educationally backward class and,thereafter, to remove or exclude the creamy layer for the purpose ofbestowing the benefits flowing to such class. On the other hand, untiland unless the creamy layer is removed from a caste, there is nocompact class which can be termed as socially and educationallybackward class at all. Thus, while the process of identifying socially andeducationally backward class can conveniently start with a socially andeducationally backward caste, removing the creamy layer therefromresults in the emergence of compact class which can be termed as asocially and educationally backward class. If the creamy layer is notexcluded the benefit of reservation will be appropriated by suchadvanced sections.”

Per Bhandari, J at para 590, 597 and 637:

“590. Economic criteria must include occupation and land holdingsbecause income alone is insufficient. To decrease the likelihood that theundeserving evade identification, it is wise to employ more than onecriterion.

597. The National Commission for Backward Classes aside, I have setout to eventually install a system that only takes cognizance of economiccriteria. Using purely economic criteria would lighten the identificationload, as ascertaining caste would no longer be required. Respondentsand others level a common criticism against the exclusive use ofeconomic criteria. Most of the country is poor. Thus, too many peoplewould be eligible for the benefit. This is only a problem if you hand outreservations based on the group's proportion of the total population.Such a reservation would be excessively unreasonable and would likelyviolate the Balaji cap of 50% [see M.R. Balaji and Ors. v. State ofMysore (1963) Supp (1) SCR 439]. If economic reservation were limitedto a reasonable number, it could be upheld.

637. Sawhney I compels me to conclude that use of caste is valid. It issaid that if reservation in education is to stay, it should adhere to a basictenet of Secularism: it should not take caste into account. As long ascaste is a criterion, we will never achieve a casteless society.Exclusively economic criteria should be used. I urge the Governmentthat for a period of ten years caste and other factors such asoccupation/income/property holdings or similar measures of economicpower may be taken into consideration and thereafter only economiccriteria should prevail; otherwise we would not be able to achieve ourconstitutional goal of casteless and classless India.

I n ASHOK KUMAR THAKUR v. UNION OF INDIA21 , his lordshipBalakrishnan, C.J. has also observed as follows:

“The amendment to Article 15 by inserting Article15(5) and the new Act (Act 5 of 2007) are to be viewedin the background of these constitutional provisions. Itmay also be recalled that the Preamble to theConstitution and the Directive Principles of State Policygive a positive mandate to the State and the State isobliged to remove inequalities and backwardness fromsociety. While considering the constitutionality of asocial justice legislation, it is worthwhile to note theobjectives which have been incorporated by theConstitution makers in the Preamble of the Constitutionand how they are sought to be secured by enactingfundamental rights in Part III and Directives Principles ofState Policy in Part IV of the Constitution. TheFundamental Rights represent the civil and politicalrights and the Directive Principles embody social andeconomic rights. Together they are intended to carry outthe objectives set out in the Preamble of theConstitution.”

Under the above circumstances, in view of the observations made by theApex Court in Ashok Kumar Thakur’s case, it has to be observed that theprinciples laid down by the United States Supreme Court for affirmative actionsuch as suspect legislation, strict scrutiny and compelling State necessity arenot at all applicable to the Indian Courts.

62. Articles 15(4) & 16(4) enable the State to have policies as necessary topromote educational advancement of socially backward sections of thesociety. The first amendment to the constitution brought the clarification thatsocial backwardness mentioned in clause (4) of Article 15 includes economicbackwardness also. Catena of decisions rendered by High courts andSupreme Court on the issue of reservations have interpreted that the castealone cannot be considered as an “indicator” as social backwardness. It isalso maintained that the level of income of the family should also beconsidered as necessary criteria for determining the social backwardness ofdifferent sections of the people. Article 15(4) of the constitution authorizes theState to make special provision for advancement of socially and educationallybackward citizens and Scheduled Castes and Scheduled Tribes. Article 16(4)authorizes the State Government to make reservations in favour of sociallyand educationally backward classes of citizens, who are inadequatelyrepresented in the services.

63. In this regard, it is necessary to refer the decision of Janki Prasad vs., State ofJ & K22, wherein it was observed that

“21. Article 15(4) speaks about socially and educationally backward classesof citizens” while Article 16(4) speaks only of “ any backward class ofcitizens”. However, it is now settled that the expression ‘backward class ofcitizens” in Article 16(4) means the same thing as the expression “anysocially and educationally backward class of citizens” in Article 15 (4). Inorder to qualify for being called a ‘backward class citizen’ he must be amember of a socially and educationally backward class. It is social andeducational backwardness of a class which is material for the purposes ofboth Articles 15(4) and 16(4).”

“22. xxx Reservation may be adopted to advance the interests ofweaker sections of society, but in doing so, care must be taken to seethat deserving and qualified candidates are not excluded fromadmission to higher educational institutions.. xxxx”

64. It is well settled law that there is no specific law or other statutoryinstrument prescribing the method in identification of only classes or groupingsor communities. Effort should be made by the State to consider all theavailable groups, sections and classes of society in whichever order it is. If, inany case, a particular caste or class is wrongly designated or not designatedas a backward class it can always be questioned before the Court of law andthe Courts under Article 226 of the Constitution can examine as to whether aparticular group is not designated as a backward class correctly or not. Therequirement of the State is that a rational and scientific criteria must be evolvedfor determining backwardness and that criteria must be applied to find outwhether any group or class of people qualify for classifying them as backwardclasses. If the criteria evolved and applied for identification of the backward

classes is found to be improper and invalid, then the classification based onthat criteria will have to be held to be inconsistent with the requirements ofArticles 15(4) & 16(4). It is also well settled that the determination ofbackwardness and the process of identification is neither a subjectiveexercises nor a matter of subjective satisfaction. But it is an objective one. TheCommission which is entrusted with the task of identification is required toevolve objective social and other considerations and apply the same beforeany group or class of citizens can be treated as backward. If the Bodyentrusted with the said job, has not discharged its duty in collecting sufficientmaterial, then the conclusions arrived at can be tested on the touchstone ofArticle 14 apart from other grounds.

65. Keeping in view the above principles, this court will examine as to whetherthe impugned Act enacted by the State is valid.

66. All the counsel who have argued before this Court brought to our notice aboutthe violation of the principles laid down in Archana Reddy’s case on the ground thatthe B.C. Commission had to pre-publish the criteria data relied upon foridentification of backward class before publication as laid down in Archana Reddy’scase.

67. It is relevant to state that the Commission in pursuance of the said letters dated17.4.07 and 11-6-07 addressed by the Govt. undertook the exercise of identificationwhich started the public hearing on 23-06-2007 to 26-06-2007. The schedule wasas under:

Date Time District Venue

23-06-2007 10.00 AM Kadapa Shabha Bhavan

24-06-2007 10.00 AM Kurnool Zilla Parishad

24-06-2007 4-00 pm Mahaboobnagar Revenue Hall

25-06-2007 10-00 AM Guntur Collectorate

25-06-2007 04-00 PM Prakasam Prakasa Bhavan

26-06-2007 11-00 AM Hyderabad Collectorate

68. The Commission has relied upon the analysis report and recommendations ofSri P.S. Krishnan and also the table contending the details of percentage ofMuslims selected in various entrance examinations, details of percentage ofMuslims selected in various recruitments and Statement showing the number ofemployees belonging to Muslim Community and certain occupational groupsworking in the State Government and its Public Undertakings based on employeescensus conducted by A.P.B.C. Commission in 2001.

69. The Survey and analysis was conducted on the communities of Faqir/FhakirBudbudki, Borewale, Dhobi Muslim / Muslim Dhobi/Dbohi Musalman,Chakketakare, Atchukatlavandlu (Muslims), Guddi Eluguvallu, Siddi, Garadi /Garadi Muslim, Attar Saibulu, Gosangi Muslim, Shaik/Sheikh, Hajam / Nai / Navid,Shia Imami Ismaili / Khoja, Arab, Bohara, Syed / Saiyed / Sayyad / Mushaik ,Moghal / Moghal, Pathan, Navayat, Irani, Kutchi Memon.

70. Having conducted the enquiry, the recommendations of the Commission wasfound at Chapter-VI and observed as follows;

“(1) a fifth group titled “Socially and Educationally Backward Classes ofMuslims” under the Head of ‘E’ be created in the Backward Class list.

(2) The following specific Classes of Muslims be included under this group‘E’ of BCs in addition to ‘A,B,C & D’ already existing for reservation foradmission into educational institutions and in appointment to posts andvacancies in the services under the state for the purpose of articles 15(4) and16(4) of the Constitution of India.

1) Achchukattalavandlu, singali, Singamvallu, Achchupanivallu,Achchukattuvaru, Achukatlavandlu

2) Attar Saibulu, Attarollu

3) Dhobi Muslim/Muslim Dhobi/Dhobi Musalman, Turka Chakla orTurka Sakala, Turaka Chakali, Tulukka Vannan, Tsakalas, Sakalas orChakalas, Muslim Rajakas

4) Faqui, Fhakir Budbudki, Ghanti Fhakir, Ghanta Fhakirlu, TurakaBudbudiki, Darvesh, Fakeer

5) Garadi Muslim, Garadi Saibulu, Pamulavallu, Kani-Kattuvallu,Garadollu, Garadiga.

6) Gosangi Muslim, Phakeer, Sayebulu Guddi Eluguvallu, EluguBantuvallu, Musalaman Keelu Gurralavallu

8) Hajam, Nai, Nai Muslim, Navid.

9) Labbi, Labbai, Labbon, Labba

10) Pakeerla, Borewale, Deera Phakirlu, Bonthala

11) Qureshi, Kureshi/Khureshi, Khasab, Marati Khasab, Muslim

Katika, Khatik Muslim

12) Shaik/Sheikh

13) Siddi, Yaba, Habshi, Jasi

14) Turka Kasha, Kakkukote Zinka Saibulu, Chakkitakanevale,Terugadu Gontalavaru, Thirugatigantla, Rollaku Kakku,Kottevaru,Pattar Phodulu, Chakketakare, Thuraka Kasha

15) Other Muslim groups excluding

Syed, Saiyed, Sayyad, Mushaik;

Mughal, Moghal;

Phatans;

Irani;

Arab;

Bohara, Bohra;

Shia Imami Ismaili, Khoja;

Cutchi-Memon;

Jamayat;

Navayat,

and all the synonyms and sub-groups of the excluded groups;

and except those who have been already included in the State list ofBackward Classes.

3. That 4% reservation be provided in education and public employment tothe classes of Muslims identified in item 2 above.

4. The principle of exclusion of socially advanced persons / sections (creamylayer) already laid down by the State Government will automatically andnaturally apply to the classes now recommended for inclusion.”

71. The material placed before this Court go to show that the Commission afterreceipt of letter from the Principal Secretary to Government has chosen to conductthe survey from 23-06-2007 to 26-06-2007 in places like Kadapa, Kurnool,Mahaboobnagar, Guntur, Prakasam, Hyderabad.

72. As seen from the above, the facts themselves speak that the commission hasnot toured the entire State in extenso and it only touched some parts of the State (6Districts only) and came to the conclusion that particular classes of Muslims aresocially and educationally backward. But no explanation is forthcoming from theCommission for conducting such a short survey in a hurried manner. The report ofthe Commission should, therefore, be held to be mechanical and perfunctory innature and there was no independent survey and proper application of mind.

73. The Commission in its report recommended for inclusion of certain sects ofMuslims as a separate group under group ‘E’. The State Government, withoutsufficient material, has included a particular group of citizens under group ‘E’ but noexplanation is forthcoming from the State Government with regard to the non-inclusion of other classes of citizens who are similarly situated to that of the presentgroup of Muslims. The fact remains that neither the unofficial respondents nor theState Government has placed any material before this Court to show that the datacollected is sufficient for coming to such a conclusion. Even though an argument isadvanced by the learned Advocate General that sample survey can be conductedand the Courts have no power to have a judicial scrutiny over such acts of the StateGovernment, but in this case, as stated supra, it is the fact that that the Commissionhas conducted the survey within a span of 9 days (conducted hearings on 9 days)and submitted its report by making the similar observations as were made inKrishnan’s report and ASI report, which clearly shows that the Commission hasutterly failed to exercise it’s mind, independently, on the reference made to it by theGovernment. Therefore, it can be said that the Commission had not acted in aproper manner and the report of the Commission could not have been based as apiece of evidence for the State to have ‘objective satisfaction’.

74. No doubt Article 15(5) of the Constitution makes it obligatory on the part of theGovernment for making a special provision, by law, for the advancement of anysocially and educationally backward classes of citizens or for the Scheduled Castesor the Scheduled Tribes in so far as such special provisions relate to theiradmission to educational institutions including private educational institutions,whether aided or unaided by the State, and Article 19(1)(g) shall not prevent theState for such act. But, the question remains that whether backwardness can berestricted only to a group of persons when there are so many similarly situatedpersons in the same religion who claim themselves as also equally socially andeducationally backward by making representation. There is no material placedbefore this Court by the State Government that those persons have also beenconsidered and they cannot be termed as educationally and socially backward. Byway of impugned enactment, the equals are being treated as unequals. But theCourts never allowed such a legislation to be acted upon in the field of reservationas it is a clear case of discrimination violating the provisions of equality clauseenshrined under Art. 14 of the Constitution.

75. However, it is not the case where the competency of State Government inenacting a particular legislation is questioned, but when the State Government actsin violation of the provisions of the Constitution, often, Courts will come to therescue of the affected persons and the Governments will never be allowed to treatequals as unequals. Under the above circumstances, it is to be held that the aboveenactment, which is challenged in these writ petitions, is a discriminatory one innature and also violative of Article 14 of the Constitution.

76. It is also well known fact that Art. 15(5) which was brought in to by theConstitution( First Amendment) Act 1951, was upheld by the Apex Court in AshokaKumar Thakur vs. Union of India23, which is a famous case known as ‘OBCreservation case’. The present Act No.26 of 2007 is impugned in the present writpetitions on the ground that certain classes of Muslims have been notified asbackward classes, which itself is a religious specific and that would induce peopleof other castes to get converted into Islam. Even on earlier occasion, when theordinance was made, that was struck down in Archana Reddy as entire class of

Muslims has been classified as socially and educationally backward.

77. In this case, the competency of the State Government to enact the impugned Actis not questioned seriously, but, however, whether the State Government has actedwithin its parameters and taking into consideration the argument advanced onbehalf of the petitioners that the State Government has not followed the guidelinesissued in Archana Reddy, it has to be looked into whether the enactmentwithstands its validity in law and whether such legislation is valid in the eye of law.

78. It was observed by the Apex Court in Ashoka Kumar Thakur’s case that nodoubt the Government has power to enact particular law for educationally backwardclasses under Article 15(4), however, there is a distinction between exercise ofpower and the manner of it’s exercise.

79. It has been pointed out before this Court that the Article 15(4) has to be read assupplement in conjunction with the other Article 29(2). The argument advanced bythe State Government that the Article 15(4) has to be read as supplement to Article29(2) which would enable that no citizen shall be denied admission into anyeducational institution maintained by the State or receiving aid out of State funds ongrounds only of religion, race, caste, language or any of them. Article 15(4) and16(4) of the Constitution give executive and legislature broad discretion in theirapplication, wherein judicial review is not entirely excluded.

80. It is not out of place to reiterate that the courts have the power to scrutinize thegovernment’s designation of backward classes to see that the beneficiaries areindeed the backward classes. The courts may also examine the Governmentschemes to see that they work in favour of the intended beneficiaries and not to theirdetriment and that the extent or method of operation of the schemes does not undulyimpair the rights of the others.

81 When the State Government has enacted reservation on earlier occasion, thisCourt in T. Muralidhar Rao has struck down such reservation on the ground thatthe matter was not referred to B.C. Commission as once the state intends to providereservations to the socially and educationally backward classes of citizens, thematter, has to be referred to B.C. Commission.

82. In view of the above observations, it has been pointed out that dependence ofthe Commission on Mr. Krishnan's report for coming to conclusion in recommendingfor inclusion of certain classes of Muslims as backward class citizens in group ‘E’was illegal and in contravention of the directions of the Apex Court in IndraSawhney I and of the High Court in T. Muralidhar Rao as the report of Mr.P.S.Krishnan was wholly irrelevant and offends Articles 15 (4), 16 (4). There was no realapplication of the mind by the Commission.

83. In view of the law laid down in Muralidhar Rao and also looking at theprovisions of A.P. Backward Class commission Act 1993, the State Government

has got power to make a reference to Commission for identifying backward classesin pursuance of the provisions under Article 15(5) of the Constitution so as to enableit to make a law for the advancement of socially and educationally backwardclasses of citizens. In my view, it is for the Government to lay down criteria as heldby B. Sudershan Reddy, J, in the said case and Commission has to call forobjections before finalization of the list and even complaints to examine and makerecommendations in relation to backward classes that may be referred to it underthe provisions of Section 9(1) of the Act, 1993 read with Section 9(2) of the Act,1993. Further, the criteria adopted by the State Government cannot be acceptedunless supported by other relative considerations. I am not satisfied that the StateGovernment has succeeded in bringing the case within Article 15(4) of theConstitution. The material before us is woefully inadequate and fails to sufficientlysupport the validity of the classification. I am of the opinion that the impugnedenactment made by the State dated 13-8-2007 must be declared invalid.

84. The principles laid down in Archana Reddy’s case are mainly with reference tothe publication of criteria calling for the objections before the identification of thebackward classes by the Backward Class Commission. They have to be scrutinizedwith reference to the provisions of the A.P. Backward Classes Commission Act andalso with reference to the observations made in Indra Sahwaney-I case.

85. So far as identification of backward classes of citizens is concerned, it has beenobserved in Indra Sahwaney.I cae that the method varies from State to State,region to region and from rural to urban. While dealing with the classes, wherecaste system is not prevailed, Justice Jeevan Reddy has observed that “each andevery situation cannot be visualised and answered. That must be left to theappropriate authorities appointed to identify.”

86. The Supreme Court has taken the view in STATE OF A.P. v. P. SAGAR24 thatthe backwardness of the backward class under Article 16(4) being social andeducational, must be similar to the backwardness from which the Scheduled Castesand the Scheduled Tribes suffer.

87. No doubt the State of Andhra Pradesh has already included certain groupshaving the synonymous names in Muslim community in the backward class list ingroup-A and also in group-B. It is contended that in view of the synonymous namesthe reservation cannot be made to a particular group of Muslims under the guise ofthe impugned enactment of the State Government. It is also contended that asalready certain reservations have been provided for some classes of Muslims ingroup-A and Group-B, there cannot be any further reservation under special groupunder group-E by virtue of the special enactment. This contention cannot be goneinto in view of the aforementioned discussion that the State has no sufficientmaterial before enacting the impugned Act.

88. A perusal of the record read with the arguments of different counsel for the

parties would go to show that the commission has not followed the procedureknown to law and submitted the report in a hasty manner.

89. In view of the above discussion, the argument of the petitioners that thereference itself is bad cannot be agreed upon. But, however, looking at theprocedure adopted by the Commission to arrive at the conclusion and forconducting the survey from 23-06-2007 to 26-06-2007 i.e. within a short span oftime, in limited towns of Andhra Pradesh i.e., Kadapa, Kurnool, Mahaboobnagar,Guntur, Prakasam and Hyderabad, 6 Districts out of 23 districts, leaving other partsof the towns in the State, it has to be observed that it is highly impossible for aCommission which has to identify the group of backward classes with reference totheir number in the population. When the procedure adopted by the StatutoryCommission in conducting the survey for identification of the socially andeducationally backward classes among Muslim Community as required by the StateGovernment, the question that arises for consideration is whether is it possible forthe commission to identify the social status, educational status, employment,economic status of the Community, as stated above, within a short span of four daysbeginning from 23-06-2007 to 26-06-2007?. The straight answer for the saidquestion is ‘No’. The Commission ought to have taken proper care and caution inidentifying backward classes among Muslims, as the object of the classificationis ‘to help to those who are at the bottom rungs of the ladder in social,economic and educational development’. The backward classes have to bedrawn from all weaker sections of the citizens irrespective of any particular religion.Further, the Court can insist upon the State to satisfy itself about the social andeducational backward class of the groups included in the group ‘E’. Such list shouldbe based upon the report of the commission suggesting suitable criteria for thedeserving classes. In the present case, the criteria suggested by the Commissionare not sufficient for the State to come to such conclusion for extending the benefitto the deserving classes.

90. In Naghpur Improvement Trust and another vs, Vithal Rao25, the apex Courtwhile dealing with Article 14 of the Constitution with regard to classification for thepurpose of legislation, at para 23 observed as follows:

“23. It is now well-settled that the State can make a reasonable classificationfor the purpose of legislation. It is equally well-settled that the classification inorder to be reasonable must satisfy two tests: (i) the classification must befounded on intelligible differentia and (ii) the differentia must have a rationalrelation with the object sought to be achieved by the legislation in question.In this connection it must be borne in mind that the object itself should belawful. The object itself cannot be discriminatory, for otherwise, for instance,if the object is to discriminate against one section of the minority thediscrimination cannot be justified on the ground that there is a reasonableclassification because it has rational relation to the object sought to beachieved”.

91. Turning to the present case, there is no material placed before this court by theState Government to prove the valid classification which has got nexus with itspolicy and object to be achieved. The material is not sufficient to show that such aclassification is based on intelligible differentia and the basis has rational nexuswith the policy and object to be achieved under the statute. In view of the above, the

impugned Act has to be struck down as violative of Art.14 of the Constitution beingirrational and illegal.

92. Further, the standards applied to the data by the Commission are equallyapplicable when the Government determines to provide benefit of such an inquiry.The State should produce material before the Court to show that there was a properinquiry and relevant criteria adopted and the decision is reasonable, but mereexpression is not sufficient. In the absence of any data with regard to socialbackwardness or educational backwardness, the action of the State Government inproviding reservation to socially, educationally backward classes among Muslimshave to be struck down as the data lacks the criteria of the material for determiningsocial backwardness and criteria for educational backwardness. The Commissionhas utterly failed to have a statewide social and economic survey combined witheducational survey and also failed in conducting test of income and occupation forselecting the individuals who compose a backward class. In the absence of criteriabasing on the inaccurate data, it can be said that the Commission has notformulated any standards for the application of income or occupation tests and alsoin respect of the educational backwardness. Further there is no correct datafurnished either by the State Government or by the B.C Commission that whether inthe opinion of the Government, the present identified classes of Muslims areinadequately represented in the services of the State. Even in the counter filed onbehalf of State Government with reference to the state average in determining theeducational backwardness, it did not disclose the group wise percentage of literacy.On the basis of meager data collected by the Commission for the assessment ofeducational/employment backwardness, it can be said that the data isunsatisfactory. It is un-understandable as to how the Commission could prepare areport within two days and it shows that the Commission has acted in haste andwithout proper application of mind. As the B.C Commission has acted in a hastymanner and without any scientific survey, I am of the opinion that the data collectedis not sufficient for the Government to come to the conclusion that specific classes ofMuslims can be classified as ‘backward class’ for the purpose of Articles 15(5) and16(4) of the Constitution of India. The Commission has not proceeded on correctlines to assess the social and educational backwardness as indicated in othercases or has followed any criteria for such assessment. In the absence of any suchmaterial, it has to be held that the State Government has utterly failed to dischargeits onus of proof to establish that the reservations are for socially and educationallybackward classes of citizens and that the enactment is based on sufficient materialto support the classification. If the court perceives that the identified classes exist,then the Court will uphold such law for the purpose of doing social justice, but in theinstant case the exercise of identifying specific group of backward classes is notrational; therefore the Court cannot uphold the law made by the State. The samehas to be struck down for want of sufficient material or appropriate data.

CONCLUSIONS

93. For the above said reasons, it has to be held:

(1) the State Government has got the power to refer to the State Commissionfor identifying backward classes to provide reservation to socially andeducationally backward classes under the provisions of the said Act;

(2) the State has got power for making any special provision, by enactment,

for the advancement of any socially and educationally backward classes ofcitizens relating to their admission to educational institutions and publicemployment;

(3) in the present case the investigation made by the Statutory Commissionis not sufficient, and the report submitted by it is not based on real facts, dataor analysis and is without any proper survey. The Commission limited its’survey to 6 Districts only (within 3 days from 23-6-2007 to 26-6-2007) leavingthe other parts of the State;

(4) the report should be held to be mechanical, perfunctory in nature and iswithout application of mind as the Commission followed the report of Mr P.S.Krishnan in verbatim.

(5) The principle of strict scrutiny and intermediary scrutiny as laid down inArchana Reddy’s case is not in conformity with the guidelines framed inIndra Sawhney & Ashok Kumar Thakur’s case;

(6) the impugned Act No.26 of 2007, dated 13-8-2007, which is based on thesaid report of the Commission is invalid, unconstitutional, being violative ofArticles 14, 15(4), 15(5) and 16(4);

(7) the writ petitions are allowed to the above extent accordingly.

The reference is answered accordingly.

JUSTICE T MEENA KUMARI

8-2-2010

1 2005(6) ALD 582 (LB)

2 1992 Supp.(3) SCC 217

3 2004(6) ALD 1

4 2007(4)SCC 1

5 (1973) 4 SCC 225

6 AIR 1951 SC 226

7 AIR 1958 SC 731

8 (1984) 3 SCC 654

9 (1986) 2 SCC 249

10 (1976) 2 SCC 310

11 (1993) 1 SCC 645

12 AIR 1968 SC 1379

13 (1972) 1 SCC 660

14 AIR 1963 SC 649

15 1983 SC 130

16 (2003) 11 SCC 146

17 AIR 1987 AP 53

18 (1976) 3 SCC 730: (1977) 1 SCR 194

19 1985 Supp SCC 714: 1985 Supp 1 SCR 352

20 (2008)6 SCC 1

21 2008(6) SCC 1

22 AIR 1973 SC 930

23 (2008) 6 SCC 1

24 (1968) 3 SCR 595: AIR 1968 SC 1379

25 AIR 1973 SC 689

ORDER : (Per Sri Justice B Prakash Rao,)

I have gone through the Judgment of Hon’ble Sri Anil R. Dave, The Chief Justice

along with Sri Justice A.Gopal Reddy, Sri Justice V Eshwaraiah and

Sri Justice Goda Raghuram, apart of Smt Justice T Meenakumari, however,

I deem more expedient to give my opinion independently on the questions arising.

I

At the start, these cases, came up before us on a reference, from a larger

Bench of five Judges as per orders dated 24.1.2008, which reads as under;

“During the course of arguments, leaned counsel for the petitionerswhile pointing out to certain observations made by a coordinate Bench offive judges of this Court with regard to identification of Muslim Communityas backward class in the case of B Archana Reddy and Others Vs State

of A P & Others[37] sought to contend that the B.C. Commission did notevolve any criteria for identifying social backwardness. It was theircontention that the specific direction/criteria as pointed out in later largerbench has not been adhered to. He relied on paragraphs 114, 279, 293, 378and 379 of the said judgment which read thus;

114. The Commission has neither found nor recorded that self-employment in petty business, occupations like rickshaw pulling, push carttrade, agricultural labour, marginal land ownership, mal-nutrition,

inaccessibility to medical facility, lower life expectancy, engagement asunskilled labour, masons or drivers, pursuit of professions or occupationssuch as cycle repairing or vulcanizing, engagement of women and childrenin beedi-rolling, are circumstances either peculiar to the Muslim communityor that professing the faith of Islam (definition of ‘Muslims’ in Sec.2(c) of theOrdinance) and these (occupational, professional, extreme poverty andwant) circumstances have a causal relationship. In the absence of a causalnexus between the Islam faith aggregate and the pursuit of certainprofessions, trades or humble economic circumstances; the occupationand/or the means test, provides neither a legal nor a rational and logicalbasis for the conclusion that all Muslims are socially backward becausesome or many of them are in dire economic straits.

279.. Transparency in governance is exhortation of the day. In thiscontext, a little elaboration is necessary. Doctrine of rule of law in legal andpolitical philosophy means many things for many people. The universaltheme, however, is that the constitutional governance by rule of law ispreferable to governance by a few persons. Democracy presupposespeoples’ rule by law or rule of law through people. The broad principle of ruleof law contemplates that (i) all laws should be prospective, open and clear,(ii) laws should be stable, (iii) making of particular laws should be guided bystable and general rules, (iv) the principles of natural justice must beobserved, and (v) there should be a system of implementation of lawsguaranteeing the independence of judiciary duly conferring on it the power toreview public law functions. Another important principle of rule of law is thatthe rulers must know the rules to the ruled. All persons must know what arethe laws, rules and regulations by which they will be governed. This is moreimportant in a democratic polity where an independent judiciary, lords overthe exercise of legislative, judicial and administrative powers by otherorgans of the State, by reason of doctrine of judicial review. Transparency inpublic administration and constitutional governance is therefore a part of ruleof law and indeed it is inseparable adjutant of ‘rule of law’. This Court maymake reference to Jaisinghani and Merkur Island Shipping Corporation v.

Laughton[38][103] and the decision of the Supreme Court in BALCO

Employes’ Union (Regd.) v. Union of India[39][104].

293.. In an enquiry of the nature undertaken by B.C.Commission,mere issue of notification inviting objections and conducting public hearingsat different places would only satisfy the principles of fairness to someextent. In the absence of notifying the objectors of criteria prior to suchhearings and furnish the material to such objectors prior to conducting publichearings, the enquiry conducted by the B.C.Commission cannot be calledfair. The very purpose of issuing notification inviting objections andconducting public hearings, would be defeated if the criteria is not decidedprior to undertaking, the collection of data and putting the objectors onnotice. We accordingly hold against the State.

378..Fourthly, while determining social backwardness of a class of citizens,en expert body like B.C.Commission has to necessarily evolve absolutely

relevant criteria for the purpose of caste test, occupation test and meanstest. Wherever social backwardness is due to a class of people being bornin a homogenous endogamous group called caste with common traits andrigid customs and social rules, the caste test itself lead to an inference thatthe class/caste is socially backward. If the occupation of majority of a classof citizens is considered inferior and unremunerative, and such class ofpeople is considered lowly placed in the society, it would ordinarily satisfythe test of social backwardness. The means test presupposes that byreason of birth in a class of people, historically and traditionally the entireclass suffers from perennial poverty, in which case, the means test wouldenable the determination of social backwardness. The B.C.Commission didnot evolve any criteria for identifying social backwardness and did not applythe three tests in a scientific and objective manner.

379.. Fifthly, the B.C.Commission at the stage of collectingpreliminary data, evolving criteria and conducting public hearings for thepurpose of hearing objections from the public, did not take such steps whichcan be called transparent and fair. Though, the nature of enquiry byB.C.Commission cannot be strictly treated as quasi-judicial, but still whileundertaking an exercise for identification of backward class of citizens, theCommission is legally bound to be fair and transparent and afford all suchopportunity to objectors and proponents for effective representation beforethe Commission. The prior non-publication of criteria and data collected bythe B.C.Commission renders the report of the B.C.Commission illegal beingcontrary to provisions of B.C.Commission Act and principles of fairness.”

In view of the aforesaid judgment emanated from a coordinate benchof five judges of this Court and in the absence of any provision in the statutefor publication of the criteria whether this Court can supplant the provisionsof the Act and the Rules by making publication mandatory as per theobservations as contained in paras stated supra and other observationsmade by the coordinate bench, are contrary to the observations made bythe Supreme Court in Indra Sawhney Vs Union of India, where it was leftopen for the concerned authorities to lay down the criteria, apart fromcontrary to principles laid down in regard to strict scrutiny approach, as laidin Sauraabh Chandra Vs Union of India and the principles laid down in otherdecisions of the Apex Court.

After hearing the counsel on either side appearing on behalf ofrespondents, we are of the view that the matters are required to be heardand reconsidered by a 7-Judge bench.

Accordingly, we direct the registry to place these matters before theHon’ble the Chief Justice for passing appropriate orders.”

In view of the above, in my view, this Special Bench of Seven Judges, shall confine

its consideration only to the issues referred and shall have to remit the matter back to the

Five Judges bench for consideration of the case on merits. On the issue of providing

reservation to muslims in the earlier round of litigation, this Court through bench of Five

Judges on two occasions in MURALIDHAR RAO VS. STATE OF A P[40] and in

ARCHANA REDDY VS.STATE OF A. P[41] pronounced its verdict and struck down the

provision. Thereafter, initially by an executive order, subsequently through a legislation,

the State had undertaken its affirmative action once again. The said Act has been

impugned in this batch of writ petitions. This matter has on reference in the process has

come up before Five Judges Bench . In the midst of hearing, apart from other issues, the

question arose, if the findings of the earlier bench of Five Judges in Archana Reddy are

contrary to the findings of the Apex Court. In these circumstances, the bench of Five

Judges realizing the difficulty in going ahead with the hearing in view of the doubts

expressed about the correctness of the findings in Archana Reddy case of a Coordinate

Bench, in its wisdom thought it fit to refer the matter to Special Bench of Seven Judges.

At any rate, the reference order itself would clinch the issue that the scope of

consideration by the Seven Judges bench shall have to be confined only to the issues

referred to and cannot have a final word, not being a Court, with original jurisdiction.

It is explicit to note that though all the counsel argued on merits on all the counts,

and requested this Court to dispose off the main case in its entirety on merits rather than

the question referred, it is to be seen, how far this Court, on such reference, can traverse

beyond. I am conscious of the order at the preliminary stage dated 19.8.2008, on this

Count.

The Apex Court in T A HAMEED VS M VISWANATHAN CASE [42] wherein a

Full Bench of Kerala high Court, in response to a reference made by a Division Bench on a

question of law, proceeded to dispose of on merits, noting that;

" in para 19 of the impugned order the learned full Bench asked

counsel for both the parties to advance arguments on merits also as theproceedings were initiated about a decade back and asked counsel for theparties for disposing of the revision petition itself and accordingly argumentswere heard on merits of the Revision Petition also and Revision petition wasdisposed of by dismissing the same and directing the appellant-tenant tosurrender possession within six months and directing the appellant to file anaffidavit of undertaking to that effect.

On the objection taken against such procedure, the Apex Court, referring to earlier

decision in KESHONATH CASE KHURANA VS UNION OF INDIA[43] on a similar

situation, wherein it was held that;

“THIS Court held that it is obvious that since only the aforesaidquestion of law was referred by the single Judge to the Division Bench, thedivision Bench should have sent the matter back to the Single Judge afterdeciding the question of law referred to them. But instead the Division Benchproceeded to dispose of the second appeal on merits and dismissed it withcosts. This Court further observed that,

"we think that the Division Bench was in error in following thisprocedure. The Division bench ought to have sent the appeal back to thesingle Judge with the answer rendered by them to the question referred bythe single judge and left it to the single Judge to dispose of the secondappeal according to law. "

And same being reiterated in Kerala STATE SCIENCE & TCHNOLOGY

MUSEUM VS RAMBAL CO[44] holding that;

Same view was reiterated by this Court in the case of Kerala StateScience (supra). In that case this Court after referring to earlier decisions inpara 8 held as under:-

"it is fairly well settled that when reference is made on a specificissue either by a learned Single Judge or Division Bench to a larger Bench,i. e. , Division Bench or Full bench or Constitution Bench, as the case maybe, the larger bench cannot adjudicate upon an issue which is not thequestion referred to. "

And then, proceeded to hold that ;

“In the case at hand also, almost an identical situation had taken placethat a reference was made by the learned Division bench of the Kerala HighCourt to the Full bench and the Full Bench after answering the referencewent on to decide the revision petition itself on merits, which the Full Benchhad no jurisdiction to do as the revision petition was not referred to the Full

Bench for decision. Since, only reference was made to the Full bench, theFull Bench should have answered the question referred to it and remitted thematter to the Division Bench for deciding the revision petition on merits.Consequently, we set aside that part of the impugned order dated 31. 1.2003 whereby the Full Bench has dismissed the revision petition filed by theappellant herein.”

From the above, it is seen that in the case of reference, the reference Court should

restrict only to the extent of answering the question referred, but not enter into merits and

dispose off the main case either way. It is apt to note that in the above case, such

argument is sought to be negatived by the Apex Court though the counsel on all sides

agreed and gave consent for such final disposal. However, in view of the candid

observations and findings of the Apex Court, the Seven Judge Bench or Full Bench to

which it has been referred, can safely said that has no jurisdiction to go on the merits,

except the referred questions. It reiterates the principle that the consent would not confer

jurisdiction, where it does not have. Nor, any such approach is valid.

There has been an attempt on some of the sides to have a final say,

on merits, I regret that I cannot accept the mode suggested and adopted by the other

members of this Bench. On the principle, as laid by the Apex Court, no other

authoritative pronouncement contra have been placed on records nor justified on

any other validity sustainable ground. In the absence of any other binding decision

approving other departed course, it has a non-escaping binding precedent under

Article 141 of the Constitution of India.

As far as the orders passed by this Bench at the inception on whereunder it

was explicit to take the course in its entirety on merits, it is only an interlocutory at

the first blush, before the matter was heard from all sides fully and thus does not

come against while considering the correctness of the approach at final stage. It is

well established that any interlocutory aspect would not be a bar nor constitute a

resjudicata. In Arjun Singh Vs Mahindra Kumar (AIR 1964 SC 993) it was held that

the principles of resjudicata are not applicable on interlocutory proceedings or

orders.

Further it is trite to note that there is a clear distinction on the parameters of

jurisdiction and scope between a Court on reference and Courts on regular known

remedies by an original or appeal or revision. Therefore, the judicial propriety at all

its command restrict the boundaries in a reference and bound to answer back to the

Court, which referred. The original powers of which to deal the matter cannot be

usurped or in any way interdicted.

As bound by the dicta of the Apex Court under Article 141 of the Constitution of

India, it would be therefore appropriate to confine consideration to the issues that have

been referred by the bench of the five Judges, after a detailed account, which briefly stated

reads as under;

1. Whether the concept of strict judicial scrutiny in the matter of affirmative

action of the State under equality doctrine as propounded in Archana Reddy

case, is contrary to the dicta laid down by the Apex Court in Sourabh and

other decisions on the subject.

2. Whether the concept of publication of criteria evolved by B.C

Commission, and data collected in that regard in the matter of identification

of socially and educationally backwardness as propounded in Archana

Reddy case is contrary to the dicta laid down in Indira Sawhney case and

also contrary to the provisions of the Act 1993 ?

II

Interesting to note that reservation for Backward Classes in educational institutions

and in public services has been in existence even before the State of Andhra Pradesh had

been formed. The erstwhile Hyderabad State under Nizam had issued G.O.Ms.No.110

dated 30th May, 1953 providing for reservation to backward classes. Similarly, Backward

Classes in the Andhra region in the erstwhile Madras Presidency had such reservation

benefits under similar Orders of the composite State of Madras. After the formation of the

Andhra State on 1st October, 1953, the list maintained by the Composite State of Madras

was continued in the Andhra State with some modifications. When the State of AP was

formed in 1956, it inherited the list of Backward Classes maintained by the former

Government of Hyderabad. The State Government vide G.O.Ms.No.1886 Health dated

21st June 1963 made reservations of seats in Government medical colleges in favour of

these listed backward classes. However in Sri Sukhadev and others Vs. the Government

of Andhra Pradesh (1996 1 An. W.R. 294) this Court struck down the G.O as being

violative of Articles 15 and 29 (2) of the Constitution, since based solely on caste without

applying the criteria propounded by the Supreme Court in Balaji’s case (AIR 1963 SC

649). The Government then scrapped the then existing list of Backward Classes and

issued GO.Ms.No.1880, Education dated 29th July, 1966 listing 112 communities as

backward, making them eligible for certain concessions in regard to scholarships,

admission to professional colleges and reservation of posts in Government services,

which was challenged again in P.Sagar Case on the ground that the list was prepared

solely on the basis of caste and violated the fundamental rights guaranteed to the citizens,

and this Court allowed writ petitions and struck down the reservations made in professional

colleges for the backward classes mentioned in the GO. On appeal, the Supreme Court

upheld the above decision in the State of AP and another Vs. P.Sagar (AIR 1968 SC 1379).

In April, the State Government appointed Backward Classes (Anantaraman)

Commission, which gave its Report in 1970, recommending 92 castes/communities

as backward classes. Thereupon the State Government issued

G.O.No.1793/Education dated September 23, 1970 providing reservation of 25% of

the seats in the MBBS Course for candidates belonging to the backward classes

enumerated in the GO. On challenge in U.S.V. Balram case on the ground that the

classification and reservation of seats was violative of article 14 of the Constitution,

this Court allowed the writ petitions inter alia holding that the enumeration of

Backward Classes and reserving 25% seats in the GO violates Article 15 (1), read

with Article 29 and that the reservation was not saved by Article 15 (4) and held that

proper investigation and collection of data have not been done by the Anantaraman

Commission and it merely enumerated the various persons belonging to a particular

caste as Backward Classes. However, on appeal in State of aP v. U.S.V. Balram

(1972 1 SCC 660) the Supreme Court in its judgment dated January 28, 1972 set

aside the judgment and orders of the High Court opining that “the list of Backward

Classes, as well as the reservation of 25% of seats in Professional Colleges for the

persons mentioned in the said list is valid and is saved by Article 15 (4) of the

Constitution.” While it was observed therein that “ A perusal (of the list) shows that

the traditional occupations of the persons enumerated as backward were of a very

low order such as beggars, washermen, fishermen, watchmen at burial grounds,

etc.”

In 1982 the Government of Andhra Pradesh appointed Sri N.K.Muralidhara Rao, IAS,

as One Man Commission of Inquiry inter alia to review the existing list of backward

classes and also to make other recommendation with regard to the welfare of backward

classes. He submitted his report on 31-08-1982, recommending increase of reservations

to backward classes. Accepting these recommendations Government issued three

orders. Of them G.O.Ms.No.166 dated 15-7-1986 was the main order which included 9

new castes in BCs list. One other recommendation which has bearing on the present case

is that, the Muralidhara Rao Commission recommended to delete “Mehtar” (Muslim

scavenger)” from the existing list. But Government did not accept N.K.Muralidhara Rao’s

recommendation to delete Mehtar (Muslim scavenger) Community from the list. The

Government issued orders in G.O.Ms.No.167 and 168, both dated 15-7-1986, for raising

the percentage of reservation and including the new 9 new castes in the list. On challenge,

a Full Bench of this Court quashed only a part of the G.O.Ms.No.166 which enhanced the

reservation from 25% to 44% in V.Narayana Rao Vs. State of A.P[45]. But the

Government chose to maintain the status-quo ante that existed prior to 15-7-1986.

In exercise of power under Article 340 of the Constitution, the President of

India appointed the second Backward Classes Commission under the

chairmanship of Sri. B.P.Mandal, which recommended inclusion of 292 castes in

the list of BCs for the State of Andhra Pradesh. The orders of Government of India

implementing the recommendations of Mandal Commission were challenged in the

landmark Indira Sawhney case. As per the direction of the Supreme Court in this

case, the Government of Andhra Pradesh enacted the Andhra Pradesh

Commission for Bakcward Classes Act in 1993

(APCBC Act, 1993). Subsequently, under G.O.Ms.No.9 dated 26-01-1994

Government constituted the AP Commission for Backward Classes (APCBC), first

under the chairmanship of Justice K.S.Puttaswamy, to examine requests for

inclusion in the list of Backward Classes and to hear complaints of over-inclusion

and under-inclusion in the list.

In 1994, the Government issued G.O.Ms.No.30 dated 25-8-1994 including 14

castes/communities in list of BCs. “Muslim” was one of the 14 communities. This order

was challenged in this Court. Relying on the assurance given by the Advocate General on

behalf of the State Government, that the G.O.Ms.No.30 will not be given effect to until

receipt of a report from the BC Commission, the High Court instructed the Government not

to give effect to G.O.Ms.No.30.

In G.O.Ms.No.15 dated 4-6-2004, the State Government directed Commissioner of

Minorities Welfare to examine the social, economic and educational backwardness of the

Muslim Community in the State. The Commissioner submitted his report on 5-7-2004

recommending reservation of 5% seats to Muslim minorities in educational institutions and

employment. Accepting this recommendation, the Government issued G.O.Ms.No.33

dated 12-7-2004 providing 5% reservation for Muslim minorities in education and

employment by creating a fifth group called ‘E’ in the existing list of BCs which already had

four groups. A Full Bench of the AP HighCoourt in T.Muralidhar Rao Vs. State of AP, 2004

struck down this order and directed the Government to reconstitute the BC Commission.

In pursuance of the said direction the Government of Andhra Pradesh constituted the

present Andhra Pradesh BC Commission in G.O.Ms.No.57 BC welfare (C2) dated 18-11-

2004 to examine the request for inclusion of any class or classes of citizens as BCs in the

list and to hear complaints of over inclusion and under inclusion of BCs in the list of the

APCBC Act, 1993.

The Commission sent a report to the Government and the State Government, on the

basis of the said report of the BC Commission enacted A.P. Reservation of seats in the

Educational Institutions and of appointments in the Public Services under the State to

Muslim Community Act 2005. This was challenged in B.Archana Reddy Vs. State of

A.P. (2005 (6) A.L.T 364). A bench of five judges declared this Act as unconstitutional.

The bench inter alia held that “there is no prohibition to declare Muslim as a community,

socially and educationally backward for the pruposes of Article 15 (4) and 16 (4) of the

Constitution of India provided they satisfy the rest of social backwardness as stated in the

judgment”. Status-quo orders were given regarding the admission already made in the

Government colleges. The Government filed Civil Appeal in Supreme Court against the

orders of the High Court and the same is pending.

In view of the High Court striking down Ordinance No.13/2005 and Act No.21/2005

and for the reasons stated in the judgment, the Govt. of A.P. made a reference to the A.P.

Commission for Backward Classes vide Lr.No.5488/C2/2004-12, dated: 17-4-2007 to

identify classes/communities /groups among the Muslim population in the State that can be

classified as Socially and Educationally Backward Classes in the light of the judgment of

the High Court in W.P.No.13832 of 2005 and the Judgment of the Hon’ble Supreme Court

in the Mandal (Indira Sawhney) case dated 16-11-1992 and submit a report with clear

recommendations of the Commission.

Meanwhile the Government appointed Sri P.S.Krishnan, IAS, former Secretary to

Ministry of Welfare, Government of India, as Advisor to Government of Andhra Pradesh,

Backward Classes Welfare Department to advise, inter alia, on the issue of identifying

socially and educationally backward classes in the Muslim population in the State. Sri

Krishnan submitted his report to the Government on 11-06-2007. The Government

referred his report to this Commission for examination, recommendation and advice.

The Backward Classes Commission in its report identified 14 social groups and a

residuary group (15) in the Muslim community as socially and educationally backward

classes and recommended reservation of 4% in their favour and to place them as a

separate group in addition to the existing four groups. The State Government accepted the

said recommendation and notified the said social groups in the Muslim community as

socially and educationally backward classes and placed them in group ‘E’ and provided

4% reservation in their favour. To this effect, initially an Ordinance was issued which was

subsequently replaced by the present impugned Act.

A five-judge Bench of this High Court considered a batch of petitions and after

detailed hearing of counsels of petitioners and respondents, being of the view that certain

aspects of judgment and directions of the earlier five-Judge Bench in B.Archana Reddy

case require consideration by a larger Bench to see whether they are in contradiction with

the Supreme Court decisions in the Mandal case (Indira Sawhney) and Saurabl Chaudri

Cases, by its order dated 24-1-2008, referred the matter to the present seven Judge

Bench.

III

In ASHOK KUMAR THAKUR[46] case, the Apex Court was specifically required to

answer whether strict scrutiny principle as laid down by the American Supreme Court in

various judgments in the matter of protective discrimination can be applied in the Indian

context.

In Ashok Kumar, the Chief Justice Sri Balakrishnan speaking for himself and for

Justice Sri Ravindran, observed as follows:

209. The aforesaid principles applied by the Supreme Court of the UnitedStates of America cannot be applied directly to India as the gamut ofaffirmative action in India is fully supported by constitutional provisions andwe have not applied the principles of “suspect legislation” and we have beenfollowing the doctrine that every legislation passed by Parliament ispresumed to be constitutionally valid unless otherwise proved. We haverepeatedly held that the American decisions are not strictly applicable to usand the very same principles of strict scrutiny and suspect legislation weresought to be applied and this Court rejected the same in Saurabh Chaudri v.

Union of India626. Speaking for the Bench, V.N. Khare, C.J., said: (SCCp. 164, para 36)

“36. The strict scrutiny test or the intermediate scrutiny testapplicable in the United States of America as argued by ShriSalve cannot be applied in this case. Such a test is not applied inIndian courts. In any event, such a test may be applied in a casewhere a legislation ex facie is found to be unreasonable. Such atest may also be applied in a case where by reason of a statutethe life and liberty of a citizen is put in jeopardy. This Court sinceits inception apart from a few cases where the legislation wasfound to be ex facie wholly unreasonable proceeded on thedoctrine that constitutionality of a statute is to be presumed andthe burden to prove contra is on him who asserts the same.”

Whereas, Justice Sri Pasayat, speaking for himself and for Justice Sri C K

Thakker, in paras 251 observed that “……. American cases which have been highlighted

by the petitioners relate essentially to strict classification, strict scrutiny and narrow

tailoring. This issue is of considerable importance when so much debate is taking place

about respect being shown by Courts of a country to a decision of another country. The

factual scenario and the basic issues involved in the cases sometimes throw light on the

controversy. Further at para 268 it is observed that much assistance is not available to

the petitioners from the modern decisions’. In para 269, it is further held that what really

appears to be intention for the use of expression is careful and deeper scrutiny and not a

strict scrutiny of the provisions as is prevalent in the American jurisprudence.

Justice Dalvir Bhandari at para 640 held that “the principles enunciated by the

American Supreme Court such as ‘suspect legislation, narrow tailoring, strict scrutiny and

compelling state necessity are not strictly applicable for challenging the impugned

legislation.

As per the above, it is clear that Apex Court in Ashok Kumar Thakur reiterated the

view taken by it in Sourab Chowdary case (cited supra) which in effect means a law

made by the legislature in the country will be tested on the well laid down parameters of

lack of legislative competence and violation of fundamental rights or other constitutional

rights. It has been held by Apex Court in STATE OF A P VS MC.DOWELL[47] that only

two grounds available for striking down a legislative action i.e., lack of legislative

competence and violation of fundamental rights and other constitutional rights. Same was

reiterated in STATE OF BIHAR VS. BIHAR DISTILLERY LTD [48] as follows:

( 17 ) WE have already set out the substance of the minutes of the meetingheld on 15-12-89, the letter dated 19-2-90 (which was issued on the basis ofthe discussion held at the said meeting) as well as to the letter of theCommissioner dated 20-2-90. The minutes of the meeting dated 1 5/12/1989speak of fixation of the cost price of country liquor. The letter dated19/02/1990 speaks of "cost price of rectified spirit to be supplied as countryspirit/liquor from the country spirit warehouses" while the letter dated20/02/1990 speaks of "cost price of country liquor supplied from thewarehouses. " This mix up of the expressions of "rectified spirit to besupplied as country spirit/liquor" and "country liquor" in the saidproceedings/letters may perhaps be for the reason that all that it takes toconvert the rectified spirit into country spirit, it is said, is adding to water torectified spirit. May be or may not be. That is not material for our purposes.What is material is that the price of Rs. 3. 42 per L. P. L. said to have beenagreed upon at the meeting held on 15/12/1989, and referred to in the saidletters and which cost price has now been legislatively validated, all give thebreak-up of the said price which includes the figure of 70 paise per L. P. L.on account of "warehouse maintenance charges". Now, it is admitted -indeed, it is the positive case of Mr. Y. V. Giri - that the distilleries havenothing to do with maintenance of warehouses and that they were beingmaintained by the Government itself during the said period. The preamble tothe Amending Act and the amended provisions expressly speak of the saidcost price and its break-up. The Amending Act further provides expresslyfor deduction of the said 70 paise per L. P. L. component for being creditedto the Government's account. In the face of all these facts, it is difficult tounderstand on what basis can the distilleries say that the said component of70 paise should not be deducted. The Amending Act is not taking awayanything from the distilleries; it is merely affirming and validating the actsand orders already issued in view of, and with a view to remove, the defectpointed out by the High Court in its first judgment. It cannot be disputed, atthis stage, by the distilleries that they were not parties to the meeting held on15/12/1989 or that they did not receive the letter of the Commissioner dated19/02/1990. If this were so, it is understandable on what basis and at whoserequest or order, they were supplying the spirit to the distilleries. It cannotbut he held in the circumstances that the distilleries accepted the offercontained in the Commissioner's letter dated 1 9/02/1990 and were makingsupplies on the basis of the said letter and the orders placed pursuant to thatletter and their acceptance of it.

And IN DHARAM DUTT VS, UNION OF INDIA [49] it was held as follows:

(16) Though the petition alleges the impugned Act (with the history ofpreceding Ordinances) to be the outcome of political malice, no particularsthereof have been given by the writ petitioner. However, that aspect neednot be deliberated upon any further in view of two Constitution Benchdecisions of this Court. It has been held in K. C. Gajapati Narayan Deo andOrs. v. State of Orissa, (1954) SCR 1, and in Board of Trustees, Ayurvedicand Unani Tibia College, Delhi v. State of Delhi (Now Delhi Administration)and Anr. , 1962 Supp. (1) SCC 156, that the doctrine of ColourableLegislation does not involve any question of bona fides on the part of thelegislature. The whole doctrine resolves itself into the question of thecompetency of a particular legislature to enact a particular law. If thelegislature is competent to pass a particular law, the motives which Impelledit to act are really irrelevant. On the other hand, if the legislature lackscompetency, the question of motive does not arise at all. We will, therefore,concentrate on the legislative competence of Parliament to enact theimpugned legislation. If the Parliament has the requisite competence toenact the impugned Act, the enquiry into the motive which persuaded theParliament into passing the Act would be of no use at all. Gist of theimpugned Act

It is therefore clear that the case in Archana Reddy, which adopted strict scrutiny

principle as enunciated by the American Supreme Court , that the attendant principles of

compelling state necessity and narrow tailoring cannot be applied in the Indian Context.

Even in Indira Sawhney case [50], Justice B.P. Jeevan Reddy, speaking for majority held

as under:

“798. This can be formed by the State on its own, i.e., on the basis of thematerial it has in its possession already or it may gather such materialthrough a Commission/Committee, person or authority. All that is requiredis there must be some material upon which the opinion is formed. Indeed, inthis matter the court should show due deference to the opinion of the State,which in the present context means the Executive. The Executive issupposed to know the existing conditions in the society, drawn as it is fromamong the Representatives of the people in Parliament/Legislature. It doesnot however mean that the opinion formed is beyond judicial scrutinyaltogether. The scope and reach of judicial scrutiny in matters withinsubjective satisfaction of the Executive are well and extensively stated inBarium Chemicals Vs. Company Law Board (AIR 1967 SC 295) Vol.I page147, which need not be repeated here. Suffice it to mention that theprinciples apply equally in the case of Constitutional provision like Article 16(4), which expressly places the particular fact (inadequate representation)

within the subjective judgment of the State/Executive”.

842. It is enough to say on this question that there is no particular or specialstandard of judicial scrutiny in matters arising under Article 16(4) or for thatmatter, under Article 15(4). The extent and scope of judicial scrutinydepends upon the nature of the subject-matter, the nature of the rightaffected, the character of the legal and constitutional provisions applicableand so on. The acts and orders of the State made under Article 16(4) do notenjoy any particular kind of immunity. At the same time, we must say thatcourt would normally extend due deference to the judgment and discretion ofthe executive — a co-equal wing — in these matters. The politicalexecutive, drawn as it is from the people and represent as it does themajority will of the people, is presumed to know the conditions and theneeds of the people and hence its judgment in matters within its judgmentand discretion will be entitled to due weight. More than this, it is neitherpossible nor desirable to say. It is not necessary to answer the question asframed.

857. Before parting with this aspect, we must say that identifying theimpugned Office Memorandums with the Mandal Commission Report isbasically erroneous. Such an identification is bound to lead one intoconfusion. He would be missing the wood for the trees. Instead ofconcentrating on the real issues, he would deviate into irrelevance andimbalance. Mandal Commission Report may have led to the passing of theimpugned Office Memorandum dated August 13, 1990; it may have actedas the catalytic agent in bringing into existence the reservation in favour ofOBCs (loosely referred to as SEBCs in the O.M.) but the OfficeMemorandum dated August 13, 1990 doesn’t incorporate the Mandal lists ofOBCs as such. It incorporates, in truth and effect, the State lists asexplained hereinabove. In a social measure like the impugned one, the courtmust give due regard to the judgment of the Executive, a co-equal wing ofthe State and approach the measure in the spirit in which it is conceived.This very idea is put forcefully by Joseph Raz (Fellow of Balliol College,

Oxford) in his article “The Rule of Law and Its Virtue”148 in the followingwords:

“ ... one should be wary of disqualifying the legal pursuit of major socialgoals in the name of the rule of law. After all the rule of law is meant toenable the law to promote social good, and should not be lightly used toshow that it should not do so. Sacrificing too many social goals on the altarof the rule of law may make the law barren and empty.”

Justice Ratnavel pandian in separate but concurring judgment opined as follows:

174. The expression “in the opinion of the State” would mean the formationof opinion by the State which is purely a subjective process. It cannot bechallenged in a Court on the grounds of propriety, reasonableness andsufficiency though such an opinion is required to be formed on the

subjective satisfaction of the Government whether the identified ‘backwardclass of citizens’ are adequately represented or not in the Services underthe State. But for drawing such requisite satisfaction, the existence ofcircumstances relevant to the formation of opinion is a sine quo non. If theopinion suffers from the vice of non-application of mind or formulation ofcollateral grounds or beyond the scope of Statute, or irrelevant andextraneous material then that opinion is challengeable. See (1) Dr N.B.

Khare v. State of Delhi35; (2) Govindji Vithaldas & Co. v. Municipal

Corporation, Ahmedabad36; (3) Virendra v. State of Punjab37; (4)

Barium Chemicals Ltd. v. Company Law Board38 and (5) Rohtas

Industries v. S.D. Agarwal39.

176 . The action of the Government in making provision for thereservation of appointments or posts in favour of any ‘backward class ofcitizens’ is a matter of policy of the Government. What is best for the‘backward class’ and in what manner the policy should be formulated andimplemented bearing in mind the object to be achieved by such reservationis a matter for decision exclusively within the province of the Governmentand such matters do not ordinarily attract the power of judicial review orjudicial interference except on the grounds which are well settled by acatena of decisions of this Court. Reference may be made to: (1) Hindustan

Zinc Ltd. v. A.P. State Electricity Board40; (2) Shri Sitaram Sugar Co. Ltd. v.

Union of India41; (3) Delhi Cloth and General Mills Ltd. v. S. Paramjit

Singh42; (4) Minerva Talkies v. State of Karnataka43; (5) State of Karnataka

v. Ranganath Reddy44; (6) Kerala State Electricity Board v. S.N. Govinda

Prabhu and Bros.45; (7) Prag Ice and Oil Mills v. Union of India46; (8)

Saraswati Industries Syndicate Ltd. v. Union of India47; (9) Murthy Match

Works v. Assistant Collector, Central Excise48; (10) T. Govindaraja

Mudaliar v. State of T.N.49 and (11) Narender Kumar v. Union of India50.

To what extent can the reservation be made?

Justice Sawant in separate concurring judgment held as follows:

529. The answer to the question lies in the question itself. There are nospecial principles of judicial review nor does the scope of judicial reviewexpand when the identification of backward classes and the percentage ofthe reservation kept for them is called in question. So long as correctcriterion for the identification of the backward classes is applied, the resultarrived at cannot be questioned on the ground that other valid criteria werealso available for such identification. It is possible that the result so arrived atmay be defective marginally or in marginal number of cases. That does notinvalidate the exercise itself. No method is perfect particularly whensociological findings are in issue. Hence, marginal defects when foundmay be cured in individual cases but the entire finding is not rendered invalid

on that account.

530. The corollary of the above is that when the criterion applied foridentifying the backward classes is either perverse or per se defective orunrelated to such identification in that it is not calculated to give the result oris calculated to give, by the very nature of the criterion, a contrary orunintended result, the criterion is open for judicial examination.

537. To sum up, judicial scrutiny would be available (i) if the criterioninconsistent with the provisions of Article 16 is applied for identifyingthe classes for whom the special or unequal benefit can be given under thesaid article; (ii) if the classes which are not entitled to the said benefit arewrongly included in or those which are entitled are wrongly excluded fromthe list of beneficiaries of the special provisions. In such cases, it is noteither the entire exercise or the entire list which becomes invalid, so long asthe tests applied for identification are correct and the inclusion or exclusionis only marginal; and (iii) if the percentage of reservations is eitherdisproportionate or unreasonable so as to deny the equality of opportunity tothe unreserved classes and obliterates Article 16(1). Whether thepercentage is unreasonable or results in the obliteration of Article 16(1), sofar as the unreserved classes are concerned, it will depend upon the factsand circumstances of each case, and no hard and fast rule of generalapplication with regard to the percentage can be laid down for all the regionsand for all times.

Justice B P Jeevan Reddy, after referring to various judgment of the Apex Court

with regard to Article 15 and 16 to show that evolution in the thinking process by the Apex

Court, with regard to the said articles, went on to refer the decisions of U S Supreme Court

in paras 715 and 733. In para 732 it was held as follows;

“We have examined the decision of U S Supreme Court at somelength only with a view to notice how another democracy is grapping with aproblem similar in certain respects to the problem facing this Country”

At para 733, it is observed that “No single uniform thought can bediscern from these decisions, ideas appear to be in the process ofevolution”.

The above statement is with regard to fluid situation pertaining to U S decisions and

U S jurisprudence context. Such a caution was incorporated to clarify that reference to U

S decisions cannot be construed to mean to apply the essence of the said judgments while

dealing with judicial scrutiny by the Indian Courts in the matters of social justice measure.

From the above pronouncements, it follows that; the citizens of this country were and

are being treated unequally because of caste system which is prevalent and haunting our

country for the last several centuries, which is unique. That this is not confined only to

Hindu society, but has percolated to societies of other egalitarian religions also. Which is

recognised by the drafters of the Constitution and provides for and aims at equality

amongst its citizens mandating the State to take social justice measures including

reservation for SCs, STs and BCs to attain the said goal. Such social justice measured

either by executive or by legislature are subject to judicial scrutiny to determine whether the

same are Constitutionally valid. There exist no special standards of judicial scrutiny of such

justice measures and Courts are bound by normal standards laid down by the judiciary for

judicial scrutiny of any administrative action/legislative action as the case may be. The

Courts will only examine the process of decision making, but not the decision itself. The

Court will examine whether there is no material at all or there is some relevant material.

Sufficiency of the material cannot be the basis of judicial scrutiny. The burden of proof is

on the objecting citizen to demonstrate that such social justice action was not in tune with

the Constitutional mandate on the State vis-à-vis the fundamental rights of the citizens. The

Courts would not pick holes in the process of decision making and would give due

weightage to such policy decision in the path of social justice action by co-equal wings ie.,

executive or legislature. Though the decisions of U.S. Supreme Court were referred and

discussed, the said exercise was undertaken by Hon’ble Apex Court only to discuss about

a similar situation in U.S.A. in some respects, i.e., racial discrimination against Blacks.

In view of the above, it is clear that the opinions expressed by Justice Goda

Raghuram and Justice V V S Rao, about the applicability of the concept of strict scrutiny,

narrow tailoring and compelling state necessity, suspect legislation etc are not available to

Indian Courts while examining the aspect of providing social justice measure.

Thus, it has to be held that said opinions as accepted by five Judges in Archana

Reddy case is not a good law, the same being contrary to the aforesaid decisions of the

Apex Court and I hold that the Archana Reddy case was not correctly decided on the

question of application of whip of strict scrutiny principle as enunciated by the American

Courts and is contrary to the law laid down by the Supreme Court in the decisions referred

above. Accordingly, I answer the first issue referred.

IV

In fact, the Supreme Court in Barium Chemicals Vs Company Law Board[51] held

that any executive action for taking such measures would be tested on the anvil of

principles laid down in the said case, nothing more nothing less.

The learned senior counsel Sri K Ramakrishna Reddy, appearing for the writ

petitioners vehemently contended inter-alia that appointment of

Sri P.S.Krishnan, IAS as Advisor to the Government of A P Backward Classes Welfare for

advising the state vide G O Ms No. 21 dated 18.1.2007 who in turn submitted his report to

the State Government on the existence of insular groups within the muslim community is

invalid, for the reason that it runs counter to the provisions of A P Backward Classes

Commission Act and the Government could not have appointed him as Advisor under its

executive power under Article 162 of the Constitution of India. It was contended that Sri P

S Krishnan, has no expertise in the matter and at any rate his appointment is illegal,

contrary to the provisions of the Act. It was argued that Sri P S Krishnan’s report could not

have been relied by the A P Commission for Backward Classes and by relying extensively

on the contents of the said report, the A P Commission for Backward Classes, has

abdicated its functions, thus negating the requirement of submission of the report by the

Commission as laid down by the Apex Court in Indira Sawhney case. However, the

learned Senior Counsel Sri Ramakrishna Reddy, failed to show any provision under A P

Commission for Backward Classes Act, which prohibit the government from appointing an

advisor for reporting on the status of the backward classes in the state and in the absence

of such a provision, it cannot be contended that the appointment of Sri P S Krishnan, as

advisor to the State was illegal and in violation of the provisions of the Act. It is to be seen

that G O Ms no. 21 Backward Classes Welfare (C2) Department was in fact, issued under

the seal of the Governor of the State of A P, exercising powers under Article 162 of the

Constitution of India. It is well established principle of law that under Article 162, the State

can issue administrative orders, which its legislature is competence to deal with.

That apart, having regard the nature of exercise and with all its own powers in the

process, there cannot be fixed norms for the purpose of mode of identification. In the

process, first as the procedure is left its own discretion, the Commission can have the

material as can be made available from different expertise. In what way, the expertise is

sought is not crucial factor as long as there is nothing to make any adverse attribution.

Therefore, it is open for the concerned provide the necessary expert assistance and it is for

the Commission to consider and either reject or rely on. Nothing has been found fault with

the report or material assistance given by Mr P.S. Krishnan.

In the absence of any prohibition in the Act and in view of powers under Article 162 of

Constitution of India, it cannot be said that appointment of

Sri P S Krishnan, as Advisor to the State Government, is illegal or unconstitutional.

Now coming to the question as to whether the report of Sri P S Krishnan, could

have been forwarded to the State Government

for B.C. Commission and whether B C Commission could have relied on the contents of

the said report for its recommendations, it is to be seen that under the Act, 1993, the State

Government as already stated above is not bound by the recommendations of B C

Commission and it can take an independent view of the matter. In fact, in Indira Sawhney

case, the Apex Court has made it clear, that recommendations of Commission are not

binding on the Government. The Government is entitled to consider of the report of the B

C Commission and arrive at its own conclusions, either rejecting or accepting the same.

The Government is entitled to examine the report of the Commission with the material

available with it or gathered from various sources and come to an independent conclusion

to achieve the constitutional goals. In that view of the matter, Government has referred the

matter to the B C Commission, identifying the insular groups in muslims and to find out

whether such insular groups are socially and educationally backward, Sri P S Krishnan’

report which is exhaustive and deals with all aspects of muslims in this country,

emergence and expansion of Islam over a period of time by conversion of Hindu

population and in the process of conversions continuance of their own occupations and

consequent creation of insular occupational groups which are also endogamous in nature

would be of great help to the Commission in coming to a proper conclusion and make its

recommendations.

In fact, a Full Bench of this Court in Muralidhar Rao case (supra) observed as

follows:

(25) THE Central Government ultimately took a decision that no all India listof backward classes should be drawn up, nor any reservation be made inthe Central government Service for any group of backward classes otherthan the Scheduled castes and Scheduled Tribes. Consequently, on 14thAugust, 1961, the ministry of Home Affairs addressed all the stateGovernments stating, "while the State governments have the discretion tochoose their own criteria for defining backwardness, in the view of theGovernment of India it would be better to apply economic tests than to go bycaste. " Regarding the preparation of backward classes list, it wasobserved, "even if the Central Government were to specify under Article 338(3) certain groups of people as belonging to 'other backward classes', it willstill be open to every State government to draw up its own lists for thepurposes of Articles 15 and 16. As, therefore, the State Governments may

adhere to their own lists, any all-India list drawn up by the CentralGovernment would have no practical utility".

Similar is the observation made in Archana Reddy’s case at para 269. Both the

above judgments rendered by larger benches felt that Commission can rely on any

material that it receives from any sources which includes Government. In view of the

same, it cannot be said that appointment of Mr P S Krishnan, as advisor to the government

and government forwarding the report of Sri P S Krishnan to B C Commission for its use

cannot be found fault with, in the absence of any statutory prohibition.

It is contended by learned counsel for the petitioners that B C Commission has not

evolved any criteria or guidelines in identifying the social and educational backwardness of

insular groups in muslim community for inclusion in the backward classes list. It is also

the contention of the petitioners that B C Commission has not followed the criteria adopted

by earlier commissions and/or the criteria adopted by the Mandal Commission.

In Indira Sawhney case, held at as follows:

782. Coming back to the question of identification, the fact remains that onehas to begin somewhere — with some group, class or section. There is noset or recognised method. There is no law or other statutory instrumentprescribing the methodology. The ultimate idea is to survey the entirepopulace. If so, one can well begin with castes, which represent explicitidentifiable social classes/groupings, more particularly when Article 16(4)seeks to ameliorate social backwardness. What is unconstitutional with it,more so when caste, occupation poverty and social backwardness are soclosely intertwined in our society? [Individual survey is out of question, sinceArticle 16(4) speaks of class protection and not individual protection]. Thisdoes not mean that one can wind up the process of identification with thecastes. Besides castes (whether found among Hindus or others) there maybe other communities, groups, classes and denominations which mayqualify as backward class of citizens. For example, in a particular State,Muslim community as a whole may be found socially backward. (As amatter of fact, they are so treated in the State of Karnataka as well as in theState of Kerala by their respective State Governments). Similarly, certainsections and denominations among Christians in Kerala who were includedamong backward communities notified in the former princely State ofTravancore as far back as in 1935 may also be surveyed and so on and so

forth. Any authority entrusted with the task of identifying backward classesmay well start with the castes. It can take caste ‘A’, apply the criteria ofbackwardness evolved by it to that caste and determine whether it qualifiesas a backward class or not. If it does qualify, what emerges is a backwardclass, for the purposes of clause (4) of Article 16. The concept of ‘caste’ inthis behalf is not confined to castes among Hindus. It extends to castes,wherever they obtain as a fact, irrespective of religious sanction for suchpractice. Having exhausted the castes or simultaneously with it, theauthority may take up for consideration other occupational groups,communities and classes. For example, it may take up the Muslimcommunity (after excluding those sections, castes and groups, if any, whohave already been considered) and find out whether it can be characterisedas a backward class in that State or region, as the case may be. Theapproach may differ from State to State since the conditions in each Statemay differ. Nay, even within a State, conditions may differ from regionto region. Similarly, Christians may also be considered. If in a given place,like Kerala, there are several denominations, sections or divisions, each ofthese groups may separately be considered. In this manner, all the classesamong the populace will be covered and that is the central idea. The effortshould be to consider all the available groups, sections and classes ofsociety in whichever order one proceeds. Since caste represents anexisting, identifiable, social group spread over an overwhelming majority ofthe country’s population, we say one may well begin with castes, if one sochooses, and then go to other groups, sections and classes. We may say,at this stage, that we broadly commend the approach and methodologyadopted by the Justice O. Chinnappa Reddy Commission in this respect.

783. We do not mean to suggest — we may reiterate — that theprocedure indicated hereinabove is the only procedure or method/approachto be adopted. Indeed, there is no such thing as a standard or modelprocedure/approach. It is for the authority (appointed to identify) to adoptsuch approach and procedure as it thinks appropriate, and so long as theapproach adopted by it is fair and adequate, the court has no say in thematter. The only object of the discussion in the preceding para is toemphasise that if a Commission/Authority begins its process of identificationwith castes (among Hindus) and occupational groupings among others, itcannot by that reason alone be said to be constitutionally or legally bad. Wemust also say that there is no rule of law that a test to be applied foridentifying backward classes should be only one and/or uniform. In a vastcountry like India, it is simply not practicable. If the real object is to discoverand locate backwardness, and if such backwardness is found in a caste, itcan be treated as backward; if it is found in any other group, section orclass, they too can be treated as backward.

796.-797. We may now summarise our discussion under Question No. 3.(a) A caste can be and quite often is a social class in India. If it is backwardsocially, it would be a backward class for the purposes of Article 16(4).Among non-Hindus, there are several occupational groups, sects anddenominations, which for historical reasons are socially backward. They toorepresent backward social collectivities for the purposes of Article 16(4). (b)

Neither the constitution nor the law prescribe the procedure or method ofidentification of backward classes. Nor is it possible or advisable for thecourt to lay down any such procedure or method. It must be left to theauthority appointed to identify. It can adopt such method/procedure as itthinks convenient and so long as its survey covers the entire populace, noobjection can be taken to it. Identification of the backward classes cancertainly be done with reference to castes among, and along with, othergroups, classes and sections of people. One can start the process with thecastes, wherever they are found, apply the criteria (evolved for determiningbackwardness) and find out whether it satisfies the criteria. If it does — whatemerges is a “backward class of citizens” within the meaning of and for thepurposes of Article 16(4). Similar process can be adopted in the case ofother occupational groups, communities and classes, so as to cover theentire populace. The central idea and overall objective should be to considerall available groups, sections and classes in society. Since caste representsan existing, identifiable social group/class encompassing an overwhelmingmajority of the country’s population, one can well begin with it and then go toother groups, sections and classes. (c) It is not necessary for a class to bedesignated as a backward class that it is situated similarly to the ScheduledCastes/Scheduled Tribes. (d) ‘Creamy layer’ can be, and must be,excluded. (e) It is not correct to say that the backward class contemplatedby Article 16(4) is limited to the socially and educationally backward classesreferred to in Article 15(4) and Article 340. It is much wider. The test orrequirement of social and educational backwardness cannot be applied toScheduled Castes and Scheduled Tribes, who indubitably fall within theexpression “backward class of citizens”. The accent in Article 16(4) appearsto be on social backwardness. Of course, social, educational and economicbackwardness are closely intertwined in the Indian context. The classescontemplated by Article 16(4) may be wider than those contemplated byArticle 15(4).

Therefore, in the matter of identification of the backward classes, there cannot be

one single or uniform procedure that can be adopted by any Commission or authority

entrusted with such task. It is for the body entrusted with such task to adopt such

approach and procedure as it deems appropriate. The Apex Court recognizing the need

for the Commission/Body to have discretion in adopting its own methods, did not choose to

prescribe any particular procedure and categorically held that it is for the Commission to

evolve its own procedure. Under Section 8 (2) of the Act it is for the Commission to

regulate its own procedure. It is always open for the Commission to adopt its own

procedure and it is not necessary for the Commission to adopt any procedure or criteria

adopted by earlier commissions or to follow a particular criteria for all times to come and for

all dispensations in this regard. What is important in the matters of this nature is to have a

rational criteria and as long as the Commission has evolved a rational criteria it is not open

for the Courts to scrutinize the criteria in minute detail. The criteria/methodology is bound

to differ from time to time, region to region claim to claim and from one exercise to other.

The Courts would not interfere with the recommendations of the Commission only on the

ground that the Commission could have adopted a different or better criteria/procedure.

The Commission in fact has followed a particular criteria and the same is discernable from

the very report of the Commission. In Chapter III of B C Commission report, wherein it

was specifically mentioned that the Commission has taken note of and kept in view the

guidelines/procedure/questions evolved by National Commission for Backward Classes

(for short NCBC) especially the guidelines, questions pertaining to “fast track” method and

that the Commission has also followed rough and ready method which was evolved and

adopted by Mandal Commission. The NCBC guidelines which are appended to B C

Commission report in juxtaposition with the questions prepared by B C Commission show

that B C commission followed NCBC guidelines to a large extent. A reading of NCBC

guidelines would indicate that the said guidelines were evolved by NCBC after taking into

account the criteria and indicators framed by mandal Commission and other Commissions

set up for the purpose by different state Governments and based on relevant material. It is

also clear from certain clarifications given on the said guidelines that said guidelines are

issued by NCBC only to aid the Commissions to identify the groups but would not fetter

due exercise or discretion by the concerned Commissions entrusted with the tasks. On a

totality, this would show that NCBC has evolved a broad and universal criteria/guidelines

but did not take away the discretion of the Commission to evolve its criteria, keeping in

view the need to evolve its own criteria for different situations. The NCBC having regard to

the fact that certain castes/communities can be straightaway be brought under the

definition of social and educational backwardness, evolved a procedure called “fast track”.

The NCBC realizing the need to identify such socially and educationally backward classes

who are denied such dispensation though they are otherwise entitled to under the

constitutional dispensation, introduced the concept of fast track to avoid any further delay in

identifying such groups. As per the said fast track procedure, if a particular group fulfills

certain guidelines/criteria, the Commission may take it as adequate evidence of

backwardness of that group and that the Commission besides such positive adequate

evidence of the backwardness may also take note of other information which may come to

its notice before submitting its recommendations. It was further stated that if the

Commission is satisfied that there is no contra evidence against holding a particular fast

track category/group to be backward, having regard to the fact that the said group falls

under fast track method, the Commission may conclude that said group falls under

backward class. The NCBC with its experience, evolved a procedure by which a group

can be identified as socially backward group and in the present dispensation the

Commission has followed the said criteria and also conducted its own survey and having

found no contra material, recommended the said social groups to be identified as socially

and economically backward classes. In effect, it is his contention that while dealing with

certain groups, there is no necessity for an elaborate enquiry/probe and that such elaborate

enquires may be required only in broader line cases and that the groups identified now are

those which straightaway fall under the fast track method introduced by NCBC and

adopted by the Commission. We have gone through the criteria evolved by NCBC and the

questionnaire prepared. The communities which are identified with hereditary occupations

which are considered to be low and undignified/stigmatized and are straightaway

considered as backward classes. Similarly nomadic and semi-nomadic communities and

identified ‘vimukthajati’ communities are also straightaway considered as backward

classes. The NCBC guidelines in general and fast track procedure in particular has been

evolved by NCBC in view of its expertise on the subject. APCBC taking note of NCBC

guidelines which has taken note of the earlier criteria indicators of earlier commissions and

authorities fast track method was adopted to avoid any delay in providing dispensation

under Article 15 and 16 of the Constitution. Such a procedure is quite reasonable and

rationale. Therefore, it cannot be said that there is no criteria evolved by the Commission

in the present dispensation. At any rate petitioners have not chosen to challenge the validity

of the guidelines evolved by NCBC. The Commission had followed rough and ready

method evolved and adopted by mandal commission. As per rough and ready method

untouchables converted to any non-hindu religion and such occupational communities

which are known by name of the traditional hereditary occupation and whose Hindu

counter-parts have been included in the list of Hindu Other Backward Classes, such as

‘Dhobi, Teli, Nai, Darji etc, can straightaway be identified as backward classes. The

commission has followed fast track method evolved by NCBC and rough and ready

method evolved and adopted by Mandal Commission, which was referred and approved

by the Apex Court in Indira Sawhney case, the contention of the petitioners that

Commission has not evolved any criteria whatsoever is factually incorrect and as the

Commission has not only adopted a time tested criteria/method and also conducted survey

on its own to find out any contra evidence and only then submitted its recommendations,

would show that there is no requirement of interference by this Court on this ground. A

careful perusal of the guidelines issued by NCBC including the fast track method which

guidelines are based on the experience gained by NCBC over a long period of time, are

rational and any conclusions arrived at based on such guidelines cannot be found fault

with. In fact, most of the insular groups of muslims recommended for inclusion as

backward classes fall into rough and ready criteria adopted by the Mandal Commission,

since their counter parts amongst Hindus are already included in the list of backward

classes. Therefore, all the insular groups in muslims identified known as socially and

educationally backward classes, prima facie, without any rebuttal would satisfy the

requirement of guidelines recommending them for inclusion in the list of backward classes

under fast track method. One of the contentions urged on behalf of the petitioners is that

most of the communities as stated in the survey conducted by the BC Commission,

majority of those insular groups are no longer practicing and moved out of their traditional

occupation, hence it is contended that those insular groups cannot be identified as

backward classes as they are no longer profess/practice the traditional occupations.

However, it is to be noted that as society evolve and gets urbanized, people practicing a

particular occupation or profession tend to move out of that profession in view of the stigma

attached to the profession or because such profession may become redundant in view of

changed times. However, such social mobility can be in three directions, i.e., 1) upward

mobility, 2) Practicing unstigmatised profession and 3) downward mobility. It is clear from

the answers to the questionnaire for each of the communities recommended to be included

in the backward classes that though majority of them have left their traditional occupation

and then moved to become agricultural labourers or some other menial occupations,

however, the stigma attached to their traditional occupations continues to haunt them,

since those communities have not moved into any better or more respectable

occupations. They continue to live in penury as agricultural labourers or as manual

labour. While issuing guidelines the NCBC has taken note of the fact that people are likely

to move out of their traditional occupations and such people, if they continue to eek-out

their livelihood as agricultural labour or other manual labour would be automatically entitled

for inclusion in the list of backward classes.

The exercise by the APCBC and the statistical data collected would show that those who

have moved out of the traditional occupations have remained agricultural labours or as

manual labour. I will be failing in my duty, if I do not express my displeasure over the

manner in which APCBC has conducted its survey. The APCBC could have conducted a

better survey, could have collected more data, however, lack of more extensive data and

better exercise by the Commission would not make the report unreliable and would not

make it unscientific or irrational. The Commission obviously felt satisfied that there is no

contra material from the data collected by its officers and that requirement was sufficient

for inclusion of those communities in the list of backward classes. At any rate, sixty years

after independence, groups of communities within muslim who in spite of Islamic religious

belief of non discrimination and brotherhood among muslims have carried the traditional

occupations and along with that the prejudices and stigmas and the low and high amongst

them based on such occupations, as noted by plethora of historians in the historical

background of Islamic society in this country. Sixty years after independence and nearly

fifty of their Hindu counter parts are included in the backward classes. The muslim society

by and large has been ignored by all sections of society, in view of the popular belief that

there is no discrimination and concept of high and low in the Islamic society which fact is

belied by various studies referred to by Mr P S Krishnan as well as the Commission. It is

sad that due to ignorance of the ground reality and misconception about the Indian Muslim

society, amongst muslim society a large percentage, nearly 80% of the muslim population

who are entitled to be treated as socially and educationally backward classes, on the same

basis as their counter parts amongst Hindus were treated, have not got the benefit of

affirmative action mandated by Constitution.

One of the contentions of the learned counsel for petitioners is that the sample

survey conducted by the Commission is inadequate, cannot lead to any accurate results or

rational conclusions and therefore the report of the Commission, could not have been relied

by the State for the legislation. It is true that Commission could have done a better job,

conducted a better survey, collected some more statistical data, however, lack of efforts

on the part of the Commission in this regard would not make the report rational or un-

scientific. As already pointed out the Commission has followed the guidelines issued by

NCBC and rough and ready method of Mandal Commission and was only looking for

contra material to find out if any of the insular groups, occupational groups within muslims

have moved socially upward so as to be discriminated against and have joined the main

stream of Islamic society, but in vain.

I n AHMEDABAD MILLOWNERS’ ASSOCIATION VS. TEXTILE LABOUR

ASSOCIATION [52] held as follows;

32. The first point which we must now consider is whether the appellantsare justified in contending that the Industrial Court erred in overruling, theircontention that the new survey suffered from two major infirmities —inadequacy of the sample size, and impropriety of the method, of interviewadopted by the Investigators. In support of this plea, the appellantsexamined Mr Gokhale as an expert witness. Mr Gokhale who served in theLabour Office at Bombay from 1926 to 1937, was directly associated withthe family budget inquiries, compilation of cost of living index numbers, andwith the first General Wage Census conducted by the Labour Office inBombay. He also worked as Assistant Secretary of the Bombay TextileLabour Enquiry Committee. Later, he joined the Millowners, Association,Bombay, as their Labour Officer on 1st January, 1938 and served in thatcapacity until he retired on 1st November, 1962. He was deputed on a studytour to Lancashire in 1951 and attended the International Labour Conferenceat Geneva. He has also been a member of the ILO Committee on Women’sEmployment. According to Mr Gokhale the new survey was not as scientificas it might have been. He was inclined to take the view that the sampleselected in the Ahmedabad inquiries was very inadequate. He commentedon the fact that the choice of the size of sample was determined, inter alia,on the ground of the workload manageable by the investigator, and he saidthat it was difficult for him to understand as to why in deciding the samplesize “workload manageable by the investigator” had to be considered as arelevant factor. He then produced a chart showing the ratio of the size of theuniverse with the size of sample, and said that nowhere had he found sucha low size of the sample as in the impugned inquiry. The size of the sample,according to him, in the impugned inquiry was less than even half a per centof population group which was intended to be covered.

33. Mr Gokhale was cross-examined by the respondent. It was put to

him that his experience in the matter of ample survey was somewhat limitedand that the said experience had now become antiquated in view of thegreat strides of progress which had been made in the science of samplesurvey after 1926. He agreed that sampling technique involves knowledgeof statistics and statistics involves mathematics, and he did not make anyclaim to be an expert either in statistics or in mathematics. In hisexamination-in-chief, Mr Gokhale appeared to criticise the extent ofimputation which was evident in the preparation of the new series; but in hiscross-examination, he fairly conceded that imputations have always got tobe done in compiling consumer price index. It had been done in the past, hesaid, as also in the case of the present series. When he was asked whetherhe knew what the percentage of imputation was in the compilation of theconsumer price index of 1926-27, he admitted that he did not know. He was,however, reluctant to agree with the Labour Bureau insofar as application oftheir reasons to individual items was concerned, and in support of his theoryhe relied upon the illustrations given by him in the affidavit which he had filedbefore he gave evidence.

34. The statements made by Mr Gokhale in his affidavit were disputedby the respondent and the accuracy and the validity of the views expressedby him were seriously challenged by Mr Vasavada who filed a reply onbehalf of the respondent (Item 19). In his reply, Mr Vasavada referred toclause 14 of the Resolution as reported at p. 403 of the International LabourCode — 1951 Vol. II; and emphasised the fact that the main distinguishingfeature of the new survey was that it was carried out under the technicalguidance of professional statisticians not only with adequate knowledge ofsampling theory but also with actual experience in sampling practice, andwith the help of a properly trained field and computing staff. This was therequirement laid down by the publications issued by the ILO and the UnitedNations as a very important test, and the impugned survey fully satisfies thesaid test. Mr Vasavada also referred to the opinion expressed by Dr Basuwho is at present the ILO Expert on the subject, that the size of the sampleshould be determined in the light of the permissible margin of error in theresulting Series of consumer price index numbers. In our country, thepermissible margin of error in the index has been broadly set at 2 per cent;and so, the case set out by Mr Vasavada on behalf of the respondent wasthat when the permissible margin of error in the index is 2 per cent, thenumber of families viz. 722 taken at Ahmedabad, is highly satisfactory.

35. Mr Vasavada then questioned the accuracy of Mr Gokhale’sstatement that such a small percentage of the universe had never beenadopted before in any other inquiry. He urged that the present techniqueshave advanced so far that a small sample size can achieve the best results;and he cited the example of a survey carried out in the United Kingdomwhere the proportion of 13,000 households surveyed to the total householdswhich constituted the universe came to 0.1 per cent. The Industrial Courthas considered the evidence given by Mr Gokhale and has taken intoaccount the arguments urged on behalf of the respondent, and it has heldthat the size of the sample selected for the impugned survey cannot be saidto introduce any infirmity in the survey. The question which we have todecide is whether the Industrial Court was right in coming to this conclusion.

36. In dealing with this question, it is necessary to refer briefly to thegenesis and growth of the science of Social Survey. “In its broadest sense”,says the Encyclopaedia of the Social Sciences, “a social survey is a firsthand investigation, analysis and co-ordination of economic, sociological, andother related aspects of a selected community or group. Such a survey maybe undertaken primarily in order to provide material scientifically gathered,upon which social theorists may base their conclusions; or its chief purposemay be to formulate a programme of amelioration of the conditions of life

and work of a particular group or community”. 2 Wells defines a socialsurvey as a “fact-finding study dealing chiefly with working-class poverty

and with the nature and problems of the community”. 3 As Moser has,however, pointed out, “this definition might have covered the classicalcommunity and poverty studies but would hardly be adequate, the first part

at any rate, to the modern forms of survey 4”.

37. The history of social survey in England can be said to have begunwith the publication of Mayhew’s book London Life and the London Poorpublished in 1851; and Booth made a very significant contribution to thescientific development of social survey by publishing his book Labour andLife of the People of London (1889-1902). Rowntree followed with his bookPoverty: A Study of Town Life. Thereafter, a number of studies have beenmade by social scientists, and the subject of the theory and practice ofsocial surveys has been the subject-matter of valuable and extensiveliterature all over the civilized world. During the First World War andthereafter, social scientists devoted their attention to the problem of familyliving studies mainly from the point of view of the impact of price changes onconsumers’ economic situation. The development of reliable consumerprice indices naturally involved the use of weights that would properly reflectthe consumption expenditure of the population. This led to further extensionof family living studies in different countries and for different periods, mainly

to secure information on patterns of consumption expenditure 5.

38. The Second World War and the conditions that flowed from it made itnecessary to carry on investigations on a wide range of inquiry relating to allaspects of living conditions, e.g., nutrition, health, education andemployment. The whole question of family living survey came up forconsideration in the Seventh International Conference of Labour Statisticiansin 1949. This Conference adopted a resolution defining the objectives offamily living studies and setting new international standards as regards theorganisation of enquiries and the analysis and presentation of the resultsthat flowed from it5-(B).

39. In India, a standardised statistical type of family living study was firstinitiated in Bombay in 1921. Such enquiries were also conducted in Sholapurin 1925, in Ahmedabad in 1926 and in some centres in Bihar in 1923. Whilereviewing the position of social surveys in India, the Royal Commission onLabour pointed out the great paucity of statistical material in this country forjudging the standard of living of the workers and recommended conduct ofsocio-economic enquiries of the type of family living surveys. This reportnaturally gave an impetus to the conduct of family budget enquiries. In all thesurveys that followed, sampling and interviewing techniques were adopted,though, of course, not of a much advanced nature. A statistical analysis of

the data collected was also attempted5-(C).

40. The Second World War saw the appointment of the Rau Court ofEnquiry constituted under the Trade Disputes Act, 1929. One of therecommendations made by the said Court was that the Central Governmentshould take up responsibility for maintaining up-to-date cost of living indexnumbers for important areas and centres. The Government of Indiaaccepted this recommendation and set up a special organisation called the“Directorate of Cost of Living Index Numbers” and family budget enquiriesamong industrial workers were conducted at 28 centres during 1944-45 inthe course of which 2700 budgets were collected. A remarkable feature ofthese enquiries was that for the first time in this country, an attempt wasmade to conduct such enquiries simultaneously at a large number ofcentres under more or less uniform techniques. During the same period, theLabour Bureau of the Government of India and some of the Organisations ofState Governments continued to conduct family budget enquiries from timeto time at specific areas or centres, either for deriving weighting diagramsfor consumer price index numbers or for collection of data required forfixation of minimum wages5-(D).

41. It was in the background of these events that the Second Five YearPlan made a significant recommendation. The Plan said that:

“The existing wage structure in the country comprises, in the main, abasic wage and a dearness allowance. The latter component in a majority ofcases has relation to cost of living indices at different industrial centres.These indices have not been built up on a uniform basis; some of them areworked out on primary data collected about 20 to 25 years ago and aretherefore, not a true reflection on the present spending habits of workers.Since one of the questions which the wage commission will have to takeinto account is the demand made by the workers’ organisations for merginga part of dearness allowance with the basic wage, evolvingrecommendations for such a merger will not be sufficiently scientific if costof living indices at different centres do not have a uniform basis. Steps willtherefore have to be taken simultaneously with the undertaking of a wagecensus, to institute enquiries for the revision of the present series of cost ofliving indices at different centres.”

It is in pursuance of this recommendation that the impugned survey wasmade.

42. Let us now see on what principles and methods the impugnedsurvey was made. It is necessary to begin the discussion of this questionwith the observation “that the consumer price index number measuresnothing but changes in prices, as they affect a particular population group;and so, it is really a price index number as distinct from a cost of living indexnumber. In fact, these indices used to be termed as cost of living indexnumbers in the past, but in order to make their meaning clear, it wasdecided by Government to change the name to consumer price indexnumbers in accordance with international recommendations and growingpractice in other countries. Most of the State Governments compiling such

index numbers have also adopted this usage 6”. This index number isintended to show over a period of time the average percentage change in

the prices paid by the consumers belonging to the population groupproposed to be covered by the index for a fixed list of goods and servicesconsumed by them. The average percentage change, measured by theindex, is calculated month after month with reference to a fixed period. Thisfixed period is known as the “base-period” of the index; and since the objectof the index is to measure the effect of price-changes only, the price-changes have to be determined with reference to a fixed list of goods andservices of consumption which is known as a fixed “basket” of goods andservices.

43. The index does not purport to measure the absolute level of pricesbut only the average percentage change in the prices of a fixed basket ofgoods and services at different periods of time. There are certain preliminaryconsiderations which are relevant in the construction of consumer priceindex numbers. The first consideration is the purpose which the index isintended to serve; and that necessarily involves the definition of the group ofconsumers to which the index is intended to relate. Then it is necessary todetermine the consumption level and pattern of the population group at aperiod of time which generally becomes the base-period of the indexnumbers. For that purpose, a list of commodities and services has to bemade. Usually, this list would contain items of food, fuel and light, clothing,and others; items of services, such as barbar charges, bus fare, doctor’sfee, etc., have also to be selected. It is the combined total of the items ofcommodities and services that constitutes the basket. Then follows adescription of the quality of each commodity and service through whichprice changes have to be measured. Generally, one quality which ispopularly consumed by the population group is selected for each commodityand service. The importance or weight which has to be attached to eachcommodity or service is also a material factor. For instance, if rice isconsidered to be twice as important as wheat in the consumption pattern,the weight of rice will be 2 in relation to 1 of wheat.

44. Having determined the consumption level and the pattern of thepopulation group, the next task to attempt is to arrange for the regularcollection of price data for the various qualities of commodities and serviceswhich enter the basket. With this material, the consumer price index has tobe compiled from month to month subsequent to the base period. That,shortly stated, is the nature of the preliminary considerations which have tobe borne in mind while constructing the consumer price index numbers.

45. We have just noticed the theory of weights on which weightingdiagrams are prepared. Weights are intended to indicate the importanceattached to the percentage changes in the prices paid by consumers fordifferent items (commodities and services) of consumption. Accordingly,each item in the index is given, what is called in technical language, a“weight” to represent the relative importance of the price changes recordedfor that item. This weight means nothing more than the percentage ofexpenditure on each item of goods and services in relation to the totalexpenditure. It will thus be seen that the main basis for determining the

weights of respective commodities and services is the investigation of thefamily budget; and that emphasises the importance and significance of aproper investigation. During the course of investigation, data are collected onall items, on which money has been defrayed by families; but only suchitems as involve consumption expenditure are included in the averagebudget. Even so, it is only selected items which find a place in the indexcalculations, because it is obviously neither practicable nor necessary toinclude all items featuring in the average budget. Since only a sample ofitems from each group is included in the index, it becomes necessary toenquire as to what happens to other items featuring in the average budgetbut not included in the index. Their weights are added or distributed to theitems included in the index, so that the total expenditure of the averagebudget is fully taken into account in the weights adopted for the index. Thisprocess is known as “imputation” of weights. Besides the weights the otherset of primary data which enter into the compilation of a series of consumerprice index numbers are the prices; and that emphasises the importance ofcollecting material data in respect of prices. The Investigator, therefore, hasto bear in mind all the relevant factors that ultimately go to the constructionof the index, and has to carry on his investigation in a proper and scientificway.

46. Having thus briefly reviewed the theoretical aspects of the factorsthat govern the construction of consumer price index numbers, let us nowproceed to see how the impugned inquiry was in fact held. The materialevidence which will assist us in this part of our inquiry is furnished by theReport on Family Living Survey among Industrial Workers at Ahmedabad,1958-59. From this report it appears that the organisation of the survey wasbased on the cooperation of several institutions. The survey was sponsoredby the Labour Bureau, Ministry of Labour & Employment, Government ofIndia; and its technical details were worked out under the guidance of aTechnical Advisory Committee on Cost of Living Index Numbers consistingof the representatives of the Ministries of Labour and Employment, Foodand Agriculture, Finance, Planning Commission, the National SampleSurvey Directorate, the Department of Statistics (C.S.O.), the IndianStatistical Institute and the Reserve Bank of India. The field work wasentrusted to the Directorate of National Sample Survey, and processing andtabulation of data collected in Schedule ‘A’ (Family Budget) to the IndianStatistical Institute, Calcutta. The tabulation of data collected in Schedule ‘B’which dealt with Level of Living was done in the Labour Bureau. It was amulti-purpose survey; and so, the investigation conducted under it coveredboth the Family Budget, and the Level of Living. Ultimate analysis of thedata, publication of reports on the results of the surveys and constructionand maintenance of new series of consumer price index numbers were theresponsibilities of the Labour Bureau.

47. The first thing that the Organisation did was to define a “workingclass family,” because this definition determined the size of the universe. Aworking class family which was the basic unit of the survey, was defined interms of sociological and economic considerations as consisting ofpersons:

(i) generally related by blood and marriage; or adoption;

(ii) usually living together and or served from the same kitchen: and

(iii) pooling a major part of their income and/or depending on a commonpool of income for a major part of their expenditure.

48. Then followed the delimitation of area. The geographical area to becovered during the survey was decided in consultation with localorganisations both official and non-official. At the Ahmedabad centre, 46localities were selected for the purpose of the survey; they consisted of 16Chawls, 21 Labour Colonies (Housing Societies) and 9 Villages. Beforesettling the ultimate units of the family living survey viz. the families, twotypes of sampling methods were adopted; they were the tenement samplingand the pay-roll sampling. The sample size for a centre was determined onthe basis of the number of industrial workers, the type of sampling followed,the work-load manageable by an Investigator and the required precision ofweights to be derived from Schedule ‘A’ for consumer price index numbers.The sample size for Ahmedabad was 720 families to be canvassed forSchedule ‘A’. The number of schedules finally collected and tabulated was722 for Schedule ‘A’. The two samples drawn for Schedules ‘A’ and ‘B’were, however, mutually exclusive, because canvassing for both theschedules from the same sampled families would have caused fatigue bothto the Investigators and the informants. The whole sample was staggeredover a period of 12 months evenly so as to eliminate the seasonal effects onthe consumption pattern. The selection of sample was done in two stages.In the first stage, the chawls within each of the wards were grouped to formblocks of about 150 households each and these blocks along with the“labour” colonies (housing societies) were grouped to form clusters of about450 households each, so that each cluster had blocks from different wards.From the list of these clusters and villages, 4 independent simplesystematic samples of 12 clusters or villages each were selected forsurvey. Each of the 12 clusters sampled for an Investigator was assigned toa particular month for enquiry by a random process. That is how the firststage was arranged.

49. The second stage unit for selection was a working class family.Each month, the Investigator listed all the families in the cluster allotted tothat month by house-to-house visit and classified them as working classfamiliar and others. While listing, information was also collected on thefamily size, the expenditure class to which it belonged and the State of originof the head of the family. This information was utilised to arrange theworking class families in the cluster, first by family size and within theseclasses by expenditure class and within these by the State of origin. Asimple systematic sample of 20 working class families was drawn from thisarranged list. Every fourth family in this sample was contacted for fillingSchedule ‘B’ (on Level of Living) and the remaining three were for Schedule‘A’ (on Family Budget). That is the nature of the procedure adopted inselecting the families for sample survey and determining the size of thesample. The sample survey was designed to cover a period of 12 months ateach centre. At Ahmedabad centre, the work was carried on betweenAugust 1958 and July, 1959. The method of survey was the “interviewmethod”. The questionnaire which each Investigator adopted covered a widerange of subjects, accurate replies to some of which could not be hadwithout explaining the significance of the questions to the persons

concerned.

50. The population of Ahmedabad is about 11.5 lakhs. The working classpopulation in Ahmedabad was reported to be concentrated in 13 localities.The markets predominantly patronised by the working class population inAhmedabad were 6 and it is these markets that were selected for thecollection of retail prices for the new series of consumer price index numberfor Ahmedabad centre.

51. This summary of the Report gives us a broad idea as to the mannerin which and the method by which the investigation was made whichultimately led to the construction of the consumer price index number.

52. Reverting then to the objections raised by the appellants that the sizeof the sample was inadequate and the method of investigation was inappropriate, can it be said that the Industrial Court was in error in holdingthat these objections were not valid? In dealing with this question, it isnecessary to bear in mind that the size of the sample has to be determinedin the light of the permissible margin of error in the resulting series ofconsumer price index numbers. As Dr Basu has observed: “In our country,this permissible margin of error in the index has been broadly set at 2 per

cent 7”; and that is not contradicted by the opinion of any other Expert. Thesample of consuming units has to be selected by the application of scientificsampling techniques; and there is no doubt whatever that during the last 40years, this branch of human knowledge has made remarkable progress.The optimum sample design is now worked out by competent statisticiansin the light of the available material and requirements in each case, and asDr Basu has observed, “the desired data are secured at minimum cost andat an evaluation of sampling errors in the estimated data obtained from thesurvey”. It is the quality of the survey that is more important, not so muchthe size of the sample or the number of families with whom investigationwas made.

53. On the question about the adequacy of the sample size selected forinvestigation on the present occasion, it would be material to refer to theopinion expressed by Moser on this subject. Says Moser:

“Most people who are unfamiliar with sampling probably averest theimportance of sample size as such, taking the view that ‘as long as thesample is big enough, or a large enough proportion of the population isincluded, all will be well. The fallacy in this is clear as soon as one looks’ atany standard error formula, say (5.1) on p. 61 above. If the population islarge, the finite population correction N — n/N — 1 practically vanishes andthe precision of the sample result is seen to depend on n, the size of thesample, not on n/N, the proportion of the population included in the sample.Only if the sample represents a relatively high proportion of the population(say, 10 per cent or more) need the population size enter into the estimate of

standard error 8.”

Mr Kolah for the appellants has not cited before us the opinion of any Expertto the contrary.

54. Considering the question from a commonsense point of view, it seemsto us reasonable to hold that if the quality of investigation has improved, and

the method of working out the sample survey has made very greatprogress, then it would not be correct to say that because the size of thesample in the present case was smaller as compared to the size of thesample taken in 1926-27, the inadequacy of the size on the subsequentoccasion introduces an infirmity in the investigation itself. That is the viewwhich the Industrial Court has taken, and we see no reason to differ from it.

55. At this stage, it would be interesting to consider the comparativecontents of the basket as it was devised in the two respective enquiries, onheld in 1926-27, and the other in 1958-59. The former enquiry reflects theconsumption pattern of the working class as it existed in 1926. The indexnumber then devised was composed of five groups viz. (1) Food, (2) Fueland Lighting, (3) Clothing, (4) House rent, and (5) Miscellaneous. The foodgroup in its turn consisted of 16 items; the fuel and lighting group of 4 items;the clothing group of 7 items; the house rent group of the item of house rent;and the miscellaneous group of two items viz. bidis and soap. Thus, in all,30 items were included. These items represent 82.82 per cent of theaverage monthly expenditure, and they were respectively assigned 58, 7,10, 12 and 4 weights which together aggregate 91. At the time of thisenquiry, the items included in the investigation totalled 49; out of them, 30were priced and 19 were unpriced; and in respect of the latter, the method ofimputation was adopted. This series was prepared after collecting thebudgets of 985 families when the estimated population of the city ofAhmedabad was 2,90,000.

56. The new series is based on the enquiry into 722 working classfamilies conducted in 1958-59 when the total population of the city wasabout 11 lakhs. The total working class families at this time were estimatedto be 51.5 thousand; and so, the percentage of the sample size in relation tothe universe of the working class families would come to about 1.4 and notless than .5 as appears to have been assumed by Mr Gokhale. Theweighting diagram for the new series is based on 110 articles divided intothe main groups of food, fuel and lighting, housing, clothing, andmiscellaneous. The important groups in this enquiry carried respectively theweights of 64.41, 6.22, 5.05, 9.08, and 15.24 which aggregate to 100. Thetotal number of items included in the basket was 239. Of these, 89 werepriced items and 150 unpriced, and in respect of the latter, the method ofimputation was adopted. It is true that in the new series, the unpriced itemsare considerably more than in the earlier one; but it must be rememberedthat it is not so much the number of items that makes the difference, but thepercentage of expenditure on unpriced items to priced items. The totalexpenditure of all items in the 1926-27 enquiry was Rs 36.01 of which Rs32.35 was the expenditure on priced items and Rs 3.66 was the expenditureon non-priced items. In terms of percentage, the expenditure on priceditems to total expenditure was 89.8 per cent and expenditure on non-priceditems to total expenditure was 10.2 percent. In the latter enquiry of 1958-59,the total expenditure on all items was Rs 139.06. Of this, Rs 124.91 was theexpenditure on priced items and Rs 14.15 was the expenditure on non-priced items. In terms of percentage, the first expenditure was 89.8 per centand the second is 10.2 per cent. Thus, it is clear that the expenditure onunpriced items in the present enquiry is not larger than in the former enquiryat all. The fact that the components of the basket have considerably

increased, cannot be a matter of surprise, because with the growth of Indianeconomy and the change in the standard of living of all citizens, therequirements of the working class have also increased and the componentsof the basket which was devised in 1926-27 have now become completelyobsolete. It is in the light of this position that we have to consider whether theappellants are justified in contending that the inadequacy of the size of thesample vitiates the enquiry. In our opinion, the answer to this question mustbe against the appellants.

In view of the guidelines of NCBC the commission was perfectly justified in coming

to the conclusion that these insular occupational groups are backward socially and

educationally. Mr Anantaram, who was to survey the entire population of the State and

identify the backward classes amongst them, collected statistics only, whereas APCBC

has interviewed and collected data from so many house-holders, compared to the

population of the State. The data collected by Mr Anantaram, was held to be adequate.

The sample survey conducted by APCBC and data collected by it can be said to be

adequate, when nothing contra forthcoming. It is well to remember the observations of the

Supreme Court in Indira Sawhney case wherein the Apex Court refused to go into the

question of adequacy or otherwise of survey and in fact held that so long as the criteria

adopted by a Commission appointed for identifying the backward classes adopts a rational

criteria and procedure, Courts cannot find fault with the same on the ground that there

could have been better criteria. The Apex Court also held in the said case that adequacy

of material will not be looked into by the Courts, so long as material is available, which

points to the backwardness of the communities so identified, the same would be good

enough.

The Apex Court in Indira Sawhney case held that the test for undertaking a judicial

review of such actions, is the test as laid down in Barium Chemicals (cited supra).

Applying the principle in Barium Chemicals case, I find it difficult to accept the contention of

the learned counsel for petitioners that the guidelines evolved by NCBC as adopted by

APCBC was not rational and data collected is too meagre to give any indication of

backward classes of the groups identified.

One another contention of the learned counsel for petitioner is that the method

adopted by the Commission shall be scientific and error-proof. In my considered view, this

aspect is no more res-integra, inasmuch as the Apex Court in Indira Sawhney case

approved the findings of the judgment in U.S.V Balaram’s case (cited supra) that despite

all the efforts, the Commission while collecting the material and data in matters of this

nature, the conclusions cannot be scientifically accurate and the proper approach would be

only to see whether the relevant data and material referred in the report of the Commission

justify its conclusions. The Apex Court in Indira Sawhney case dealt with the alleged

draw backs and flaws in the survey conducted by the Mandal Commission and held at

para 857 that the rule of law is meant to enable the law to promote social goal and should

not be lightly used to nullify the social justice and that sacrificing too many social goals on

the alter of rule of law, may make the law barren and empty. The Apex Court, realized

and recognized in Indira Sawhney case, that there cannot be an exercise of identifying

backward classes with mathematical precession and scientific. In view of the task

entrusted to Commission the emphasis of the Apex Court in Indira Sawhney case (see

para 857) was that the Courts while dealing with the dispensation of social justice

measure, may not entertain trivial and technical pleas, which may look attractive, as

entertaining such trivial grounds would mean to ignore the State’s constitutional obligations

to achieve the goal of equality.

Yet another contention of the learned counsel for petitioners is that B C Commission

has undertaken no exercise whatsoever except relying on Mr P S Krishnan’s report. A

reading of B C Commission report, would definitely show that B C Commission extensively

relied on Mr P S Krishnan’s report. However, it is not correct to contend so inasmuch as

the Commission has followed fast track and rough and ready methods and in fact

conducted its own survey, besides relying on the report of M.V.Krishnan.

Further, I see no illegality in B C Commission relying on the report of

Mr P.S.Krishnan, which is a report furnished after through study on the subject. The

Commission cannot be found fault within relying on the said report, as what is made is

important is to find out and identify the backward classes amongst social groups of

muslims and to do so and report on material which has direct bearing on the subject can be

relied on. When the purpose, goal and object of the said dispensation in this regard is to

identify such social groups of Muslims who would answer the description of social and

educational backward classes who were denied such dispensation for all these years, the

Commission can rely on the material supplied by Government and the survey conducted

by itself. As long as the Commission has taken note of relevant material by adopting a

rational criteria, by conducting reasonable survey, it is not open for the petitioners to

contend as to what material should be considered and what material to be ignored by the

Commission and how much material would be sufficient. It is also relevant to note that the

government upon receiving the report from Mr Krishnan, forwarded the same to B C

Commission for its consumption. The government has not thrust Mr P S Krishnan’s report

on B C Commission, directing the Commission to follow the same. This would show that it

was not the intention of the Government to influence the commission by supplying the copy

of Mr Krishnan’s report. The B C Commission upon receipt of the report of Mr P S

Krishnan from the Government, conducted its own enquiries and after through study of all

the material available with it, and after being satisfied that the identified groups deserve to

be included in the backward classes submitted its report to the government,

recommending the same. Therefore, it cannot be said that the Commission has no other

material in support, except that of Mr P S Krishnan’s report.

Yet another ground of the learned counsel for the petitioners is that Mr P S

Krishnan wholly relied on the report of the Anthropological Survey of India (for short ASI)

and material from other sociological and anthropological experts and that there was no

independent survey conducted by Mr P S Krishnan and therefore no credence can be

given to Mr P S Krishnan’s report and consequential report of B C Commission on which

the whole reliance was placed on. Therefore, it was contended that Mr Krishnan’s report,

cannot be the basis for enacting impugned legislation. Mr P S Krishnan is bound to rely on

the earlier studies made by other sociological and anthropological experts which is not only

relevant but has a material bearing. Mr Krishnan was to discover whether various social

groups of muslims answer the description of socially and educationally backward classes

having regard to their historical and sociological background and their present position in

society. A reading of Mr Krishnan’s report would show that though he relied on the

information of experts on the subject and the report of ASI, it is also based on personal

interaction by the members of the communities regarding whom there is a discussion. He

submitted his comprehensive report after undertaking proper assessment of the material

gathered by him. It is not as

if Mr Krishnan is inventing a new theory and has to necessarily rely on historical,

sociological and anthropological studies which were conducted by eminent sociologists

and anthropologists to come to the conclusions he has arrived at. The studies conducted

by the sociologists and anthropologists are based on the ground realities which have not

changed even after sixty years of independence as this particular segment of the society

was totally ignored all these years, though, their counter parts amongst the Hindus were

getting the benefit of affirmative action under the constitution. It is well to remember that

though ASI in Peoples of India series was not prepared in the context of Articles 15 and 16,

as the very study is based on anthropological survey dealing with social status of various

groups and would throw light as to how the concerned social groups were socially

backward, the said report has direct nexus in the matter of identification of socially and

educationally backward classes amongst the muslims. The ASI reports deals with the

social conditions prevailing in social groups leading to social stratification and therefore

reliance placed on ASI report by Mr Krishnan to the extent of identifying the existence of

such backward classes homogeneous groups in muslim community cannot be found fault

with. It has been uniformly held by the Apex Court and reaffirmed in Indira Sawhney case

that social backwardness leads to economical backwardness and economical

backwardness leads to social backwardness and that it is a vicious circle. A group of

persons or community which is socially backward and stigmatized cannot be expected to

move forward and become educationally and economically forward. This is a fact of life

cannot be lost sight of and of which judicial notice can be taken note. As ASI report gives

material about the social conditions of known identified groups and therefore that the said

material is taken note of and in the absence of any contra evidence to the existing ground

realities and the indicators to find out about social backwardness, what emerges is a

socially and educationally backward classes answering the description of socially and

educationally backward classes who are entitled for affirmative action by the State.

It is necessary to understand that the present case deals with that affirmative action

of the State in discharge of its constitutional obligations for those who are denied all these

years the dispensation in this regard and therefore, what is relevant for the State is to arrive

at a conclusion that an particular group deserve dispensation under Article 15 and 16 and in

the process the State is obligated, under the Act of 1993 to take recommendations from the

B C Commission and gather necessary information and material from various sources and

the effort of various authorities involved in the said process is to identify and determine the

existence of a particular socially and educationally backward classes. In this view of the

matter, the contention of the petitioners that a particular material cannot be relied on in the

present case the ASI report, though it has direct nexus to the above said exercise, is not

only untenable but trivial. In Archana Reddy case, a bench of five Judges of this Court, in

fact, referred to Peoples of India series and felt that the Commission ought to have referred

to the said report for coming to a proper conclusion as to the existence of insular groups

within Muslim society. It is true that Mr P S Krishnan has not

done any statistical survey but the same does not in any way make the report irrational or

unreliable. He was only identifying the existence of insular groups in Muslim community

which are socially backward in the Muslim community and type of their educational

backwardness or inadequate representation of those groups in public employment, re-

emphasizing the existence of backward classes. Before submitting his report, he has

gathered enough material from unimpeachable evidences and made his own study.

One of the contentions of the petitioners is that the effort of the State in requesting

APCBC to submit a report on socially and educationally backward classes, about insular

groups amongst Muslims is religion specific in the context of the fact that the number of

communities and groups who have filed representations before APCBC since 1994 are

pending consideration. It is contended that act of the State in including socially and

educationally backward groups in separate group as B.C.-E instead of putting them in the

already existing A,B,C,D groups of backward classes in the State, shows that the said

action is aimed at a particular religion and therefore religion specific. It is the contentions of

the petitioners that it is in violation of Article 16 (1 ) 16 (2) and 15 (1) of the Constitution of

India. A careful reading of Article 15 and 16 of Constitution of India, would clarify that the

said articles prohibit discrimination ‘only’ on the ground of religion, caste etc. Though, it

might look in the first blush that the present State affirmative action is aimed at considering

only Muslims. The reason behind is not to make the said State affirmative action only

based on religion but having regard to the historical background of the said religion and the

way in which they were denied the benefits under the Constitution in this regard. It is not in

dispute that Muslims in the country in general and in the State in particular have not

received the same attention as their Hindu counter parts. A reading of the earlier reports

would show that they were denied the said benefits with wrong impression that no caste

stratification exists in Muslims. However, the Apex Court, categorically held in Indira

Sawhney case that even the other religions including Islam suffer the malady of caste

stratification. In other words, till recently occupational and social groups in Muslims were

denied the benefit, all these years and now that it is judicially recognized that muslims

have the caste stratification, it has become necessary to have a proper look into their

claims and therefore confining the consideration only to muslims cannot be said to be

discriminatory and violative of Articles 16 (1), 16 (2) and 15 (1) of Constitution. Delaying

and denying the claim of the muslims any further, as the matter of fact, would be

unconstitutional as their rightful claims or rights have been denied all these years, while

their counter parts are enjoying the said benefits. Therefore, the contention that the present

action is religion specific is untenable. The further contention that while other claims are

pending, considering the claims of certain groups of muslims alone, as violative of Article

14 and is also would amount to religious specific, cannot be countenanced. In fact, this

contention was rejected by this Court in Archana Reddy case.

It has been pleaded for the petitioners that carving out a separate groups for muslims

i.e., B C –E instead of adjusting now identified groups into already existing groups i.e., BC-

A, BC-B, BC-C and BC-D, is religious specific. If newly identified groups are now included

in the existing backward class groups, it would unnecessarily create unrest among already

existing groups and lead to spate of litigation, thereby again delaying the affirmative action

for those who are deprived the same all these years. If newly identified groups are added

with already existing groups, the newly identified groups cannot compete with the

persons/citizen who are already enjoying the benefit of reservation as they would have

moved upward when compared to now identified groups. Therefore, providing affirmative

action for certain social groups of muslims and carving out a separate group for them is in

the best interests of all the sections and to avoid any further delay for such of the groups

who were denied the benefit all these years is well founded, and the said plea that the

present State affirmative action is religion specific, on that count is liable to be rejected.

It is contented by the petitioners that when the earlier commissions have not

identified the now identified groups as backward classes, there is no justification for B C

Commission to identify and for the State Government to accept such recommendations.

The earlier Commissions appointed by Government of A P like Mr Anantaraman

Commission and Mr Muralidhar Rao Commission did not identify any insular groups within

muslim community, it cannot be treated as socially backward, therefore identification done

by the B C Commission, cannot be considered to be valid. In this connection, the

predominant view of both the earlier commissions, is that Islam is a religion based on

brotherhood and no discrimination is practiced based on their occupation or profession

which they have carried from their erstwhile religion i.e., Hinduism. This was due to lack

of in-depth understanding of the present state of islam and historical fact of conversion in

this country, particularly in this state and the continuity of low profession and consequential

stigma which they carried into Islamic society. On the other hand, sociologists,

anthropologists and historians of the Islamic origin of Islam in this country, its

development, conversions etc have always pleaded based on their research that there is

stratification in Islamic society and stratification is based on occupations which they were

into prior to their conversions which were looked down upon by the then Hindu society, and

that Islamic society nevertheless stratified in this country and stigmas continue, if not with

the same vigor as in the Hindu society. The stigmas are evident and compounded by the

fact that such insular groups remain in endogamous in nature which fact was taken note

by the Apex Court long back and reaffirmed in Indira Sawhney case. In fact, contra, this

Court in Archana Reddy case struck-down the Act on the basis that no effort is made to

find out that there are insular groups in the Islamic society and the efforts would have

revealed the existence of stratification and occupational groups within Islamic society. The

Government of A P also recognized the fact that in view of the information that it had that

the social stratification in Islam society in the state exists quite similar to that of Hindu

Society and such stratification has resulted in some occupational groups remain socially

and educationally backward, therefore sought opinion from the APCBC. The lack of in-

depth knowledge of Islamic society has caused greater injustice for over 60 years though

they suffered from same inequalities and backwardness as their counter parts in Hindu

society. A reading of Mr Anantaraman and Mr Muralidhar Rao reports show that the said

two commissions did not go by any ground realities and indepth reading of the Islamic

society. APCBC and Mr P S Krishnan have carried out an indepth study of Islamic

society and have identified social groups within the said society which are backward both

educationally and socially. Therefore, the same cannot be found fault with on the ground

that the earlier Commissions did not identify such social groups, more so, when the

identification done by APCBC is in consonance with writings of scholars of Islamic

society.

The identification of social and educational backwardness is a continuous

process and the indicators or the parameters to identify such classes of citizens vary from

time to time. What is important is to identify the socially and educationally backward

classes at the relevant period of time while identifying the backward classes the

commission is not expected to make comparative assessment between the identified

groups or groups which are to be identified and other groups. What is required to be

identified is whether by virtue of vocation or profession that they are carrying, do they suffer

any stigma or looked down upon by the society in general. If it is established that the

vocation or profession that they are practicing has resulted in being looked on as an

unclean profession of undignified profession , it is good enough to identify the class of

persons carrying on that particular profession as socially backward. The educationally

backwardness of the representation of the public servants is a different question altogether,

for which finding an empirical exercise can be carried out.

On the contention of the petitioners that B C Commission conducted a survey at

irrelevant places it is seen that the survey teams visited various places and found no

contra evidence that the now identified groups are forward. It is not the contention of the

petitioners that no survey was conducted and that the report based on such survey is a

fabricated one. The petitioners have also not produced any material to show that if the

survey teams visited the places where groups are generally inhabited, the survey would

have revealed that the identified groups are forward or does not satisfy the criteria. It is not

even the case of the petitioners that the places where the teams visited, the concerned

identified groups are absent and as per the survey the survey teams could meet the people

belonging to concerned group in which the survey was conducted and only upon interacting

with them and gathering information, keeping in view the indicators and questionnaire , the

B C Commission recommended the said groups to be included in the list of backward

classes. Merely on the ground that the survey team could have visited the places where

the people belonging to now identified groups normally reside, the survey conducted cannot

be ignored, more so, when there is no contra material produced by the petitioners and

when it is not even the case of the petitioners that the survey conducted was only a make

believe survey without actually conducting a survey. The survey that was conducted

yielded certain results and it is not open for the petitioners to find fault with such survey and

recommendations of the B C Commission based on said survey by examining it under a

microscope. As held by the Apex Court in Indira Sawhney case, in-sufficiency and

inadequacy of material gathered in the survey cannot be the basis for the Courts to interdict

the State affirmative action, therefore this contentions is liable to be rejected, and hereby

rejected.

Similarly, the contention that the present survey was not conducted by the members

of B C Commission but was conducted by staff of B C Commission and therefore no

reliance can be placed on such survey by B C Commission for arriving at its conclusion,

need to be rejected, inasmuch as the petitioners have not brought to the notice of this

Court, any provision to the effect that the survey has to be conducted only by the

members of B C Commission themselves. At any rate, in the matter of this nature, it is

not possible to accept the contention of the petitioners that the survey has to be conducted

only by the members of the B C Commission without any assistance or delegation.

Accepting such contention would lead to delay in State affirmative action. If the

Commission has though it fit to take the services of its staff by providing them necessary

indicators and questionnaire to conduct the survey, so that the Commission can finally

evaluate the same and submit its recommendations, the same cannot be found fault with.

What is necessary in the whole process is whether the Commission has taken relevant

material into consideration before arriving at its conclusions. The Apex Court in Indira

Sawhney case held that the State’s affirmative action in this regard shall not be interfered

or interdicted on trivial grounds and by picking the wholes in the process of identification of

the backward classes.

It is contended by the learned counsel for petitioners that the enquiry conducted by

APCBC is not sufficient to find out the social backwardness of the classes of people

recommended for inclusion in the B C List and insofar as social backwardness is

concerned, apart from the report of Mr P S Krishan, there is no other material available with

APCBC. In the absence of any material to judge the social backwardness of the classes

of people, the whole report is illegal and could not have been relied on by the State to pass

the impugned legislation. It is needless to address that the social backwardness is a

concept which may not come out with empirical data which is historical in nature and has

to be done by an indepth analysis. It is seen that Mr P S Krishnan, has studied

elaborately the historical counts of Islamic society in the state , development and the

social stratification that has taken place. One would see from the classes that are now

identified that most of the classes are from Hindu society, practicing low and undignified

professions, suffering from social stigma, though not being untouchable, of being looked

down upon and they carried the same profession and continue with the new religion

suffering the same disadvantages. It can be automatically said by various books referred

by Mr P S Krishnan in its report and by the Commission that these classes are socially

backward. The Apex Court in U S V Balaram’s case (cited supra) (see para 75), in K C

Vasantha Kumar case (cited supra) and in Indira Sawhney case took judicial notice of the

fact that a certain class of persons practicing a particular profession or avocation can be

readily said to be without any further enquiry as socially backward as the profession which

they practice under the name by which they are known itself evokes social

backwardness. It is an accepted fact that for the purpose of identifying a class of persons

like belonging to the profession of Dhobi, Nai or Stone Cutter, one need not search for

social backwardness. The social backwardness is crystal clear in the context of the Indian

society which has inherited by the social background.

I have perused the report of Mr P S Krishnan and the report of the APCBC and some

of the books referred and relief on by them as well as the ASI People of India series. It is

clear from the reading of these reports that the communities now identified as socially

backward can be identified as socially backward. Keeping these factors in view, NCBC

has evolved a criteria for identification of socially backward classes of people. The queries

posed to the individuals and the answers that they received from such individuals, would

clearly support the conclusion of the learned authors as well as Mr P S Krishnan and

APCBC that these communities are socially backward and cannot be treated as anything

over that.

It is significant to note that none of the writ petitioners have in their pleadings stated

or produced any material to show that any of the classes of people now included in the list

of backward classes could not have been considered as socially backward. It is true that

B C Commission could have carried out a larger exercise for a longer period of time but the

question is as to what purpose, more so, when these classes were denied the benefit for

over sixty years and any delay would only cause further injustice to those classes. These

classes of people have been ignored for so long, merely because of the general or popular

perception that Islamic society is egalitarian. The historical aspect of advent of Islam in the

country and its large scale conversion that have been taken place over the century from

lower strata of the society and the sociological aspect of the question as to by more

conversion whether one would attain a higher status in the society or whether one would

continue to suffer the same inequalities in spite of such conversion was totally ignored and

lost sight of. Therefore the contention of the petitioners that as already pointed out supra,

the questionnaire of NCBC which was prepared by expert body and which has formulated

those questions after studying various judgments of the Supreme Court and study of

various reports and out of its own experience and the answers to such questionnaire read

with authoritative accounts of Islamic society in the country , could clearly establish that the

classes presently identified are backward classes.

Further the Apex Court in Indira Sawhney case held that there is a direct nexus

between caste, occupation and poverty (para 779). It was also held that social

backwardness and educational backwardness would lead to poverty and three of them go

hand in hand (para 788). Justice Sawanth in his concurring opinion at para 482

expressed the same view. Now identified groups are such who can be identified as

socially backward classes straightaway but it is seen from the record that instead of

identifying them as socially backward straightaway, necessary studies have been

conducted and necessary material was gathered by the Commission before submitting its

report to the Government. After being satisfied that such groups require affirmative action

by the State, the State Legislature in its wisdom though it fit to enact the impugned

legislation.

It is contended by the petitioners that there was no proper consideration of the

educational backwardness of the identified groups inasmuch as no material was gathered

by the Commission from the schools with regard to the said identified groups of muslims

community failing to appreciate that no mention would be made, about their occupational

group in the school record, inasmuch as there was no identification of such social groups

earlier. As mentioning of their social groups would only not be of any use, the concerned

individuals would mention that they profess religion of Islam without giving details about to

which social group they belong. In this view of the matter, the school records would not

give any information or material with regard to the said groups and therefore, the contention

of the petitioners that the Commission could have taken the information from the schools to

find out about their educational backwardness is like asking the Commission to do an

impossible task. It may be relevant to note that as per NCBC guidelines which were

adopted by B C Commission, with regard to education gathering information about SSC is

only one of the considerations and as clarified by NCBC guidelines, the criteria evolved

and questions framed by NCBC need not be cumulative and therefore even in the absence

of information with regard to SSC as long as the other relevant material is gathered, as per

NCBC guidelines, non availability of SSC records cannot be construed as fatal. It is

necessary to note that the now identified groups fall under fast track and rough and ready

methods and as they are found to be socially backward and as the material gathered

during the survey corroborate justified that they are backward, it cannot be contended that

educationally backwardness of the now identified groups was not properly considered. The

information gathered with regard to literacy levels of the identified groups would fall within

the criteria prescribed by NCBC. In Ashok Kumar case ( cited supra) the Apex Court

held that for determination of the educational backwardness the relevant stage now is

graduation (para 212). The apex Court was of the view that after several years of

independence, the educational backwardness cannot be determined based on primary and

secondary education. The report of B C Commission would show that the drop out level of

now identified groups even before completing SSC is very high and therefore they cannot

be considered that they are educationally forward. It is held by the Apex Court in Mandal

Case that social backward ness leads to educational backwardness and therefore, if a

group is identified as socially backward the natural corollary to that is that they would be

backward educationally also. I have already held above that the now identified groups are

socially backward having regard to the material gathered and by application of indicators

/criteria adopted by NCBC and the mandal commission i.e. fast track method and rough

and ready method respectively. It is reiterated that the Apex Court in Indira Sawhney

case held that socially backward classes invariably leads to educational backwardness

and once the now identified groups are held to be socially backward, by no stretch of

imagination they can be treated as educationally forward. The Commission has not

ignored the need to survey about the educational backwardness though the identified

groups can straightaway be considered as socially backward classes. It is not even the

case of the petitioners that the Commission has not conducted any survey with regard to

the educational backwardness and the report of the B C Commission would clearly show

that the material was gathered to show that identified groups are not only backward socially

and educationally. It is also reiterated that how much material would be sufficient to arrive

at a particular conclusion, cannot be undertaken by this Court and it is not open for the

petitioners to find fault with the exercise of the Commission at every step on trivial and

technical grounds. Therefore, it can in no terms be accused of that there was no material

to identify the now identified groups as educationally backward.

It is further contended by the counsel for petitioners that B C Commission has not

taken note of the student’s strength in muslim minority in the professional colleges while

assessing the educational backwardness of the now identified groups, therefore the

process undertaken by B C Commission is vitiated. For the very same reason given with

regard to not gathering the information as to SSC, the muslim minority institutions also

would not have the details of the students as to which particular occupational group of

muslims they belong. Therefore, the question of gathering information as to how many

students of now identified muslim groups are studying in muslim minority institutions, would

not arise. The petitioners are expecting the B C Commission to undertake a task which is

not possible to perform in the first place. The data collected in the survey by the B C

Commission would show that the percentage of drop outs even before reaching SSC level

is high, therefore the question of candidates of such groups reaching the stage of

professional studies is a far fetched argument. This court can take judicial note of the fact

that only well to do students alone can enter into the professional colleges and therefore

most of the muslim students entering into muslim minority institutions are bound to be

from affluent sections of muslim community and it is highly improbable that candidates

from now identified groups who are socially backward could have joined such muslim

minority institutions. Therefore, this contention cannot be accepted and is rejected.

Yet another contention of the petitioners is that there was no information with regard

to seven groups out of 14 identified groups about inadequacy of representation in public

employment under Article 16 (4). It is true that with regard to seven groups, there was no

information as alleged. The Commission has taken note of the fact that the muslims as a

whole in public employment is much less in comparison with their population, this has

remained unrebutted. When that is the situation, it is highly improbable that now identified

muslims who are socially backward are more in number in public employment. When the

very percentage of muslims in public employment which includes forward class muslims is

less than their population, the question of now identified occupational groups adequately

representing in public employment would not arise. As already observed above, the drop

out level at high school level for the now identified groups is so high and therefore it is

beyond imagination that the candidates belonging to such socially backward classes are

adequate by representing in public employment. Further this Court can take note of the

fact that muslims are mostly employed in lower echelons of public services and very

small extent of persons only occupy class I and Class II group jobs. The Apex Court in

Ashok Kumar case held that adequate representation in public employment means

quantitative representation but not qualitative inasmuch as public employment in lower

echelons would not make a group to move forward. The petitioners also did not produce

any contra material before this Court to show that the above referred seven groups are

adequately represented in the public employment, therefore, this ground does not merit

consideration and cannot be accepted.

The further contention of the petitioner that two out of 15 identified groups viz.,

Guddiyelugulavallu and Gosangi, there was no survey at all

by the B C Commission and therefore in the absence of any data whatsoever, identifying

those two groups as backward classes is irrational and therefore vitiated. In this regard,

those two groups fall under fast track and rough and ready methods. It is now judicially

recognized that certain castes are such that they can be straightaway to be included by the

very mention of their occupation. In view of the fact that the said two groups amply answer

the parameters of socially and educationally backward classes, no further enquiry is

required and it is for the Commission to decide whether to conduct any further enquiry and

if it has to be conducted, to what extent. It is true that most of the other identified groups

also would fall either under fast track method or under rough and ready or under both. It is

for the Commission to see whether a further enquiry is required though it falls under fast

track and rough and ready methods. The Commission has not come across any contra

evidence/material against the above said two groups and therefore recommended their

inclusion in the backward classes. It is relevant to note here that the petitioners have also

not produced any material before this Court to substantiate that these two groups are

forward socially and educationally. It is pertinent to note that Gosangi is a small

community living around muslim grave yards and eking out their livelihood by begging for

alms from those who come to burial grounds. The counter parts of Gosangi amongst

Hindu community also known as Gosangi are included in the list of Schedule Caste. It is

pathetic that 60 years after independence persons whose traditional occupation is

continued in spite of their conversion to Islam, are not treated even as backward classes.

It is seen from the report that the BC Commission has taken note of the background of the

community and recommendations of Mr P S Krishnan and recommended in favour of

Gosangi-muslims for inclusion in backward classes. Similarly, Guddelugulavallu is a

nomadic community eking their livelihood with the help of tamed bears. As per the

guidelines of NCBC, they can be treated as socially and educationally backward without

any further enquiry. It may be noticed here that entertaining people with the help of wild

animals is prohibited in this Country and therefore they have lost their livelihood. Hence, in

my view it is not necessary for the BC Commission to conduct any sort of enquiry in such

cases as by very mentioning of their profession, they can be treated as backward classes

as has been held by Apex Court in K C Vasantha Kumar case (cited supra).

It is contended by the petitioners that item no. 15 in the list recommended by APCBC

there is no rational and no legal basis for such inclusion. It is further contended that

inclusion of all muslims excluding those who are found to be socially and educationally

advanced would lead to conversion to muslim religion to avail the benefit of such

reservation. The B C Commission having conducted a survey identified 14 homogeneous

groups as socially and educationally backward but also identified groups which are

considered advanced and do not require the benefit of affirmative action. It is

recommended that the B C Commission took note of the fact that there could be number of

such similar groups which have not come to its notice carrying on traditional occupations

inherited from the previous professions who have not come forward for requesting the

commission for inclusion of their class into backward classes list and some of such groups

mentioned in the District Gazetteer and in some of the provinces, keeping the same in view

and to help such similar classes of people who are homogeneous in nature of other

muslims excluding those identified as socially and educationally as advanced, are given

the benefit of inclusion in the list of backward classes. It is necessary to point out that

petitioners have not come forward with a plea that there are no such groups socially and

educationally forward. At any rate if any community or homogeneous class is given the

benefit by virtue of entry 15 in the list, it is always open for the petitioners or any other

interested to approach the B C Commission for exclusion of such classes of persons and

B C commission will have to look into such complaints and adjudicate the matter. It is

necessary to note that Kerala state has been having reservation for muslims as a whole in

one part of the State and Mappilas (muslims) in another part of the state from early 1930

onwards. It is the duty of the state as held by Apex Court in Indira Sawhney case to cover

the entire population so that no group is left without a proper insight into their claim.

Similarly in Karnataka state, there is reservation for muslims as a whole. The contention of

the petitioners that there is likelihood of mass conversion by unscrupulous elements by

reservation given under the category 15, is only stated to be rejected. At any rate, it is

settled law that likelihood of a statute being misused cannot be a ground for striking down

the Act. It is necessary to point out that if such conversions took place, I am sure the

petitioners or any such other interested citizen can point out the same to the State

Government and on such complaints, the State would take notice of such conversions and

take appropriate remedial action. Therefore, it is not possible to accept the contention of

the petitioners on either of the grounds with reference to entry 15, on mere apprehensions.

Now the further contention of the petitioners that there is no basis or justification for

providing 4 % reservation to BC –E category. In this regard, it is not in dispute to state that

the population of muslims of the state is

about 9.17 %, and the SC/ST and OBC put together among the Hindu community

constitute 75.8 % of the total Hindu community. On comparison, 75.8 % of the muslims

would work out to 6.97 % of the total state population of muslims. The muslim social

groups which are already included in the BC list prior to impugned Act would worked out to

be 1.79% as per Sachar Committee report, therefore Group-E social groups would

constitute atleast 5.18 % of the total population, hence providing 4 % reservation cannot be

construed as irrational. Viewed from the percentages referred above, I see no reason to

hold that 4 % reservation for BC-E category is irrational.

The report of A.P.Commission for backward classes consists of six chapters,

which are as under;

1. Introduction

2. Constitutional provisions

3. Methodology of the Commission’s Report

4. Statistics regarding Muslim communities

5. Survey and analysis of the identified social groups

6. Recommendations.

In chapter 1, the Commission dealt with the constitutional obligation of the State

and the earlier litigation before this Court in Archana Reddy case and about appointment

of Mr P S Krishnan, as adversorial . It referred to the fact of submission of report by Mr P

S Krishnan, which in-turn was communicated by the Government to B C Commission for

its examination. The Commission acknowledged the work undertaken by Mr P S Krishnan

and it was further stated that B C Commission conducted its own survey, besides taking

note of the data available in Anthropoligical Survey of India Series published in the year

2003.

In chapter 2, the Commission referred to the relevant articles of Constitution of India

i.e., Articles 15 and 16 and their scope. The consequence of socially backward classes for

providing the benefit under Article 15 and 16 was also discussed and stated that socially

backwardness is the ‘outcome of socio-historical process over the centuries’. The impact

of traditional occupations on the socially backward classes was also discussed by the

Commission. The judicially recognized fact that the social backwardness leads to

educational backwardness which in turn leads to poverty and that all the three support

each other in a downward spiral and the fact that the socially backwardness automatically

leads to educational backwardness. The Commission referred and recognized various

principles laid down by the Apex Court in Indira Sawhney case, which has nexus to the

task undertaken by it. A careful reading of chapter 2 of Commission would show that the

Commission was well informed about the legal principles as enshrined by the Apex Court

in Indira Sawhney case and that it is aware of the functions entrusted to it. The

Commission stated in chapter 2 that the Commission has arrived at the findings based on

the data collected and keeping in view various reports and the legal principles evolved by

the Apex Court in this regard.

In chapter 3, the Commission dealt about the methodology and noticed that in view

of the reference of the Government dated 17.4.2007 with regard to all the Muslim groups

which are identical as social and educational backward classes, the exercise has become

larger and need not be confined only to the pending claims of seven occupational muslim

groups. The Commission then referred to various dates upon which public hearings were

held and about keeping Mr Krishnan’s report on the website for public information and

seeking for views and suggestions from the concerned. Then discussed about the second

round of public hearing. The Commission categorically referred that NCBC guidelines

were kept in view, with regard to the guidelines and questionnaire etc, especially with

regard to fast track method and also shift and ready method evolved and adopted by the

Mandal Commission. The B C Commission clarified that it relied on the reports of Mr P S

Krishnan, Sachar Committee and Ranganatha Misra commission. The Commission has

recorded that the whole atmosphere was charged with pro-reservation groups which

wanted muslims to be considered as a whole and anti-reservation groups who did not

want muslims to be included in the reservation on the ground that it would upset the status-

quo. The Commission pointed out that hearings were disturbed and interrupted by the

socially advanced communities of both Hindus and Muslims, as they were against the task

undertaken by the Commission.

In chapter 4, the Commission dealt with the statistics regarding muslim community

in A P and pointed out that in almost all states occupational groups and other social groups

have been identified for inclusion in OBC list. The Commission referred to the statistics

which would show that the percentage of muslims is substantially low to very low in public

employment and in professional courses. The Commission has noticed negligible

presence of various occupational groups and other social groups working in Government

of A P and though the data available is for all the muslims put together, the Commission

has drawn a logical and reasonable deduction with the figures and percentage would be

less than the figures of all muslims pertaining to unidentified B C social groups. In Chapter

5, Commission dealt with each of the identified groups separately, which would be dealt

with separately later. In Chapter 6, the Commission submitted its recommendations for

inclusion of 14 muslim groups. The justification for incorporating item no.15 was also

discussed in this chapter. The Commission referred to the fact that the Commission is

recommending class Achukantlavandlam, though same was not part of the

recommendations of Mr P S Krishnan. The Commission also excluded certain muslim

groups as they are forward. The Commission recommended 4 % reservation for the

identified groups for pension and public employment. Insofar as Chapter 5, wherein the

Commission has dealt and discussed about each of the now identified groups, it may be

noticed that the data collected has direct nexus with the time tested guidelines issued by

NCBC in identifying socially, educationally and economically backward classes and also

with regard to the inadequacy of representation in public employment. The statistics

gathered and enumerated of each of the identified groups in our considered opinion justified

the recommendations of BC Commission, though the petitioners are insisting that this

Court may examine the exercise undertaken by the Commission and data collected by it

under a microscope on various counts, keeping in view the observations of the Apex Court

in Indira Sawhney case that in exercise of this nature of cases, there bound to be certain

errors and that the said exercise should not be scientific, in my considered view, I do want

not venture to go into minute details especially where no perversity is writ large. We may

refer here that the observations of the Apex Court in Indira Sawhney case that sacrifice in

too many social goals on the alter of rule of law, may make the law barren and empty (see

para 857),

So long as the Commission have adopted a criteria which is relevant and rational and

collected some data to justify their recommendations, it is not open for this Court to

interfere with the recommendations of B.C. Commission and/or the States affirmative

legislation. In that regard, it is true that judiciary has a role to play to avoid State’s mischief

in providing the affirmative action to those who do not deserve, however, by no stretch of

imagination, would fall under such category. The judiciary can take note of fact that the

groups now considered are such that they deserve the benefit of State’s affirmative action.

When it is a recognizable and conceivable fact that now identified groups would straight

away fall under socially and educationally backward groups/class and that they are entitled

for inclusion in the list straightaway, it is not as if the Commission and State has

straightaway included them in the list of backward classes and the material on record

would show that there was proper exercise in arriving at that conclusion. In the absence

of any contra material gathered either available with the B C Commission or with the State

and in view of the failure on the part of the petitioners to justify their claim that now

identified groups do not deserve said affirmative action, we do not feel it necessary to

interdict the said affirmative action. Here we may add that the petitioners have not

discharged their duty of burden of proof and the petitioners have not chosen to produce any

material to justify their claim that the now identified backward classes are in fact forward.

With regard to the burden of proof, the Apex Court in Indira Sawhney case (see para 705

and 706) that the burden of proof that the State’s action as unconstitutional lies on the

petitioners. In the present case, though the petitioners are repeatedly contending that the

present impugned State action is unconstitutional, they have not chosen to file any material

to show that the now identified groups do not deserve State’s affirmative action. The view

expressed by this Court in Archana Reddy case, to the extent that the burden lies on the

State, is not correct law in view of the dicta laid down by the Apex Court in in Indira

Sawhney case.

Whether the findings in Archana Reddy that when the B C Commission

undertakes the task of identifying socially and educationally backward classes, it is

required to make publication of the criteria and undertake its exercise fairly and

transparently in the manner stated therein, are contrary to the findings of the Apex

Court in Mandal case, would amount to supplanting the provisions of Act, 1993, in

view of the absence of provision in the statute.

It is contended by the petitioner that in view of the findings recorded by the Five

Judges bench of this Court in Archana Reddy case that publication is mandatory, the B C

Commission ought to have published the report. Non publication of the same vitiate the

entire exercise by the Commission and any reliance sought to be placed by the first

respondent on the report of the Commission and the consequential legislation made by the

State becoming illegal. It is contended by the counsel for petitioner that publication of the

report would enable the objectors to make suggestions for changing the criteria if they felt

that the criteria evolved by the B C Commission is irrational or will not lead to proper

enquiry, apart from enabling them to collect their own data and place the same before the B

C Commission for coming to an appropriate conclusion. Thus, they urge, that they are

denied of opportunity and the enquiry conducted by the Commission is vitiated by non

transparency which is

sine-qu-non in the matter of this nature. On these submissions, it is necessary to notice

that as A.P. Commission for Backward Classes Act, 1993 (for short the Act) by which the

A P Commission for Backward Classes is constituted, it is not required under any

provisions for the Commission to make any such publication, on the other hand the

Commission is specifically empowered to under Section 8 (2) of the Act to evolve its own

procedure. Even the Rules framed under the Act, mandate or provide for any such

publication. The Apex Court did not favour in Indira Sawhney case or in any of the earlier

cases, requirement of publication of criteria as a necessity or a pre-requisite before

submitting a report. Earlier Commissions in the State appointed by State of A P i.e.,

Mr Anantharam Commission and Mr Murlidhar Rao Commission or under Act 1993

headed by Justice Sri Puttuswamy, undisputedly was there any publication criteria. Mr

Anantharam commission and Mr Muralidhar Rao Commission, in the process circulated

questionnaire prepared by them for eliciting answers to the questionnaire and the

Anantharam Commission seems to have asked for suggestions on the questionnaire

prepared by it.

Section 8 (2) of the Act reads as under;

(2). The Commissioner shall regulate its own procedure.

As per the language used in Section 8(2) of the Act, 1993, it is clear that the State

Legislature did not want to place any fetter on the procedure to be adopted by the

Commission, even in regard to publication of criteria. The intention of the legislature

seems to my mind to be that being an independent expert body, it has to evolve its own

procedure that suits the exercise that it proposes to indicate at any given point of time.

More over, insofar as reference seeking inclusion of the classes of people in the list of

backward classes is not adversarial in nature, the entire exercise is for the purpose of

coming to an objective conclusion and identifying whether a particular class of people is

socially and educationally backward or not. It is not meant to create a adjudicative

between classes of people before the A P Commission for Backward Classes on any

dispute or lis. Otherwise, the whole exercise by B C Commission would become victim of

endless delays at the instance people representing conflicting opinions, seeking time ,

seeking examination and cross examination of the witnesses , seeking further

clarifications, marking documents, contest on evidential value of those document etc.

Neither there would be an early remedy for social maladies nor to cater to the very object.

That was not the indication by the Apex Court in Indira Sawhney case, when their

Lordships directed constitution of Commission by States and Union of India for the purpose

of identifying backward class people, for creation of the body. Delaying tactics and other

protractive methods would be adopted by the objectors in order to protect their own self

interest as any inclusion in the list of backward classes would only eat away their vested

rights and thus would like to drag on the matter as long as possible.

It is contended by the learned counsel for petitioners by placing strong reliance on

section 9 (1) of the Act, 1993 that language used therein would mandate a comprehensive

hearing, which in effect means publication of the criteria to enable the objectors to know

and understand the mind of the Commission and scope of the enquiry by the Commission

and giving a fair opportunity to them to effectively participate in the enquiry conducted by

the Commission. Strong reliance is placed on the judgment of this Court in Archana

Reddy case that publication and fair hearing by giving opportunity to adduce evidence is

mandatory.

That the scope of enquiry under section 9 (1) insofar as request for inclusion and for

request and complaints of over inclusion or under inclusion are totally different and in the

first case it is not adversarial in nature and in the second case since vested rights will be

taken away, persons to be effected by a finding on such compliance have to be put on

notice and effective hearing should be made. The words used in section 9 (1) of the Act,

1993 by referring to various dictionary meanings would show the distinction between the

words ‘hear’ and ‘examine’. Two different expressions used in section 9 (1) connote two

different meanings and legislature intended both to have different meaning and scope. In

S.P. GUPTA vs UNION OF INDIA AND ANOTHER [53] it was held as follows:

288. It may also be pointed out that whenever a legislature or constituentassembly uses a particular phrase in contradistinction to another phrase it isnot possible to read the two phrases so as to indicate the same purpose. Inthe instant case, the Constitution has used the word “appointed” in the caseof a Judge of the Supreme Court and “transfer” in the case of a Judge of aHigh Court. A perusal of the language of Article 217(1) proviso (c) leads tothe irresistible conclusion and logical inference that the Founding Fathershave made a clear distinction between transfer and appointment. It is truethat in both cases the office held by a Judge is vacated in a fictional sensebecause there is a complete change in the life of the Judge but that does notmean that the incidents of both these appointments are the same. A Judgeof the High Court when appointed as a Judge of the Supreme Court cannotbe equated in any respect with a Judge of the High Court who is transferredto another High Court and continues to possess the same status, positionand emoluments which is essentially different from a Judge of theSupreme Court. Mr Seervai, however, submitted that both Article 124 whichrelate to the appointment of a Supreme Court Judge and Article 217 whichprovide for the appointment of a High Court Judge do not mention anythingabout obtaining the consent of a Judge which has to be implied in both thecases. On a parity of reasoning it was submitted that where a Judge isappointed in a High Court or transferred to another Court, every time it is anew appointment as a result of which the Judge of the High Court on beingtransferred to another court has to take a fresh oath because he ceases tobe a Judge in the Court of its origin. It is true that on being transferred toanother High Court a Judge ceases to be a Judge but then he ceases to bea Judge of the transferor court only and does not cease to be a Judge for alltimes to come so as to make his transfer in the transferee court a freshappointment. This is clear from para 11(b)(iii) to the Second Schedule to theConstitution which runs thus: “Joining time on transfer from a High Court tothe Supreme Court or from one High Court to another.”

I n ORIENTAL INSURANCE CO. LTD vs HANSRAJBHAI V.KODALA AND

OTHERS[54] wherein it was held as follows:

19. The learned counsel for the claimants submitted that the proviso to sub-section (5) of Section 140 would mean that even in case wherecompensation is determined under the structured-basis formula underSection 163-A, the claimant is entitled to claim compensation on the basis offault liability and if he gets higher amount on the basis of fault liability thenfrom that amount compensation which is paid under Section 163-A is to bereduced. At the first blush the argument of the learned counsel appears tobe attractive as the proviso to sub-section (5) of Section 140 is to someextent ambiguous and vague. It may mean that amount of compensationgiven under any other law may include the amount payable on the basis offault liability, therefore, in view of the said proviso compensation amountpayable under any other law is to be reduced from the compensationpayable under Section 140 or 163-A. For appreciating this contention and forascertaining appropriate meaning of the phrase “compensation under anyother law for the time being in force”, the proviso to sub-section (5) isrequired to be considered along with other provisions. The Scheme of otherprovision in Section 167 indicates that the aforesaid phrase is referable tocompensation payable under the Workmen’s Compensation Act, 1923 orany other law which may be in force but not to the determination of“compensation under the Act”, and would not include thecompensation which is determined “under the provision of the Act”. ThisSection 167 in terms provides that where death of, or bodily injury to, anyperson gives rise to claim compensation under the Act and also under theWorkmen’s Compensation Act, 1923, such person cannot claimcompensation under both the Acts. Further, in Section 140(5), the legislaturehas used the words “under any other law for the time being in force” and“under any other law”. In Section 141(1), the legislature has used the phrase“under any other provision of this Act or of any other law for the time being inforce”. In sub-section (2), the legislature has specifically provided that aclaim for compensation under Section 140 shall be disposed of asexpeditiously as possible and where compensation is also claimed inpursuance of any right on principle of fault, the application under Section 140is to be disposed of in first place. Whereas, there is no such reference forpayment of compensation under Section 163-A. Further, in Section 161(2),the legislature has used the phrase “any other law for the time being inforce” and “provisions of this Act”. Similarly, in Section 162, the legislaturehas used the words “under any other provisions of this Act” or “any otherlaw or otherwise”. As against this, in Section 163-A, the legislature has usedthe phrase “notwithstanding anything contained in this Act or in any otherlaw for the time being in force”. When the legislature has taken care of usingdifferent phrases in different sections, normally different meaning is requiredto be assigned to the language used by the legislature, unless contextotherwise requires. However, in relation to the same subject-matter, ifdifferent words of different import are used in the same statute, there is apresumption that they are not used in the same sense (Member, Board of

Revenue v. Arthur Paul Benthall4 AIR at p. 38). In this light, particularlySection 141 which provides for right to claim compensation “under any otherprovision of this Act” or of “any other law for the time being in force”, provisoto sub-section (5) of Section 140 would mean that it does not provide for

deduction or adjustment of compensation payable under the Act, that is, onthe principle of fault liability which is to be determined under Section 168.

In HIS HOLINESS KESAVANANDA BHARAT SRIPADAGALVARU VS. STATE

OF KERALA AND ANOTHER[55] it was held as follows:

627. We shall now examine the contention of Mr Palkhivala based onArticles 4 and 169, para 7 of Schedule V and para 21 of Schedule VI. Hecontended—and we have no doubt that he did so rightly— that theConstitution can be amended not only under Article 368 but also underArticles 4 and 169, para 7 of Schedule V and para 21 of Schedule VI.Amendments under these provisions can be effected by Parliament by asimple majority vote of the members present in the House and voting, if theprescribed quorum is there. If the two Houses do not agree on anyamendment under those provisions, the same has to be decided by a jointsitting of the two Houses as provided in Article 108. That is because of theexpress exclusion of the application of Article 368 to the amendments madeunder those provisions. According to Mr Palkhivala, by the exercise of itspower under the aforementioned provisions, Parliament can in certainrespects take way or abridge the Fundamental Rights of a section of thepeople of this country. He painted a gloomy picture as to what can happenby the exercise of power by Parliament under those provisions. It is true thatthe power conferred under the aforementioned provisions is amendingpower but those provisions make it clear that the exercise of the powerunder those provisions shall not be “deemed to be the amendment of theConstitution for the purpose of Article 368”.

628. This brings up to a consideration, what exactly is the intent of theexpression “No such law as aforesaid shall be deemed to be an amendmentof this Constitution for the purpose of Article 368”. There can be little doubtthat these words merely mean that the form and manner prescribed inArticle 368 need not be complied with. Once this position is accepted, anylaw made under those provisions takes the character of an ordinary law andthat law becomes subject to the other provisions of the Constitutionincluding Article 13(2).

640. In our Constitution unlike in the Constitution of the United States ofAmerica the words “amendment” and “amend” have been used to conveydifferent meanings in different places. In some Articles they are used toconfer a narrow power, a power merely to effect changes within prescribedlimits— see Articles 4, 107(2), 111, 169(2), 196(2), 197(2) and 200. Underpara 7 of the Fifth Schedule as well as para 2 of the Sixth Schedule to theConstitution, a much larger power to amend those Schedules has beenconferred on Parliament. That power includes power to amend “by way ofaddition, variation or repeal”. Similar is the position under the repealed Article243(2), Articles 252(2) and 350(5). It is true that the power to amend

conferred under the Fifth and Sixth Schedules is merely a power to amendthose schedules but if the Constitution-makers were of the opinion that theword “amendment” or “amend” included within its scope, unless limitedotherwise, a power to add, vary, or repeal, there was no purpose inmentioning in those Articles or parts “amend by way of addition, variation orrepeal”. In this connection it may also be remembered that the ConstituentAssembly amended Section 291 of the Government of India Act, 1935 ofAugust 21, 1949, just a few days before it approved Article 368 i.e. onSeptember 17, 1949. The amended Section 291 empowered the Governor-General to amend certain provisions of the 1935 Act “by way of addition,modification or repeal”. From these circumstances, there is prima faciereason to believe that our Constitution-makers made a distinction between amere power to amend and a power to amend by way of “addition,modification or repeal”. It is one of the accepted rules of construction that thecourts should presume that ordinarily the Legislature uses the same wordsin a statute to convey the same meaning. If different words are used in thesame statute, it is reasonable to assume that, unless the context otherwiseindicates, the Legislature intended to convey different meanings of thosewords. This rule of interpretation is applicable in construing a Constitution aswell.

For convenience sake, the provision, reads as under;

“Functions and powers of the Commission:-- (1) The Commissionshall examine requests for inclusion of any class of citizens as a backwardclass in the lists and hear complaints of over-inclusion or under-inclusion ofany backward class in such list and tender such advice to the Governmentas it deems appropriate.

(2). The Commission shall examine and make recommendationson any other matter relating to the backward classes that may be referred toit by the Government from time to time.

(3). It shall be competent for the Commission at the request of theGovernment to make an interim report in regard to any Castes or Classes inwhose cases urgent action under the Act is, in the opinion of thegovernment necessary. Any action taken by the Government on the basisof such report shall be subject to review with prospective effect as and whenthe final report of the Commission is received.

(4). The Commission shall enquire into specific complaints withrespect to then on-observance of the rule of reservation in the admissionsinto educational institutions and also reservation of appointments toposts/services under the Government and other local authority or otherauthority in the State, as applicable to the listed Backward Classes andfurnish its report to the government.”

As evident barely Section 9 of the Act, 1993 contemplates twin functions to be

evolved by the Commission, one to examine the request for inclusion of any class of

citizens as backward classes in the list and the other to hear complaints of over inclusion

or under inclusion. The crucial phrase used in Section 9 of the Act,1993 is “examine” and

“hear”. The legislature used this phrase to distinguish between the nature of enquiry when

there is a request for inclusion and a request for exclusion of a particular class from the

existing list. The request for inclusion is not adversarial in nature and would lead to an

objective enquiry to affirmative action of the State, whereas the request of exclusion on the

ground of over inclusion would mean that the existing rights of a class of persons are

sought to be taken away and such class of persons are entitled to be represented,

adduce evidence before the Commission to enable it to come to a proper and objective

conclusion and the two functions to be discharged by the Commission are entirely different

in their scope, impact approach and effect.

The two other phrases used in section 9 (1) of the Act, 1993 by the State Legislature

i.e., “Class of citizens and list of backward classes” and note the difference between them.

The definition of ‘backward classes’ and ‘lists’ as defined under Section 2 of the Act, 1993,

which read as under;

(a) “backward classes” means such backward classes of citizens ofA P other than the Scheduled Castes and the Scheduled Tribes as may bespecified by the State government in the lists;

…

(d) “lists” means lists prepared by the Government from time to timefor the purposes of making provision for the reservation of admissions intoeducational institutions and of appointment of posts in favour of thebackward classes of citizens which, in the opinion of the Government, arenot adequately represented in the services under the government and in anylocal authority or other authority in the State;

List as defined under Section 2 (d) means for the purpose of making reservation into

the educational institutions and appointment of posts in favour of backward classes which

in the opinion of the government is not adequately represented. List means a list which is

published as contemplated under the Act, 1993 after recommendations of APCBC after

consideration and acceptance by the Government, whereas the claim for inclusion, till the

process is completed by a publication under the Act, would not become a backward

class. Thus, it is clear that the Commission is entrusted with entirely different varied

functions is exigency, which in one case will have an adverse impact and in other case,

would lead to affirmative action. Keeping in mind the nature of functions to be performed by

the Commission under Section 9 (1) of the Act, 1993, in the matter of consideration of the

request for inclusion in the list of backward classes, it needs no elaborate enquiry, since

not being adversarial in nature, as a fact finding body. In the absence of any provision for

publication of criteria this Court can not supplant the provisions of the Act and the Rules by

making publication mandatory. Any attempt on these lines would seriously make in-roads

into the object and independent exercise to be made by the Commission.

On careful consideration, the judgments relied on in Archana Reddy’s case to arrive

at the said conclusion apparently are not relevant nor can lead to such a conclusion with

the explicit language used in section 9 (1) of the Act, 1993.

It does not appear to be the intention of the legislature to buck down the Commission in

technicalities and hyper technicalities, thus delaying the whole process befitting the

purpose for which the Commission is constituted. It is also contended by the petitioner that

non publication of the criteria and not giving effective opportunity by providing with data and

other evidence collected by the B C Commission, would amount to violating the principles

of natural justice and report was prepared in violation of the principles of natural justice, is

non-est in the eye of law and cannot be used for any purpose whatsoever.

In this regard the Commission is a fact finding body and no “lis” is being decided

and no rights were being taken away. More so, when the recommendations of the

Commission is not absolutely binding on the Government and the Government is entitled

to reject the same by recording reasons therefor. It is like any other fact finding body under

the Commission of inquiries Act or any such enactment. It is always open for the

petitioners to attack the findings recorded by the Commission before the Commission itself

under Section 9 (1) of the Act or go before the Government with all valid material in rebuttal

to show that the Commission has erred in arriving at the conclusion for recommending

inclusion of a particular class in the list of backward classes. In KESHAR SINGH Vs.

STATE (DELHI ADMN)[56] it was held as follows:

236. It will be clear from these provisions that the Act was intended to covermatters of public importance. In matters of public importance it may benecessary for the government to fix the responsibility on individuals or to killharmful rumours. The ordinary law of the land may not fit in such casesapart from it being time-consuming.

237. The Commission under our Act is given the rower to regulate its ownprocedure and also to decide whether to sit in camera or in public. ACommission appointed under the Act does not decide any dispute. Thereare no parties before the Commission. There is no lis. The Commission isnot a court except for a limited purpose. The procedure of the Commissionis inquisitorial rather than accusatorial. The Commission more often mayhave to give assurance to persons giving evidence before it that theirstatements will not be used in any subsequent proceedings except forperjury. Without such an assurance, the persons may not come forward togive statements. If persons have got lurking fear that their statements givenbefore the Commission are likely to be used against them or utilised forproductive use on them in any other proceeding, they may be reluctant toexpose themselves before the Commission. Then the Commission wouldnot be able to perform its task. The Commission would not be able to reachthe nuggets of truth from the obscure horizon. The purpose for which theCommission is constituted may be defeated.

Therefore the principles of natural justice are not static but are flexible. The larger

public interest is paramount and accordingly, the principles of natural justice should be

moulded to suit in the exigency. It is always open to the petitioners to go before the

Commission with whatever material they have on the ground of over inclusion or for

deleting such class from the list of backward classes. Such a decision is not adjudicatory

disposition. Therefore, all the niceties may not have a place in the process of Judicial

Scrutiny, except to the extent the parameters laid down.

Coming to the grass-root level enquiry which is stated to have been conducted by

the Commission, there has been a serious attack from various facets as to the manner in

which it has been conducted and the hastiness with which it is processed through and

completed, which according to the petitioners is contrary not only to the principles of natural

justice in a situation of this nature and also under the provisions of the Commissions of

Inquiry Act, 1952. Therefore, this question dehorce the other legal aspects, which have

been focussed, needs to be considered. The Commissions of Inquiry Act, 1952 (Act 60 of

1952) provides for the Commission of appointment for the purpose of enquiry and for

vesting with the powers for such Commission. The source for such appointment can be

traced to Section 3 thereof.

There is a distinction in regard to the procedure contemplated under the English Act

and the Indian Legislation. Whereas the English Legislation empowers and contemplates

for the Tribunal itself to regulate its own procedure. Further, the aforesaid provisions of the

Commissions of Inquiry Act contemplate the Central Government to make rules to regulate

the procedure. Accordingly, the rules have been framed under the Act, which depict the

manner and the procedure. Ultimately, even on an entire reading of the Rules there-under

tells the induction of principles of natural justice in the process with a view to safeguard the

individual rights and for a comprehensive due consideration.

That apart, there is no dispute in regard to the well established attributes that govern

such appointment and the Commission can evolve its own procedure on the exigency of

the intent and the object for which it has been constituted. There is no hard and fast rule to

follow any specific procedure contemplated under any of the procedural laws or otherwise.

Further, it cannot however be said that though the statute is silent as to the mode of such

procedure for all such Commissions in one breath or from different exigencies, the basic

principles of natural justice do certainly have a decisive bearing. Therefore, these tenets

have to be kept in the back of the mind and see, if followed with its due compliance.

In the present case, there is no serious dispute with regard to the chequered

events, which have taken place during the process of enquiry by the Commission.

Admittedly, the reference was made on 17-4-2007 (Tuesday). The notification was issued

on 26-4-2007 (Thursday) contemplating for the submission of objections, representations

and claims of whatsoever nature, for which the last day prescribed, was 12-5-2007

(Saturday). Not referring to the number of representations and objections received, the

Commission started to have its sittings on 14-5-2007 (Monday) this was followed up on the

next dates of hearing i.e., on 16-5-2007 (Wednesday), 22-5-2007 (Tuesday), 28-5-2007

(Monday), 1-6-2007 (Friday). Thereafter, the Commission stated to have made a local

visits in the muffossil areas commencing from 23-6-2007 (Saturday), on which day it is

stated to have held a meeting at Cuddapah. On 24-6-2007 (Sunday) the sitting was at

Kurnool and also at Mahaboobnagar, both the districts covering. On 25-6-2007 (Monday),

the Commission stated to have had sittings at Guntur and Prakasham, both the districts

covering. Ultimately, on 26-6-2007 (Tuesday), the Commission held its sitting at

Hyderabad. Immediately thereafter, the Commission delivered its report on 2-7-2007

(Monday) which is followed by the issuance of the impugned notification in G.O.No.723

dated 7-7-2007 (Sunday). Further, the legislation was brought in as Act 26 of 2007 and it

was gazetted on 13-8-2007. Therefore, from the above, the dates on which the exercise

was made in respect of or by the Commission commenced from 17-4-2007 and ultimately

ending with the notification in G.O.723 dated 7-7-2007 and notifying in the Gazette for Act

26 of 2007 on 13-8-2007. All this period and the duration which it has taken place thus

hardly can be seen to run within 3 or 4 months maximum. It cannot be lost to sight that the

Government’s endeavour in respect of such reservations for the backward classes in the

State has been in vogue all along for years. Whereas this last exercise as it appears from

the above dates is quite, ex facie is having a more finishing haste. We are of the view that

no doubt what could have happened if really such exercise is done in the normal manner in

which it is expected to have been done by providing opportunities and giving a hearing with

the sittings at different places throughout the state and almost at every district

headquarters if not other interior places in stead of resting it to few, certainly it should have

taken a much longer time. Even for sittings at district headquarters, it could not have been

carried through to complete within 4 days covering six districts alone. Even in between

such sittings with at different headquarters of the districts, one does not know what sort of

publicity has been given so as to invite the claims or objects. Nothing has come out as to

why headquarters of other districts were left out nor there is any specific reason given to

pick only such headquarters of the district where it has been held. However, dehorce such

process which is glaringly appears to be not an exhaustive exercise, in view of the findings

which we have already given as to the existence, sufficiency of the material available for

the Commission to come to a conclusion in regard to identifying the backward classes and

there being no further material having been pointed out by the petitioners, which could have

formed part of consideration before the Commission or to say that the caste which has

been recognised as backward class could not possibly have been held to be so.

Therefore, we do not find any justification to invalidate or set at naught the ultimate say in

identifying the backward classes in the impugned notification or the legislation. However,

we do make it clear that since the very object and the exercise of identifying the backward

classes is always a continuous process and open for all such reviews in appropriate

manner either for inclusion or for taking them out of the list, we leave it to the liberty of the

Government or such authorities including the Commission, to make a post facto re-

exercise for the purpose of identification of castes as backward classes and to take

appropriate decision either way.

In view of the above reasons, it follows that there is no requirement or mandate as

contemplated in Archana Reddy’s case nor there is any such flagrant violation or

perversion in the process behind the impugned action. Hence, I hold that the findings

in this regard in Archana Reddy were not arrived at correctly since they are quite contrary

to the principles laid down by the Apex Court. Accordingly, I answer the second issue

referred.

In view of the discussion and the reasons given, we are of the opinion that the

questions which have been referred in the reference order by the Larger Bench of Five

Judges as per order dated 24-01-2008 needs to be answered in the following manner:

1. Whether the concept of strict judicial scrutiny in the matter of affirmative

action of the State under equality doctrine as propounded idn Archana Reddy

case, is contrary to the dicta liad down by the Apex Court in Sourabh and other

decisions on the subject – Answerd-Yes

2. Whether the concept of publication of criteria evolved by B.C Commission,

and data collected in that regard in the matter of identification of socially and

educationally backwardness as propounded in Archana Reddy case is contrary

to the dicta laid down in Indira Sawhney case and also contrary to the

provisions of the Act 1993 ? Answered – yes

3. In view of the discussion and the reasons as given within the parameters of

Judicial Review available, we do not find the impugned notification and the

legislation as unconstitutional, and since the Commission did have some

material before it while making the exercise identified the backward classes

and, especially, in the absence of any contra material against those castes.

4. However, since we are of the view that no doubt the enquiry before the

Commission appears to have been done in a very short period giving scope for

the parties aggrieved or various groups complaining not given proper

opportunity, which itself though cannot be a ground for setting at naught the

identification of the castes for declaring them as backward classes for the

reasons already given above. However, holding that the impugned action being

valid, we leave it open for the Government and the Commission and all other

parties concerned to make a post facto re-exercise in this process and come to

a conclusion afresh and accordingly take further action either for confirming the

caste which have been declared as backward class or for any expedient

variation in this regard.

Having answered the questions referred by the Larger Bench of Five Judge as

stated above, we direct the Registry to place the matter before the Hon’ble Chief Justice for

posting these matters before the said Bench for appropriate orders.

_______________

B.PRAKASH RAO,J

DATE:08-02-2010TVK/GRK

ORDER: (per Hon’ble Shri Justice D.S.R. Varma)

I had the privilege of going through the judgment of the Hon’ble Sri Anil

R.Dave, the Chief Justice, rendered for himself and for Hon’ble Sri Justice

A.Gopal Reddy, Hon’ble Sri Justice Goda Raghuram, and the judgments of

Hon’ble Smt. Justice T.Meena Kumari, broadly concurring with the judgment

rendered by the Hon’ble the Chief Justice, on one hand, and also the judgment

rendered by Hon’ble Sri Justice B.Prakash Rao not agreeing with the views

expressed by the other Hon’ble Judges, on the other.

2. Though on many vital issues, I broadly agree with the views

expressed by Hon’ble Sri Justice B.Prakash Rao, since I am unable to agree

with his Lordship’s view on certain issues marginal extent, I prefer to put on

record my own reasons, separately. Hence I venture to do so.

3. The undisputed historical background as regards reservation in

general and with regard to the litigation in particular was already narrated in the

judgment rendered by the Hon’ble the Chief Justice. Therefore, I avoid

repetition of the same.

4. Basing on the recommendations by the Commission, the State

Government had issued an Ordinance, dated 20-6-2005, viz., A.P. Reservation

of Seats in the Educational Institutions and of appointments/posts in Public

Services under the Muslim Community Ordinance, 2005, declaring the whole

Muslim Community as Backward Class and providing 5% reservation to them

in educational institutions and public employment. The said Ordinance again

was subjected to challenge before this Court in B. Archana Reddy and others

vs. State of A.P. and others[57] and the same was declared as

unconstitutional being violative of Articles 15(4) and 16(4) of the Constitution of

India on the ground that the Muslim community on the whole based on religion

was declared as backward class, without there being any identification of

social backwardness of the Muslims by the community. The said judgment is

now the subject matter in SLP (Civil) Appeal No.7513 of 2005 before the

Supreme Court and the same is pending.

5. After the action or effort of the State Government in the direction of

affirmative action in favour of Muslim community, not once but twice by an

administrative instrument and later vide legislative enactment was interdicted

in this Court in the cases of T.Muralidhar Rao and Archana Reddy,

respectively. The State has again referred the matter to the Commission for

identifying the socially and educationally backward class Muslims and basing

on the recommendations received from the Commission, the Legislature

enacted the present Act under controversy i.e., Andhra Pradesh Reservation in

favour of Socially and Educationally Backward Classes of Muslims Act, 2007

(for brevity “Act No.26 of 2007”) and consequently added such groups as

recommended by the Commission to the existing list of Backward Classes as

group ‘E’.

6. After hearing at considerable length Sri K.Ramakrishna Reddy, Sri

D.Prakash Reddy, learned Senior Counsel, other learned counsel appearing for

the petitioners and also the party-in-person, in view of certain observations

made in Archana Reddy’s case (1 supra), the Larger Bench consisting of

5-Judges felt that it is expedient that the matter be heard and reconsidered by

a Bench of 7-Judges and that is how this batch of writ petitions were heard by

this 7-Judge Bench.

7. In that view of the matter, the Hon’ble the Chief Justice, speaking for

himself and other 2 Judges and Hon’ble Smt. Justice T.Meena Kumari in a

separate judgment decided all the issues but whereas Hon’ble Sri Justice

B.Prakash Rao took the view that in the light of the judgments rendered by the

Supreme Court in T.A.Hameed vs. M.Viswanathan[58], Kesonath Khuran vs.

Union of India[59] and Kerala State Science & Technology Museum vs.

Rambal Co.[60] expressed the view that the writ petitions be remitted back to

the 5-Judge Bench after answering the reference.

8. In this connection, I feel is inexpedient to re-extract the views

expressed by two Hon’ble Judges in Archana Reddy’s case (1 supra) in

paras-293, 378 and 379, since they were already extracted by Hon’ble Sri

Justice B.Prakash Rao and also Hon’ble Smt. Justice T.Meena Kumari.

However, it is relevant to have a glance at the operative portion of the order of

reference, which is as under:

“In view of the aforesaid judgment emanated from a coordinate bench of five

judges of this Court and in the absence of any provision in the statute for

publication of the criteria whether this Court can supplant the provisions of

the Act and the Rules by making publication mandatory as per the

observations as contained in paras stated supra and other observations

made by the coordinate bench, are contrary to the observations made by

the Supreme Court in Indra Sawhney v. Union of India, where it was left

open for the concerned authorities to lay down the criteria, apart from

contrary to principles laid down in regard to strict scrutiny approach, as laid

in Saurabh Chandra v. Union of India and also the principles laid down in

other decisions of the Apex Court.

After hearing the counsel on either side appearing on behalf of the

respondents, we are of the view that the matters are required to be heard

and reconsidered by a 7-Judge Bench.”

9. From the above, it is obvious that the 5-Judge Bench did not frame

any issue or issues, in specific, to be addressed by 7-Judge Bench. It is

explicit from the above order that the said Bench was of the view that the

matters were required to be heard and reconsidered by 7-Judge Bench in view

of certain observations made by the learned Judges in Archana Reddy’s case

(1 supra).

10. Virtually, by virtue of the above order of reference, the present 7-

Judge Bench had to reconsider the whole issue, comprehensively. Therefore,

I cannot, with respect, agree with the view expressed by my learned brother

Hon’ble Sri Justice B.Prakash Rao that the matter has to be referred back to 5-

Judge Bench. However, as I am in agreement with the views expressed by

Hon’ble Sri Justice B.Prakash Rao on various issues discussed by him,

broadly, and respectfully disagree with the view expressed by Hon’ble Chief

Justice and Hon’ble Smt. Justice T.Meena Kumari,

I place on record my views.

11. The prime contentions on behalf of the writ petitioners are—

(i) that the Commission had conducted the enquiry with undue haste

regarding exclusion of certain groups of Muslim community in the list of

Backward Classes,

(ii) that neither the required amount of care was taken nor proper survey

was conducted in collecting the data in order to include the groups among the

Muslims in the list of Backward Classes as belonging to socially and

educationally backward classes,

(iii) that the Commission had placed undue reliance upon the data

collected by one Sri P.S.Krishnan, who was appointed by the Government to

assist the Commission. Therefore, the Commission had got simply swayed

away with the views, data and the experience of Sri P.S.Krishnan before

arriving at the conclusion that certain sections of Muslims were socially and

educationally backward,

(iv) that the impugned act is religion specific and there is every

likelihood that the people belonging to other religion may get lured to embrace

Islam as a religious faith, which is contrary to the concept of secularism. In

order to substantiate this contention, several instances and excerpts from the

report of the Commission were relied on, which will be dealt with separately,

(v) that the identification of backward classes is an objective process

and should be based on objective material as held in Indra Sawhney vs.

Union of India[61]. Any such exercise, in this regard, should be subjected to

in-depth scrutiny as mandated in Ashoka Kumar Thakur v. Union of

India[62],

(iv) that the views expressed by Hon’ble Sri Justice Goda Raghuram

and Hon’ble Sri Justice V.V.S. Rao in Archana Reddy’s case (1 supra) while

holding that strict scrutiny standard is the appropriate standard of judicial

review, it is contended that those observations should be understood not in the

context of United States and the said views are to be understood as ‘in-depth

scrutiny’, ‘careful scrutiny’ and ‘extreme caution and care’ as was pointed out

in Ashoka Kumar Thakur’s case (6 supra),

(vii) that there is a difference between the reservation programme under

challenge in Archana Reddy’s case (1 supra) and the reservation under

challenge in Ashoka Kumar Thakur’s case (6 supra) ‘religion specific

classification’ is a subject matter in the former and ‘caste based classification’

is involved in the latter,

(viii) that the limitations of Articles 15(4), 15(5) and 16(4) of the

Constitution of India are applicable to a Legislative identification of

backwardness. Though the said provisions enable the State to provide

reservation for socially and educationally backward class citizens, which

cannot be treated as blanket power and the exercise of such power is subject

to certain limitations. The guiding ruling on this is that of the Supreme Court in

Indra Sawhney’s case (5 supra). Reliance is placed on M.Nagaraj v.

Union of India[63].

(ix) that if the Legislators declare a group as ‘Backward Class’, when the

identification process was constitutional and incompatible, the Court can

declare such legislation as unconstitutional, and the B.C. Commission simply

based on the report of Sri P.S. Krishnan, which demonstrates the lack of

application of mind by it,

(x) that the identification of backward classes should be preceded by (a)

formulation of objective criteria, (b) fair and adequate investigation, (c)

presence of adequate material regarding backwardness, inadequacy of

representation and efficiency of administration,

(xi) that the burden of proof challenging the formative action programme

is on the State. Reliance is placed on Ramakrishna Dalmia v. Justice S.R.

Tendolkar[64]. Further that the burden is on the State because the State has

the exclusive knowledge of the material which forms the basis for reservation

(see S.R.Bommai v. Union of India – (1994) 3 SCC 1).

(xii) that in the context of affirmative action, the State cannot use the

religion as the basis for classification of Backward Classes.

12. On the other hand, the learned Advocate General as well as Sri

Anoop G.Chaudhary, learned Senior Counsel appearing for the respondents-

State, relying on various powers of the Government and while placing reliance

on various judgments of the Supreme Court refuted the contentions raised by

the petitioners.

13. Basing on the above contentions, the prime issues that fall for

consideration are —

1) Scope of Judicial Review: The scope of judicial review of an Act

passed by the legislature more particularly if it is enacted in the context of

affirmative action of the State in the context of Articles 14, 15 and 16 read with

Article 46 of the Constitution is no more res integra. However the question --

whether American jurisprudential concepts of ‘suspect legislation’, ‘strict

scrutiny’, ‘compelling State necessity’, ‘narrow-tailoring’ and the like are

applicable in judicial scrutiny of legislations in India, has been generated

because of the views expressed by a coordinate Bench in Archana Reddy’s

case (1 supra), which prima facie appears to be in conflict with the views

expressed by the Supreme Court in Indra Sawhney’s case (5 supra). This

was one of the reasons/issues for the reference to this bench.

14. Learned Senior Counsel Sri K.Ramakrishna Reddy argued that the

standard of judicial review laid down in Archana Reddy’s case (1 supra) is

consistent with dictum of the apex Court in Ashoka Kumar Thakur’s case (6

supra) and not based on Amarican doctrine of strict scrutiny. It is his further

contention that the impugned legislation would be subject to a close scrutiny,

as it is based on religion and discriminates on the basis of religion. Therefore,

the Court should scrutinize whether the identification of backward classes is

preceded by (a) formulation of objective criteria for identification of backward

classes, (b) fair and adequate investigation, and (c) presence of adequate

material to see as to whether the constitutional requirements of identification of

backward class, inadequacy of representation of such class in public

employment was properly looked into.

15. In this regard, reliance has been placed on the judgment of the

Supreme Court in M. Nagaraj’s case (7 supra).

“Equality in Article 16(1) is individual-specific whereas reservation in Article

16(4) and Article 16(4-A) is enabling. The discretion of the State is, however,

subject to the existence of ‘backwardness’ and ‘inadequacy of

representation’ in public employment. Backwardness has to be based on

objective factors whereas inadequacy has to factually exist. This is where

judicial review come in.” (Para 49)

“The State concerned will have to show in each case the existence of the

compelling reasons, namely, backwardness, inadequacy of representation

and overall administrative efficiency before making provision for reservation.

As stated above, the impugned provision is an enabling provision. The State

is not bound to make reservation for SCs/STs in matters of promotions.

However, if they wish to exercise their discretion and make such provision,

the State has to collect quantifiable data showing backwardness of the class

and inadequacy of representation of that class in public employment in

addition to compliance with Article 333.”

(Para 123)

16. It is the elaborate contention of the learned Advocate General that

unless justice of social, economic and political is achieved, fraternity cannot

be achieved (see Keshavananda Bharati’s case paras 15, 91, 94 to 98, 116,

486, 506, 511, 513, 533, 1301, 1473 and 1475) (see also the judgment in

Minerva Mills case), wherein it was pointed out by the apex Court that

Preamble is not outside the Constitution, but is an integral part of the basic

structure of the Constitution and it is, in fact, the foundation on which the entire

edifice of the Constitution is built.

17. It is pertinent to note that the judicial scrutiny of an administrative

action or legislative action is part of the basic structure of the Constitution of

India. Neither the expression ‘judicial scrutiny’ nor its extent is defined in the

Constitution. The Courts have to evolve certain principles on the scope of

strict scrutiny subject to certain restrictions. Both the Executive and the

Legislature consisting of individuals or representatives of the people, as the

case may be, who are in close proximity to the people and their requirements,

and basing on such requirements of various sections/groups/classes of

people, the said two wings of the State will have to respond in a pro-active

manner. Any conflicts in interest among various sections/groups/classes in

such process is inexecutable and the State shall try to remove the same to the

extent possible and merely because of one section of people are aggrieved in

extending the State affirmative action, that can never be a reason for the State

not to exercise its constitutional obligation and at the most the State can only

minimize the disharmony to the lowest extent possible.

18. Sri Jeevan Reddy, J has expressed his opinion in Indra Sawhney’s

case (5 supra), which is as under:

“This 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, drawnas it is from

among the Representatives of the people in Parliament/ Legislature. It 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 Vs. Company Law Board (AIR 1967 SC 295) Vol.I page

147, which need not be repeated here.

19. At para-842, it has been further observed as regards the scope of

judicial scrutiny, which is as under:

“It is enough to say on this question that there is no particular or special

standard of judicial scrutiny in matters arising under Article 16 (4) or for that

matter, under Article 15 (4). The extent and scope of judicial scrutiny

depends upon the nature of the subject matter, the nature of the right

affected, the character of the legal and constitutional provisions applicable

and so on. The acts and orders of the State made under Article 16(4) do not

enjoy any particular kind of immunity. At the same time, we must say that

court would normally extend due deference to the judgment and discretion of

the Executive – a co-equal wing – in these matters. The political executive,

drawn as it is from the people and represent as it does the majority will of

the people, is presumed to know the conditions and the needs of the people

and hence its judgment in matters within its judgment and discretion will be

entitled to due weight. More than this, it is neither possible nor desirable to

say. It is not necessary to answer the question as framed.”

20. Sri Pandian, J. in Indra Sawhney’s case (5 supra) put on record his

views in this regard which are as under:

“The action of the Government in making provision for the reservation of

appointments or posts in favour of any ‘backward class of citizens’ is a

matter of policy of the government. What is best for the ‘backward class’

and in what manner the policy should be formulated and implemented

bearing in mind the object to be achieved by such reservation is a matter for

decision exclusively within the province of the Government and such

matters do not ordinarily attract the power of judicial review or judicial

interference except on the grounds which are well settled by a catena of

decisions of this Court.” (para 176)

21. The further observations of Sri Pandian, J., in Indra Sahwney’s

case (5 supra) at para 176 also are relevant in this regard, for ready reference

extracted, which are thus:

“… … … What is best for the ‘backward class’ and in what manner the

policy should be formulated and implemented bearing in mind the object to

be achieved by such reservation is a matter for decision exclusively within

the province of the Government and such matters do not ordinarily attract

the power of judicial review of judicial interference except on the grounds

which are well settled by a catena of decision of this Court.”

22. In Indra Sawhney’s case (5 supra), Sri Sawant, J has pointed out

as under:

“The answer to the question lies in the question itself. There are nospecial principles of judicial review nor does the scope of judicial reviewexpand when the identification of backward classes and the percentage ofthe reservation kept for them is called in question. So long as correctcriterion for the identification of the backward classes is applied, the result

arrived at cannot be questioned on the ground that other valid criteria werealso available for such identification. It is possible that the result so arrived atmay be defective marginally or in marginal number of cases. That does notinvalidate the exercise itself. No method is perfect particularly whensociological findings are in issue. Hence, marginal defects when found maybe cured in individual cases but the entire finding is not rendered invalid onthat account.” (para-529)

“The corollary of the above is that when the criterion applied for

identifying the backward classes is either perverse or per se defective orunrelated to such identification in that it is not calculated to give the result oris calculated to give, by the very nature of the criterion, a contrary orunintended result, the criterion is open for judicial examination.” (para 530)

“To sum up, judicial scrutiny would be available (i) if the criterion

inconsistent with the provisions of Article 16 is applied for identifying theclasses for whom the special or unequal benefit can be given under the saidarticle; (ii) if the classes which are not entitled to the said benefit are wronglyincluded in or those which are entitled are wrongly excluded from the list ofbeneficiaries of the special provisions. In such cases, it is not either theentire exercise or the entire list which becomes invalid, so long as the testsapplied for identification are correct and the inclusion or exclusion is onlymarginal; and (iii) if the percentage of reservations is either disproportionateor unreasonable so as to deny the equality of opportunity to the unreservedclasses and obliterates Article 16 (1). Whether the percentage isunreasonable or results in the obliteration of Article 16 (1), so far as theunreserved classes are concerned, it will depend upon the facts andcircumstances of each case, and no hard and fast rule of general applicationwith regard to the percentage can be laid down for all the regions and for alltimes.” (para 537)

23. Further, Jeevan Reddy, J having referred to certain decisions of the

U.S. Supreme Court observed as under:

“We have examined the decisions of U.S. Supreme Court at some length

only with a view to notice how another democracy is grappling with a

problem similar in certain respects to the problem facing this country.”

24. The above observations were made in the context of the problems

being faced by the minorities, including blacks in United States and the

backward classes, including Scheduled Castes and Scheduled Tribes in this

country.

25. The above expression of His Lordship would only show that the

reference of the judgments of the foreign Court was only to the extent of having

a better comprehension.

26. Now, it is necessary to consider the observations made by Goda

Raghuram, J and V.V.S.Rao, J in Archana Reddy’s case (1 supra). In

fact, as already pointed out, it is those observations which prompted the 5-

Judge Bench to refer the matter to the 7-Judge Bench for adjudication.

Those observations were made in the context of rationality in arriving at the

conclusion that all Muslims, as a whole, are socially backward and the validity

or otherwise of recording such social backwardness of Muslims by a body like

Backward Class Commission is for want of evolving relevant criteria for the

purpose of ‘caste test’, ‘occupation test’ and ‘means test’.

27. Sri V.V.S.Rao, J in Archana Reddy’s case (1 supra), while referring

to various judgments of the U.S. Supreme Court, opined as under:

“Indeed, in the leading opinion, Jeevan Reddy, J., held that the extent and

scope of judicial review depends on the nature of the subject-matter, the

nature of the right affected, the character of legal and constitutional

provisions applicable and so on. In the light of this, we have examined the

leading cases which arose under Articles 15(4) and 16(4) of Constitution of

India. After giving deep and anxious consideration, we have come to the

conclusion that when a policy of affirmative action providing reservations in

educational institutions and public employment is brought before the Court

for judicial review, the Court should apply strict scrutiny test while taking up

primary review of the matter. But when the policy is tested on the ground of

arbitrariness and reasonableness - that is to say secondary review; the

Court should stick to intermediate scrutiny or deferential standard scrutiny

compelling the State to show the minimum rationality in such action.”

28. From the above, it appears that reservations in educational

institutions and public employment, being a policy of affirmative action, should

be subjected to strict scrutiny and when a policy is tested on the ground of

arbitrariness and reasonableness, the Court shall confine to the extent of

intermediate scrutiny only from the perspective of rationality in such action.

29. In this regard, it is essential to note that at para-860, Jeevan Reddy,

J, while summing up the answers at item-7, had pointed out as under:

“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.”

30. Sri Goda Raghuram, J, in Archana Reddy’s case (1 supra) at

para-146, observed as under:

“The most rigorous standard of judicial review, the Strict scrutinystandard is satisfied only if the Governmental action satisfies two toughrequirements (a) compelling objective; this means that the interest beingpursued by the Government must be compelling, not just legitimate or evenimportant and (b) least restrictive means; this requirement implies that themeans chosen by the Government must be "necessary" to achieve thatcompelling objective. Thus the "fit" between the means and the ends mustbe extremely tight. It is not sufficient that there is a "rational relation" or"substantial relation". In operation and practice this requirement is met onlyby showing that there are no less restrictive means of accomplishing thecompelling Governmental objective.”

31. From the above observations, it is obvious that the learned Judge

had tried to define strict scrutiny standard and in this process two

requirements were identified viz., (1) compelling objective of the Government,

but not mere legitimate or even important, and (2) least restrictive means. It

further appears, at a glance, that compelling Government objective appears to

have been a little more thrust.

32. The learned Judge, after referring to several judgments of U.S.

Supreme Court, had noticed the summarized part of the judgment, in this

regard, by Jeevan Reddy, J in para-73 of Mandal case as “No single uniform

pattern of thought can be discerned from these decisions. Ideas appear to be

still in process of evolution.”

33. The learned Judge, having taken into account the observations

made by Pandian, J in Mandal’s case, concluded that the action of the

government in making provision for the reservation of appointments or posts in

favour of any 'backward class of citizens' is a matter of policy of the

Government. What is best for the 'backward class' and in what manner the

policy should be formulated and implemented bearing in mind the object to be

achieved by such reservation is a matter for decision, exclusively within the

province of the Government and such matters do not ordinarily attract the

power of judicial review except on settled grounds (perversity and the like).

34. The observations of Thommen, J are also taken note of by Goda

Raghuram, J in Archana Reddy’s case (1 supra) at para-286. The views of

Sahay, J and Sawant, J were also taken into consideration.

35. From the above views expressed by their Lordships in (Mandal’s

case), it appears that the affirmative action of the State can be subjected to

challenge in circumstances like -- if any conflict with the Constitution or the

general principles of land or arbitrariness and unreasonable or perverse etc.,

and like.

36. However, Goda Raghuram, J, in Archana Reddy’s case (1 supra) at

para-155, had pointed out as under:

“From an analyses of the several opinions in Mandal, as to the appropriate

standards of judicial review in matters pertaining to affirmative action, it

appears to us that the area is broadly left open. What is clear however is

that the extent and level of scrutiny is relative to the legal or constitutional

right and interest involved in a specific claim, presented before the Court.”

37. Sri G.Raghuram, J. at para 159, further observed as under:

“Under our constitutional scheme explicit and dominantly religion or caste-based classification is prohibited. Therefore, an explicit religion-specificclassification of our plural and composite social fabric, to identify a class ofcitizens for extending to them “set aside” benefits for educational and publicemployment opportunities, would constitute a suspect classification. Suchclassifications must be subjected to the most exacting judicial examinationand the State must establish that though its policy is facially religion-explicit,is in reality a benign programme within constitutional limits.”

38. The above observations in my considered view would run quite

contrary to the spirit of the observations made by Jeevan Reddy, J in Indra

Sahwney’s case (5 supra) at paras 782, 783 and 788.

39. From the above, what appears from the views expressed by Goda

Raghuram and V.V.S.Rao, JJ., is, notwithstanding the views expressed in

Indra Sawhney’s case (5 supra) in different words are emphatic either

indirectly or directly, the test of strict scrutiny has to be applied.

40. The apex Court in Indra Sahwney’s case (5 supra) in its final

conclusions, while summing up the discussion under Question No.3(f), held at

para 798, which is extracted for ready reference, as under:

“(f) Adequacy of Representation in the Services under the State

Not only should a class be a backward class for meritingreservations, it should also be inadequately represented in the servicesunder the State. The language of clause (4) makes it clear that the questionwhether a backward class of citizens is not adequately represented in theservices under the State in a matter within the subjective satisfaction of theState. This is evident from the fact that the said requirement is preceded bythe words “in the opinion of the State”. This opinion can be formed by theState on its own, i.e., on the basis of the material it has in its possessionalready or it may gather such material through a Commission/ Committee,person or authority. All that is required is, there must be some materialupon which the opinion is formed. Indeed, in this matter the court shouldshow due deference to the opinion of the State, which in the present contextmeans the executive. The executive is supposed to know the existingconditions in the society, drawn as it is from among the representatives ofthe people in Parliament/Legislature. It does not, however, mean that theopinion formed is beyond judicial scrutiny altogether. The scope and reachof judicial scrutiny in matters within subjective satisfaction of the executiveare well and extensively stated in Barium Chemicals v. Company LawBoard (1966 Supp SCR 311 : AIR 1967 SC 295) which need not berepeated here. Suffice it to mention that the said principles apply equally inthe case of a constitutional provision like Article 16(4) which expresslyplaces the particular fact (inadequate representation) within the subjectivejudgment of the State/executive.”

41. From the above, it is to be construed that the expression ‘subject to

satisfaction’ is primarily that of the State and not for the courts to look into that

aspect by applying the strict scrutiny principles.

42. The learned Advocate General, while arguing on this aspect, cited

Saurabh Chaudri v. Union of India[65], wherein it is observed as under:

“that in order to sustain the presumption of constitutionality the courtmay take into consideration matters of common knowledge, matters ofcommon knowledge, matters of common report, the history of the times andmay assume every state of facts which can be conceived existing at thetime of legislation;…”

43. It was further observed at para-35:

“that while good faith and knowledge of the existing conditions on the part of

a legislature are to be presumed, if there is nothing on the face of the law or

the surrounding circumstances brought to the notice of the court on which

the classification may reasonably be regarded as based, the presumption of

constitutionality cannot be carried to the extent of always holding that there

must be some undisclosed and unknown reasons for subjecting certain

individuals or corporations to hostile or discriminating legislation.”

44. It was also observed at para-36 as under:

“The strict scrutiny test or the intermediate scrutiny test applicable inthe united States of America as argued by Shri Salve cannot be applied inthis case. Such a test is not applied in Indian courts. In any event, such atest may be applied in a case where a legislation ex facie is found to beunreasonable. Such a test may also be applied in a case where by reasonof a statute the life and liberty of a citizen is put in jeopardy. This Court sinceits inception apart from a few cases where the legislation was found to be exfacie wholly unreasonable proceeded on the doctrine that constitutionality ofa statute is to be presumed and the burden to prove contra is on him whoasserts the same. The courts always lean against a construction whichreduces the statute to a futility. A statute or any enacting provision thereinmust be so construed as to make it effective and operative "on the principleexpressed in the maxim : utres magis valeat quam pereat". [see CIT v. TejaSingh and Tinsukhia Electric supply Co. Ltd. v. State of Assam]

45. In the recent Ashoka Kumar Thakur’s case (6 supra), the apex

Court had re-affirmed the views expressed in Saurabh Chaudri’s case (9

supra) and pointed out that neither the strict scrutiny test nor the intermediate

scrutiny test, as referred to in Archana Reddy’s case (1 supra), applicable in

United States, can be applied in the Indian context. Such test or tests is/are

only available in cases where legislation is ex facie found to be unreasonable

and went ahead by holding that the doctrine of constitutionality of a statute is to

be presumed and the burden to prove contra is on the person who asserts the

same. (See also M.Nagaraj’s case (7 supra) and Nair Service Society v. State

of Kerala (2007) 4 SCC 1).

46. Learned Senior Counsel Sri Anoop G.Chaudhury, representing one

of the respondents, which is a religious organisation, contended that the

challenge to the constitutionality of Act No.26 of 2007 cannot be sustained in

the absence of necessary pleadings/averments and in view of the judgment of

the apex Court in Ramakrishna Dalmia’s case (8 supra) a n d Saurabh

Chaudri’s case (9 supra). He pointed out that in P.Ranendran vs. State of

Madras[66] it was held that the contention of the writ petitioners fails if the

explanation given by the State was not controverted by a rejoinder, nor any

attempt was made by the petitioners in order to show that the caste/castes

mentioned in the list were not educationally and socially backward. In such

circumstances, the apex Court arrived at the conclusion that the castes

included in the list were backward, both educationally and socially, and the list

was not violative of Article 15(1) of the Constitution of India.

47. In the present case, no specific pleadings were made in the writ

petitions. He also relied on the principles laid down in Saurabh Chaudri’s

case (9 supra) and contended that in view of the said principles Archana

Reddy’s case (1 supra) is per incurium on the point of burden of proof, holding

that that the burden of proof is on the State to prove the Act as ‘intra vires’. He

relies on Ramakrishna Dalmia’s case (8 supra), wherein it was held that there

is a presumption of validity in favour of the legislation and, therefore, it is for

the petitioners to specifically allege and prove beyond doubt that the other

persons or companions similarly situated have been left out and the petitioners

and their companions have been singled out for discriminatory and hostile

treatment. It is on record that the petitioner Ramakrishna Dalmia failed to

discharge that onus (See also State of Kerala v. T.P. Roshana (1979) 1 SCC

572, at page 579).

48. In Archana Reddy’s case (1 supra) V.V.S.Rao, J had specifically

recorded that “if a legislation is challenged as violating Article 14 of the

Constitution of India (for that matter Article 15 and 16), it is for the State to

show that the classification satisfies the axiomatic twin test of rationality and

nexus. Be it noted that the burden lies on the State that classification by

legislation survives the tests of Article 14 of the Constitution of India.”

49. It is to be noted that prior to 1976, before

N.M.Thomas’s case [(1976) 2 SCC 310 : 1976 SCC (L & S) 227], the law was

that Articles 16(4) and 15(4) of the Constitution of India were exception to

Articles 16(1) and 15(1) of the Constitution of India. After 1976, Articles 16(4)

and 15(4) of the Constitution of India are no longer considered to be exceptions

to Articles 16(1) and 15(1) of the Constitution of India and the Supreme Court

had explained how to achieve the Constitutional mandate. In any event, after

Indra Sawhney’s case (5 supra) the law underwent drastic change.

50. After Indra Sawhney’s case (5 supra), many questions were

answered that arose in the context of Articles 15(4) and 16(4) of the

Constitution of India. Further, there appears to be an explicit conflict in the

view expressed in Archana Reddy’s case (1 supra) with regard to the

applicability of strict scrutiny. The exceptions and views expressed therein

were either self-conflicting or contrary to the principles laid down in Indra

Sawhney’s case (5 supra).

It may be relevant to mention here that, earlier bench of 5 Judges in

T.Muralidhar and others vs. State of A.P. and others[67] followed the law

laid down by the apex Court in Indra Sawhney’s case (5 supra) and rightly so,

with regard to standard judicial scrutiny. In my considered opinion, the

concepts evolved and introduced in Archana Reddy’s case (1 supra), drawn

from U.S. Laws and U.S. jurisprudence are inapplicable in the Indian context,

more so in the present context and I hold that there is no special or different

standard of judicial scrutiny in the matter of testing the affirmative action of the

State under equalities doctrine.

51. Burden of Proof:- As regards the issue of ‘burden of proof’, it has

been argued by the learned Senior Counsel as well as other Counsel appearing

for the petitioners that the entire material would be available with the

Government only and in such an event, it is rather unfair to cast the burden on

the petitioners to prove that certain classes among Muslims were socially and

educationally backward. In other words, it is their contention that the

imperativeness and the adequacy of classifying certain classes of Muslims as

socially and educationally backward is entirely on the Commission and the

State.

52. In order to repel this contention, the learned Advocate General had

drawn our attention to the observations made by the Supreme Court in Indra

Sahwney’s case (5 supra).

53. For ready reference, the said observations are extracted as under:

“… … … … … It is true that in the present cases the list of sociallyand educationally backward classes has been specified by caste. But thatdoes not necessarily mean that caste was the sole consideration and thatperson belonging to these castes are also not a class of socially andeducationally backward citizens….. As it was found that members of thesecastes as a whole were educationally and socially backward, the list whichhad been coming on from as far back as 1906 was finally adopted forpurposes of Article 15(4)’

In view however of the explanation given by the State of Madras,which has not been controverted by and rejoinder, it must be accepted thatthough the list shows certain castes, the members of those castes arereally classes of educationally and socially backward citizens. No attemptwas made on behalf of the petitioners/appellant to show that any castementioned in this list was not educationally and socially backward. In thisstate of the pleadings, we must come to the conclusion that though the list isprepared caste-wise, the castes included therein are as a wholeeducationally and socially backward and therefore the list is not violative ofArticle 15. The challenge to Rule 5 must therefore fail.” [Para 705]

“The shift in approach the emphasis is obvious. The Court now heldthat a caste is a class of citizens and that if a caste as a whole is socially

and educationally backward, reservation can be made in favour of such acaste on the ground that it is a socially and educationally backward class ofcitizens within the meaning of Article 15(4). Moreover the burden of provingthat the specification/identification was bad, was placed upon thepetitioners. In case of failure to discharge that burden, the identificationmade by the State was upheld. The identification made on the basis ofcaste was upheld inasmuch as the petitioner failed to prove that any castementioned in the list was not socially and educationally backward.”[Para606].”

54. From the above observations, it is implicit that mere allegation that

the specification/identification of a caste or class of citizen are socially and

educationally backward is unconstitutional without furnishing sufficient and

necessary material in the sense of responsibility as otherwise the affirmative

action of the State in initiating action of identification of classes among the

Muslims in the present case as socially and educationally backward by getting

examined the entire gamut of the situation through different sources by the

Backward Classes Commissions would be redundant.

55. In U.S.V.Balram’s case (supra) it was observed by the Supreme

Court at para 35 as under:

“… … … … … It may be that something more could have been done andsome further investigation could have been carried out. But, in our opinion,the question is whether on the materials collected by the Commission andreferred to in its report, can it be stated that those materials are not adequateor sufficient in support of its conclusion that the persons mentioned in the listas Backward Classes are socially and educationally backward ? We maymention in passing that we have not been able to find any definite avermentin the affidavits filed by the writ petitioners that any particular groups or classincluded in the list by the Commission is not really socially and educationallybackward. In our opinion, the Commissioner has taken considerable painsto collect as much relevant material as possible to judge the social andeducational backwardness of the persons concerned … … …” [Para 83-A] (emphasis supplied).

56. I will discuss later about my satisfaction as regards the issue of

adequacy of the exercise and the criteria done and laid down by the Backward

Classes Commission. However, though the learned Counsel for petitioners

contend that the impugned action of the State as unconstitutional, by picking

holes from the process, they could not discharge the duties to demonstrate

through and material to show that groups identified, in fact, are forward.

57. Krishnan’s Report:- It was the contention of the learned Senior

Counsel Sri K.Ramakrishna Reddy, appearing for the writ petitioners, that the

appointment of one Sri P.S.Krishnan as Advisor, almost in the capacity of a

parallel Commission, is not proper and his report placed before the

Commission was unauthorized. It is further argued that it is not open to the

Government to consult anyone other than the Commission. In other words, it

was his contention that as long as the Commission is in existence, no other

body can be appointed to perform the same function as that of the

Commission. The learned Senior Counsel further made scathe remarks

against the appointment of Sri P.S.Krishnan as Advisor to the Commission,

mainly on the allegation that his appointment was as a parallel Commission,

and his comment was that Sri P.S.Krishnan was frustrated upon the

Commission and the Government asked the Commission to copy the report of

Sri P.S.Krishnan. He further argued that there was no basis or reason for

choosing Sri P.S.Krishnan as an expert to express his opinion. He further

points out that even in the judgment of T.Muralidhar’s case (supra), his

recommendations were treated as totally incorrect and he did not use any

criteria. On this aspect the reasoning assigned by Sri B.Prakash Rao, J., is

quite elaborate and I am in total agreement with the views expressed by him in

this respect.

58. However, I only add the following:

That the works of various authors prepared in the past about various

classes in the Muslims and the history in that regard cannot be ignored. Sri

P.S.Krishnan, being a senior retired bureaucrat, had obviously done a great

deal of research on this subject and also had taken into account various facts

basing on the literary works of various authors. Incidentally, he also gave

certain illustrations relating to his personal experience also. But that does not

mean that he had arrived at a specific conclusion merely basing on some

occasional or personal experiences. He quoted such personal experiences,

which are in the nature of mere incidental, and that itself would not and cannot

render his over all research work as ridiculous and baseless. A perusal of his

report makes it abundantly clear that he had drawn inspiration and information

from various works of renowned authors and anthropologists and reports of

Survey of India. All those are the sources for acquiring knowledge in order to

put it in the form of a report. The Commission, having gone through the entire

report, appreciated the exercise done by

Sri P.S.Krishnan.

59. The report of Sri P.S.Krishnan, in my view, has to be considered as

information, inasmuch as, such information has been raised on various literary

works, coupled with historical facts and circumstances.

60. In fact, as per the Act of 1993, the A.P. Commission has the power

to regulate its own procedure and while exercising that power, it is for the

Commission to take into account any information obtained from any source,

while discarding and making recommendations to the Government on the

subject referred to it.

61. Further, the report of the Commission is neither conclusive nor

binding on the Government. It is the prerogative of the Government either to

return the report to the Commission for raising objections or to accept or reject

in full or a portion thereof and the decision of the Government would be final on

any issue, as provided under Rule 8 of the A.P. Commission for Backwardness

Rules, 1993.

62. What is deducible from the above is that –

(a) The Government or group of individuals or an individual can make a

representation or reference to the Commission;

(b) The Commission can adopt its own procedure in order to submit a

report on the matter referred to it;

(c) It can gather information from various sources;

(d) The Commission need not rely on any report of any person or officer

of the Government. However, it can take into consideration such information

furnished by either of the parties or the representative of the Government;

(e) There is no specific embargo either in the Act or the Rules that the

Commission shall not look into any material presented/ submitted to it made by

the Government.

63. Therefore, the appointment of Sri P.S.Krishnan in order to file a

report/recommendation can, at best, be termed as an Advisor to the

Department of Backward Classes for identifying BCs among the Muslim

Communities. I am of the further view that there is nothing wrong for the

Commission either to rely on the information furnished by the report of Sri

P.S.Krishnan prepared on the basis of his own knowledge collected from

various sources, including that of the Anthropological Survey of India (ASI).

64. In this context, it is necessary to see that the ASI published a set of

books (People of India) in respect of all the States. It is known fact that the

ASI is a Governmental Institution and I do not find any reason to ignore or

brush aside the information furnished by it about various groups in the Muslim

Community. Sri P.S.Krishnan also taking cue from the information from

various publications and ASI reports made an attempt to identify the social and

educational backward sections among the Muslims.

65. After all, knowledge and experience gained by anybody from any

source is meant for dissemination and to be passed on to others for a good

cause. The utility of the works of various authors, institutions or agencies, on

any subject, has to be received to the acceptable extent. It is to be further

seen that the report furnished by Sri P.S.Krishnan to the Commission was put

on Website and there were no objections offered from any quarter and,

therefore, it is too late for anyone to make any comment about the report of

Sri P.S.Krishnan so long as it is to the satisfaction of the B.C. Commission.

66. The comment about the report/recommendation/ submission of Sri

P.S.Krishnan was not based on any survey, socio-economic criteria,

representative sample collection, data analysis on the basis of the evolved

criteria and therefore, the State cannot base on such report to evolve an

affirmative action is untenable. The job entrusted to Sri P.S.Krishnan was to

identify the Backward Classes among the Muslims. While performing that

duty, he need not undertake the exercise like B.C. Commission. His job was

primarily to advise the Government. He was expected to utilize his knowledge

in the subject, make further study and submit a report after proper analysis

and assessment. Therefore he was not expected to evolve a criteria and

conduct survey and collect data. At any rate a perusal of his report shows that

he undertook his assignment in a particular method and manner and thereafter

it cannot be contended that there was no criteria followed by him.

67. As already pointed out, the material like Gazettes of Telangana,

Andhra and Rayalaseema regions and thesis reports of some scholars and the

data of ASI have been compiled from the anthropological perspective in the

report of Sri P.S.Krishnan, I do not find any force in the submission made by

the learned Senior Counsel as well as the other learned Counsel appearing for

petitioners in this regard, because on each and every detail in preparing the

report to the Government by the Commission, it may not always be possible

for the Commission to undertake the exercise in every minute area. Broadly,

the Commission has to take into account the historical background of the

Muslim community and various classes, which have been subjected to social

and educational backwardness. There were certain classes of people who

originally were not the Muslims embraced Islam as their religious faith for

various reasons and some of those sections of people are still identified

predominantly by their occupation. Such identification of classes based on

occupation are also recognized in non-Muslim groups/classes/castes.

68. These aspects, to a great deal, have been pointed out and dilated by

Sri P.S.Krishnan by his knowledge gained from the knowledge of others gained

from various other sources.

69. Therefore, I do not agree with the submissions made by the learned

Senior Counsel appearing for the petitioners that the appointment of Sri

P.S.Krishnan as Advisor and the recommendations of the Commission basing

on the report of

Sri P.S.Krishnan and other reports like ASI etc., cannot be accepted.

Elaborate reasons in this regard, have already been given by

Sri B.Prakash Rao, J. Hence, this issue is to be answered against the

petitioners.

70. Yet, another argument of the learned Counsel for the petitioners was

that ASI report, which was relied on by

Sri P.S.Krishnan, was not prepared in the context of Articles 15 and 16 of the

Constitution of India. But, it is to be noticed that though ASI report was

prepared in a different context, still the same can be relied on for the purpose

of dealing with social strata of various groups, since it has direct nexus to the

study of identification of existence of backward classes in our society. Mr.

P.S.Krishnan had taken the ASI report only in the context of identification of

backward class homogeneous groups in Muslim community. When the answer

– now identified groups can be considered as backward, keeping in view the

ASI Repot, and the description of backwardness in relation to Articles 15(4)

and 16(4) of the Constitution of India relying on the said report and analyzing

the same independently either by Sri P.S.Krishnan thereafter by B.C.

Commission cannot be found falt with.

71. Further, a perusal of the record would only indicate that the

Government did not thrust Sri P.S.Krishnan’s report on B.C. Commission with

a direction to follow the same. I am unable to find anywhere such a direction

either to Mr. P.S.Krishnan or to the Commission. On the contrary, the

Commission had made some independent enquiry, as could be seen from the

report of the B.C. Commission. Of course, the adequacy of exercise so done

by the Commission is yet another thing to be discussed.

72. As already pointed out, the Act of 1993 gives ample liberty to the

Commission to carve out its own procedure in connection with the investigation

of identification of backward classes for the purpose of Articles 15(4) and 16(4)

of the Constitution of India.

The provisions of the said Act would only indicate that the report of the

Commission is only recommendatory in nature and not binding, nor there is

anything that could be seen from the provisions of the said Act that the

Government has any power to guide the Commission. Any information

furnished by the Government through an officer of its own, like Mr. Krishnan or

any other authority, has to be essentially treated as only the information

furnished on behalf of the Government before the Commission for the purpose

of proper evaluation of the subject matter of the reference and arrive at the

conclusions independently.

73. It is further borne out from the record that earlier in

T.Muralidhar Rao’s case (supra), the B.C. Commission was

non-functional and, therefore, there was no reference to the Commission at

all. Instead, the Government acted on the recommendations of the

Commissionerate of Minorities Welfare. In other words, the said action on the

part of the Government amounts to supplanting the statutory authority like the

B.C. Commission, by a different body and that was a valid ground for this

Court to strike down the earlier recommendations. As per the Supreme Court,

in Mandal’s case (supra), the State has to mandatorily take the opinion and

recommendations of the APCBC. The appointment of Sri P.S.Krishnan was

only as an advisor and it is the prerogative of the State Executive to gather the

material/information on its own because finally it is for the State Government to

take a final decision/view in the matter. Even if the said information gathered

by it is furnished to the B.C. Commission for its consideration no exception

can be taken to such procedure. This Court in earlier decisions held that it is

always open for the Government to furnish whatever material it has entrusted

with work. What is important is to achieve the constitutional goal and to

achieve that the Government is well within its competence to take all steps in

that direction as long as the same is not in violation of any standard provision

and/or the dicta of the apex Court/this Court. Hence, the appointment of Mr.

Krishnan cannot be challenged, nor the report/submissions made by Mr.

Krishnan deserve to be totally ignored.

74. In fact, the report of Mr. Krishnan, or for that matter, the statistics

and other material particulars by ASI and other sources have got to be

essentially taken into consideration by the Commission in order to arrive at a

just conclusion.

75. After all, from the profile of Mr. Krishnan, as was demonstrated by

the learned Advocate General, he has been associated with the tasks

pertaining to identification and welfare of backward classes since many

decades.

76. In my view, it is not an easy task for anyone to gather the relevant

information from a huge and enormous material available to any inquisitive

reader and that task appears to have been successfully and to a great deal

was done by Mr. Krishnan and it is for the Commission either to receive or

reject to the extent relevant. Further, such acceptance or rejection of the

recommendations of the Commission, either in part or wholly, is again subject

to satisfaction of the Government.

77. Therefore, the Government would also be essentially a party before

the Commission, while dealing with the matters like this. In such an event, it is

totally within the domain of the State Executive to appoint an individual having

sufficient expertise or knowledge to the present facts not only from social

perspective, but also of the State. Therefore, various submissions made on

behalf of the petitioners, in this regard, are to be rejected.

CRITERIA :-

78. Some of the learned counsel appearing for the petitioners were

critical about the pace at which the Commission proceeded with the enquiry. It

was pointed out that all steps have been taken in tremendous hurry within 45

days commencing from 17-4-2007 – the date of reference letter from the

Government to the Commission and during this short span of time, 2 reports,

public hearing, discussions, decisions and the Act have all been completed.

79. Of course, some times the speedy and expeditious action on the

part of the functionaries of the State or in the present context the Commission

would also be subjected to criticism on various counts. But, this cannot be

countenanced, inasmuch as, the State is expected to complete the exercise

and arrive at the conclusions with utmost expedition, of course, coupled with

due diligence. Unless and until it is demonstrated that such speedy action was

either mala fide or resulted in irreparable injustice to other sections of the

people, the same cannot be subjected to criticism. After all, much is talked

about the inertia on the part of various functionaries of the Government. At

this juncture, one should not loose sight of the fact that for decades, the

deriving groups of Muslim community were denied of the affirmative action,

which their counterparts in Hindu community are recipients of such benefit.

Any delay in this regard would be unconstitutional.

80. But, in the present context, since several people are likely to be

effected in one way or the other, it is hard for me to make any comment on

such expeditious job undertaken by the Government and entrusted to and

executed by the Commission. In other words, this Court has to examine only

the aspect -- whether the Commission’s report was based on relevant material

and the ‘criteria’ adopted by it is reasonable or not ? In my opinion, in matters

of this nature, this Court would not and should not be swayed away under the

guise of judicial review, with what even adjectives one may add, based on the

contentions of petitioners which may look very attractive at the first blush. As

held by the apex Court in Mandal’s case (supra), there cannot be a fool-proof

procedure and that courts shall not interdict State’s affirmative actions on

trivial and technical grounds and doing so would amount to sacrifying the rule

of law at the alter of procedures.

81. I am of the view that the ‘criteria’ that is expected to be adopted by

the Commission need not essentially be the one in the nature of exception.

Suffice it to say that the ‘criteria’ or ‘adequacy’ of the exercise undertaken by

the Commission is rationale and reasonable.

82. The apex Court in Mandal’s case in paras-782, 783, 796 and 797

had pointed out that there cannot be any one single and uniform procedure or

approach for the B.C. Commission to adopt in the matter of identification of

backward classes. It was specifically pointed out in the said case that it is for

the body, like the Commission, to adopt such approach and procedure as it

deems appropriate. Further, it could be seen that no particular/uniform

procedure was laid down by the apex Court.

83. Further, the scrutiny of such procedure adopted by the Commission

cannot be tested on the anvil of strict scrutiny.

The scope, relevance and contour of strict scrutiny have already been

discussed in the earlier paragraphs. In simple terms, what all required from

the criteria and the adequacy for and of the investigation/examination, for the

purpose of identification of the classes among the Muslims for the purpose of

Articles 15(4) and 16(4) of the Constitution of India is prima facie rationality

and reasonableness. The in-depth scrutiny of the criteria and the adequacy of

enquiry of the Commission may some times render the said object of the State

nugatory and the enquiry and the consequential report by the B.C. Commission

as superfluous.

84. Incidentally, it may be seen from the judgment in Archana Reddy’s

case (1 supra), wherein V.V.S.Rao, J pointed out that when legislation was

challenged on the ground of competency of the State, the Court has to insist

upon the strict scrutiny test. In this regard, it is to be pointed out that it is not

the case of the petitioners, at least in the present case, the State lacks

competency.

85. It is the further contention of the learned Senior Counsel appearing

for the petitioners that the Commission had simply relied on the report of Sri

P.S.Krishnan without conducting independent enquiry/survey, but a perusal of

the report of the Commission would only that the Commissioner had made use

of some sound material as was felt fit from the report of Sri P.S.Krishnan.

The Commission had also followed the ‘Fast Track’ and ‘Rough and Ready’

methods and conducted its own enquiry/survey as deemed necessary.

86. To illustrate, the findings of the Commission are totally independent,

it is necessary to look at 2 identified groups i.e., ‘Achukattlavandlu’ and

‘Thurka kasha’. There was no reference of these two social groups in the

report of Sri P.S.Krishnan. This would show that the B.C. Commission has not

copied the report of

Sri P.S.Krishnan in toto.

87. The learned Senior Counsel appearing for the Commission also

submitted that the Commission had also consulted the report of the Sachar

Committee, the report of the ASI etc., while studying 15 communities with

reference to their social and educational backwardness in the report. The

Commission had also conducted its own survey and collected the data. The

Commission had categorically indicated the methodology of the survey

conducted by the B.C. Commission in its report. It was stated therein that the

Commission had deputed a survey team, headed by the Deputy Director

(Statistics) conducted door-to-door survey. They adopted a questionnaire, for

identification of the social and educational backward classes in the Muslim

community, which brings out the following factors, which otherwise can be

termed as ‘criteria’.

It reads as thus:

“a) Social status

b) Occupation

c) Aspects of discrimination with regard to profession,

occupation, social situation.

d) Economic status

e) Details of ownership of movable and immovable property

etc.

f) Status of indebtedness

g) Access to amenities like telephone, personal transport

h) Details of residence and whether living in a slum

i) Literacy and Level of education completed

j) Details of employment if any in public services.

88. It is clear from the report of the Commission that the National

Commission for Backward Classes (NCBC) Guidelines were kept in mind,

which include ‘procedural verifications to guidelines’ and ‘guidelines for filling

the questionnaire’ and also questions pertaining to ‘fast track.’ All the social

groups among the Muslims, which are considered to be as belonging to

socially and educationally backward, have been detailed with reasons and

statistics. A broad look at the entire statistics about each group would reveal

their occupation, self-perception, social discrimination, illiteracy etc. It has

gone into the aspect of the economic activity among the workers in those

social groups.

89. The learned Senior Counsel Sri Prakash Reddy and other learned

Counsel appearing for the petitioners were again critical about each of the

social group. In that process they tried to highlight the aspects of the

percentage of social perception of each group, their social status as belong to

urban areas. But, I do not find any need to be too incisive about all those

aspects. For example, the percentage of the self-perception in some cases

about their status is more 50 per cent. In my considered view, that does not

mean that they have been commanding reasonable esteem in the society. It is

not the question how those social groups are perceiving about themselves.

What matters is how the society at large is looking at them. What really

matters is to see how they are placed in social strata and to see whether are

socially backward. How to identify social backwardness was enumerated in

NCBC guidelines which are broadly accepted and followed by B.C.

Commission.

90. It further reveals that most of those groups are identifiable with their

respective occupations. It has been pointed out by the learned Advocate

General that many of those social groups among the Muslims are practising

their traditional occupations just like their counter-parts in non-Muslim

groups/classes/castes. For example, a Dhobi (a washerman), a Hajam (a

barber) etc.

91. As could be seen from the literature placed before the B.C.

Commission by the report of Sri P.S.Krishnan and also the ASI reports, it

appears that it is a historical fact that excepting a fraction, the rest of the

Muslim population in India are from the low caste Hinds converted owing to the

historical background, which fact cannot be ignored. It is an undeniable fact

that there is no caste system prevalent among the Muslims. But, there exists

classification among themselves for various reasons – their occupation, which

is menial in nature in the eye of the society. Here I may add that the malady of

caste system though not in its rigid form percolated to Muslim society in India.

This aspect has been judicially recognized by the apex Court in Mandal’s case

(supra) and by this Court in Archana Reddy’s case (supra). Therefore,

identifying the groups of people within Muslims cannot be found fault with and if

there are identifiable groups amongst the Muslims answering the description of

socially and educationally backward class, they totally driven to be included in

Backward Classes list.

92. In Indra Sawhney’s case (5 supra), Jeevan Reddy, J. has observed

at paras 782 and 783 thus:

“Coming back to the question of identification, the fact remains thatone has to begin somewhere - with some group, class or section, There is

no set or recognised method. There is no law or other statutory instrumentprescribing the methodology. The ultimate idea is to survey the entirepopulace. If so, one can well begin with castes, which represent explicitidentifiable social classes/groupings, more particularly when Article 16 (4)seeks to ameliorate social backwardness. What is unconstitutional with it,more so when caste, occupation poverty and social backwardness are soclosely intertwined in our society? [individual survey is out of question, sinceArticle 16 (4) speaks of class protection and not individual protection]. Thisdoes not mean that one can wind up the process of identification with thecastes. Besides castes (whether found among Hindus or others) there maybe other communities, groups, classes and denominations which mayqualify as backward class of citizens. For example, in a particular State,Muslim community as a whole may be found socially backward. (As amatter of fact, they are so treated in the State of Karnataka as well as in theState of Kerala by their respective State governments ). Similarly, certain S.and denominations among Christians in Kerala who were included amongbackward communities notified in the former princely State of Travancoreas far back as in 1935 may also be surveyed and so on and so forth. Anyauthority entrusted with the task of identifying backward classes may wellstart with the castes. It can take caste 'a', apply the criteria ofbackwardness evolved by it to that caste and determine whether it qualifiesas a backward class or not. If it does qualify, what emerges is a backwardclass, for the purposes of clause (4) of Article 16. The concept of 'caste' inthis behalf is not confined to castes among Hindus. It extends to castes,wherever they obtain as a fact, irrespective of religious sanction for suchpractice. Having exhausted the castes or simultaneously with it, theauthority may take up for consideration other occupational groups,communities and classes. For example, it may take up the Muslimcommunity (after excluding those sections, castes and groups, if any, whohave already been considered) and find out whether it can be characterisedas a backward class in that State or region, as the case may be. Theapproach may differ from State to State since the conditions in each Statemay differ. Nay, even within a State, conditions may differ from region toregion. Similarly, Christians may also be considered. If in a given place, likeKerala, there are several denominations, S. or divisions, each of thesegroups may separately be considered. In this manner, all the classesamong the populace will be covered and that is the central idea. The effortshould be to consider all the available groups, S. and classes of society inwhichever order one proceeds. Since caste represents an existing,identifiable, social group spread over an overwhelming majority of thecountry's population, we say one may well begin with castes, if one sochooses, and then go to other groups, S. and classes. We may say, at thisstage, that we broadly commend the approach and methodology adopted bythe Justice O. Chinnappa Reddy Commission in this respect.

We do not mean to suggest - we may reiterate - that the procedureindicated hereinabove is the only procedure or method/approach to beadopted. Indeed, there is no such thing as a standard or modelprocedure/approach. It is for the authority (appointed to identify) to adoptsuch approach and procedure as it thinks appropriate, and so long as theapproach adopted by it is fair and adequate, the court has no say in thematter. The only object of the discussion in the preceding para is toemphasise that if a Com- mission/authority begins its process ofidentification with castes (among Hindus) and occupational groupingsamong 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 beapplied 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 todiscover and locate backwardness, and if such backwardness is found in acaste, it can be treated as backward; if it is found in any other group, S. orclass, they too can be treated as backward.”

93. It is pertinent to note that in para 788 it was further pointed as under:

“…… The Shudras, the Scheduled Castes and the Scheduled Tribes and

other similar backward social groups 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. ……” (emphasis supplied)

94. It was further taken note of in the same para that beside castes

(whether found among the Hindus or others), there may be other communities,

groups, classes and denominations, which may qualify as backward classes of

citizens. It was further taken note of that the Muslim community as a whole

may be found socially backward like in the States of Karnataka as well as

Kerala. Are those Muslims in those States alone are backward and all the

Muslims in the State of Andhra Pradesh do not deserve any classification for

the purpose of Articles 15(4) and 16(4) of the Constitution of India. If answer

is that certain groups of Muslims deserve benefit under Articles 15 (4) and 16

(4) of the Constitution the extension of that benefit shall not be delayed further.

95. One of the issues that fell for consideration in Archana Reddy’s

case (1 supra) was whether the dispensation therein was religion specific. The

bench observed that the reservation of 5 per cent to the Muslims as a whole

was bad in law, inasmuch as, the said benefit conferred upon them was

religion based. For the present, I am not entering into that area of

controversy. However, the identification of some of the social groups among

the Muslims as socially and educationally backward is a well-recognized

aspect by the State. The simple reason being, all those social groups are

identified with their traditional occupations, which are considered to be very

mean/low in the society. These insular groups are distinct by themselves,

have distinct features, may be by virtue of their occupation or other habits or

the place in and around they live, their relationship with other sections among

the Muslims etc.

96. It was pointed out by various authorities before the Commission as

well as the report of Sri P.S.Krishnan that the classes of higher strata even

among the Muslims do not prefer to move or have any close proximity with the

other socially backward groups. In other words, the common factor between

these two broad groups i.e., the higher and low is only religious faith and

nothing else. It is no wonder if it is said that there is no area where the higher

and lower strata meet together.

97. It is a known fact that mostly in rural areas the persons, who are

involved in doing mean jobs or following traditional occupations, normally will

be identified by their traditional occupation only, notwithstanding their religious

faith. It is the NCBC that has evolved a procedure, called ‘fast track’ method.

The questions that were suggested in Part-II (A) of the NCBC guidelines, which

relate to the traditional craft, approximate number of persons from the family

actually engaged in that craft, or whether such caste/community is either

traditional or hereditary occupation and whether such traditional or hereditary

occupation is, in terms of the caste system, regarded to be low, undignified

unclean or stigmatized etc.?

98. In my view, these questions suggested by NCBC through its

guidelines are actually meant for estimating the social strata of various

groups/sections even among the Muslims.

99. From the report of the Commission and the other material supplied

by the research workers, as well as Sri P.S. Krishnan’s report, it suggests that

there are several groups among Muslims, who do not have any permanent

place to live, the study and survey and the material/data gathered will show

that, in the whole process the B.C. Commission had identified such social

groups deserve to be included in B.C. list.

100. In some cases, it is difficult to find out some kind of these social

groups at a particular place or District or region in the State, inasmuch as, they

will be moving around. Even if an enquiry is conducted in a particular area,

incidentally at that point of time, they may not find any one because those

people belonging to that particular class might have moved to other places in

search of their traditional or hereditary occupation to eke out their livelihood.

101. These ground realities have to be taken into consideration and

viewed from the spectacle of pragmatism rather than what actually meets the

eye. I am of the view that it is those groups/sections of people from among the

Muslim community, who are otherwise insignificant, or for that matter

irrelevant to the other stratum of the society, who are expected to be extended

the benefits and the rights created and guaranteed under the Constitution of

India. If strict scrutiny test, as propounded in Archana Reddy’s case (1

supra), is followed and entertain the technical and trivial contentions raised by

the petitioners, then the very exercise will be unfruitful and constitutional duty

of the State will become illusory.

102. Here, it is to be noted that, is not such stratification among Hindus

was done?

The answer would be ‘Yes’.

103. That is the reason why, if put in a simpler manner, various groups

in the society, which are very low in many respects, particularly in the context

of the Fundamental Rights under Article 15(4) and 16(4) of the Constitution of

India were identified as either belonging to Scheduled Castes, Scheduled

Tribes and Backward Classes.

104. Among Hindus, it is necessary to classify the groups/classes

identifying them on the basis of their caste.

The reason is, the division of people among Hindus is primarily based on

caste, which is not available to Muslims. It is only their historical back ground,

their glory and their standard of living in the past identifiable with their family

name, which, over a period of time made them as belonging to a higher class

or higher strata among Muslims. But, the other social groups, who according

to the renowned historians and as was referred to and presented by Sri

P.S.Krishnan in his report, many a people in various parts of the country have

chosen to embrace ‘Islam’ since some incentives have been accorded to them

in the past, the details of which are not relevant now.

105. But, the fact is that good number of people followed Islamic faith

because of their low standard of living and because of the benefits extended by

the Rulers or other persons of high esteem. One other reason for such exodus

from lower strata of Hindus to Islam was to wriggle out of the discriminations

caused due to caste stratification and in search of a faith which professes

brotherhood amongst all. In other words, it is the historical truth that several

people, who were suffering from either poverty or other social stigmas, in order

to get themselves alleviated from the said problems, embraced Islam.

Nevertheless, many of them did not give up their traditional occupations.

Therefore, it is an undisputed and undeniable fact that even among Muslims,

there is social stratification, except the religious faith in Islam. Therefore, it is

for the State to take all such steps in the context of Article 14 of the

Constitution of India and see that the benefits under Articles 15(4) and 16(4) of

the Constitution of India are also allowed to reach those social groups, which

remained all through as insignificant groups in the society with attached social

stigmas.

106. A careful glance at various groups of Muslim community that were

identified by the Commission in the present case would show that their

educational standards are very low, the treatment by others is predominantly

ether inferior and occasionally normal and the rate of literacy is also very

poor. In some of the groups we could see that the rate of self-perception is

high. But the perception of the rest of the society against these groups is very

low. Most of them are identified only with their traditional or hereditary

occupations and such occupations are considered to be very mean. But, it is

to be seen that many of such traditional occupations/services by these social

groups are very relevant and essential to the members of the rest of the

society. For Eg: ‘Hajam’ means barber; ‘Dhobi’ means washerman etc. Some

of the social groups are involved in other occupations which offer

entertainment to the people.

107. Now, the question is can those people belonging to such groups

ever be thought of in terms of the constitutional goal with special reference to

Articles 14, 15 and 16 of the Constitution of India, more particularly Articles

15(4) and 16(4) in the present context. If a question is ever posed from such

social groups to the effect that what are their rights guaranteed under the

Constitution (we cannot expect such a question being posed by them because

they are totally ignorant of their rights guaranteed under the Constitution), no

answer, much less satisfactory, would be offered by the State.

108. It has been argued by the learned Advocate General that the

present groups of people practice ‘endogamy’. This aspect has been referred

to in Sri P.S. Krishnan’s report. In other words, these social groups, which

have been considered as very low in the society for centuries, by virtue of their

practice and involvement in the traditional occupations or hereditary

occupations, not only remained as such, but also contribute their progeny to

the society with the same status which they have been suffering from

centuries.

As a result, barring a stray instance, mostly a barber’s children would remain

as barbers and a dhobi’s children would remain as dhobis. Even a perusal of

the report of the Commission further shows that there is some considerable

employment in these groups of people. But, again the question is -- what is the

nature of their employment? The answer is that most of them are involved in

very low jobs in any Governmental or non-Governmental organizations.

109. Further, the rate of literacy is also very low. Of course, it has been

pointed out by some of the learned counsel appearing for the petitioners that

many people in Muslim community are literate. But, a close look at this would

only show that the level of literacy is only to the extent of 5th standard, 7th

standard or 10th standard with minuscule exceptions. In other words, even if

they get employment by any chance, such an employment would again keep

such person at the lowest level only.

110. The criteria laid down by the Commission has to be looked in a

broad perspective, but not in a narrow sense by picking up some stray

instances here and there. Further, it has been pointed out by Sri P.S. Krishnan

in his recommendations presented before the Commission that even among

the Hindus, there are people, who were classified as belonging to backward

community, practicing the traditional occupation, like ‘Nayee Brahmin’ (barber),

which is equivalent to ‘Hajam’ in Muslim community. Many of the

recommendations of Sri P.S. Krishnan, coupled with the statistics furnished by

the Commission in its independent investigation, would reveal that such results

of the investigation and recommendations of Sri P.S. Krishnan would correlate

with the study of ASI.

111. There are some instances pointed out that in some sections the

rate of literacy is much lower than the rate of literacy among Scheduled Caste

community in Hindus. For Eg: ‘Hajam’ community (barbers).

112. It has been pointed out by the learned Advocate General that the

Commission had not only conducted independent investigation, but also

followed the guidelines of National Commission i.e., ‘Fast Track method’ and

‘Rough and Ready method’ of Mandal Commission. As already pointed out,

adopting of these two methods/guidelines of NCBC and Mandal Commission by

the B.C. Commission is in addition to its own independent enquiry.

113. It is the case of the petitioners that B.C. Commission has not

evolved any criteria whatsoever. This is factually incorrect. The B.C.

Commission has evolved a criteria and based the said criteria from the

criteria/indicators evolved by NCBC. The petitioners have not challenged the

criteria evolved by NCBC. Even otherwise I see no reason to find fault with

the criteria/indicators/questionnaire prepared by it as the said criteria was

evolved based on the experiences of earlier Commissions. There is a great

deal of criticism and discussion on the quality and adequacy of such

investigation.

114. At the cost of repetition, I may point out that there is nothing wrong

committed by the Commission in adopting its own procedure, which was

categorically indicated in its report, and also placing reliance on various

literary works relating to historical back ground and also the recommendations

of the well experienced persons like Sri P.S. Krishnan. In fact, Sri P.S.

Krishnan has been associated himself with the problems of these groups since

several years. His extensive reading and experience richly deserves to be

taken into account by any Commission. Therefore, in my considered view, the

Commission, in the present case, had conducted itself on right lines by

conducting an independent enquiry and also taken into consideration various

works and experience of others by following the guidelines of National

Commission. It may be relevant to point out that as per “Fast Track” method

evolved by NCBC which was adopted by B.C. Commission, insofar as certain

social groups are concerned, there is no necessity to undertake a detailed

probe/study /enquiry to determine their social and educational backwardness

inasmuch as, there are certain social groups in our society which would fit into

that bracket straight away. That is the reason why NCBC, a body well

acquainted with the subject, came out with “Fast Track” method and gave the

indicators to identify such social groups. This procedure cannot be found fault

with as the apex Court recognized the aspect that there are certain social

groups which by mere mention of their name would evoke that they are

backward. In the present case, almost all social groups, now identified fall

under “Fast Track” and/or “Rough and Ready” method. Even then the

Commission has conducted survey before submitting its report. Therefore, the

B.C. Commission recommendation cannot be held be illegal.

115. As already pointed out, this Court has to look at the issue in

broader perspective keeping in view the ground realities, instead of pointing out

some issues which appear to be the defects in conducting the enquiry and

preparing the report. In order to achieve the Constitutional goal, small and

stray defects, even if any, ought not to be attached with any significance. In

other words, such defects that are pointed out in the report of the B.C.

Commission shall fade into insignificance in the interest of securing social

justice and marching ahead towards the constitutional goals.

116. As pointed out above, the B.C. Commission in the present case

conducted independent survey in consonance with the guidelines issued by the

NCBC i.e., ‘Fast Track’ method. In a way, this method implies that

identification of groups would be easier and faster. It is in the public

knowledge that this issue has been in consideration in various methods on

various occasions in different ways and in different words for several years.

Therefore, avoidance of avoidable delay is not only acceptable, but also

laudable. The expeditious conclusion of enquiry by the Commission is the

expectation of the State. Therefore, the Commission cannot be faulted with for

observing the guidelines of ‘Fast Track’ method and ‘Rough and Ready’

method and submitting its report in order to meet the expectation of the State

and to achieve the purpose for which it was constituted. In the instant case,

as already stated above, all the groups identified, except the Shaiks, would fall

under ‘Fast Track method’ and/or ‘Rough and Ready method’ as prescribed by

the NCBC and Mandal Commission, respectively.

117. Of course, in the report submitted by the Commission, there may

be certain areas which may result in some criticism. But, as already pointed

out, in the larger interest of identification of Backward Classes among

Muslims, it is expedient to look at the issue, in its entirety, in a broader

perspective, instead of being too critical than required about some

deficiencies/defects that occasioned now and then and here and there, which,

in fact, can be sought to be redressed by the Commission either at the

instance of the Government or the person aggrieved and hence such

deficiencies, if any, by itself are not capable of vitiating the exercise done by

the Commission. [See para-850 of Indra Sawhney’s case (5 supra)].

118. In my considered view, the kind of attack on the Commission’s

report is devoid of realistic and holistic approach and, on the other hand, the

broader spectrum of the main issue had been made too narrow to look at.

119. After all, the report of the Commission cannot be treated as a

complete answer or panacea to all the problems that were placed before it or

the task that was entrusted to it and for all times to come. The

recommendations made by the Commission cannot be treated as conclusive

as such, nor the same are binding on the State.

120. Several other issues may sprout up in future in the process of

various changes, like social, economic, political etc.

As and when such problems arise, the mechanism to address such problems

is already made available in the Act of 1993. In other words, either the

Government or individual or group of individuals may approach the

Commission seeking Redressal of their grievance and the recommendations of

the Commission have to be considered by the Government as prescribed by

the Statute.

121. It has been pointed out incidentally by the learned Senior Counsel

appearing for the Commission that at the time of Ananth Raman Commission,

there was no such general guiding criteria as ‘fast track’ and ‘rough and ready’

methods to identify the social and educational backward classes and in such

circumstances, Ananth Raman Commission had adopted much wider and

longer methods of conducting survey in order to collect data for the purpose of

formulating a criteria in order to identify the socially and educationally

backward classes.

122. Incidentally it has been further pointed out that it is the Mandal

Commission that had evolved 11 indicators and gave appropriate weightage to

such indicators only in respect of the Hindu communities and for non Hindu

communities, separate criteria has been evolved and such criteria has been

reproduced in the report of the Andhra Pradesh Commission for Backward

Classes at page 200.

123. The relevant portion from the Commission’s report deserves to be

extracted for ready reference, which is thus:

“12.18 After giving a good deal of thought to these difficulties theCommission has evolved the following rough and ready criteria foridentifying non Hindu OBCs:-

(i) All untouchables converted to any non-Hindu religion; and

(ii) Such occupational communities, which are known by the name oftheir traditional hereditary occupation and whose Hindu counterpartshave been included in the list of Hindu OBCs. (Examples : Dhobi,Teli, Dheemar, Nai, Gujar, Kumhar, Lohar, Darji, Badhai, etc);”

124. Therefore, I am of the view that the Commission was not wrong in

adopting either ‘rough and ready’ method or ‘fast track’ method in identifying

the backwardness among some groups of the Muslims by identifying them with

their hereditary or traditional occupations.

125. It is common knowledge in rural areas, a person would be

addressed not necessarily by his name but by his occupation.

In such cases, backwardness has to be attached not only to those people who

address people by their occupation, but also to the persons who are addressed

by their occupation. In other words, backwardness in perception is much low

compared to the social and educational backwardness. If put slightly in a

different way, even individuals belonging to non-Hindu groups like Muslims in

the present case, would be addressed by their occupation and therefore, the

backwardness is identifiable with the traditional or hereditary occupation

notwithstanding one’s religious faith.

126. The minds of those sections of people in my opinion have been well

tuned that he is being identified with his traditional occupation only but not by

his name and that the Society cannot be faulted for the same. In other words,

the identity of the individuals belonging to these sections is their occupation

and nothing else because they have no other recognized social status by

which they will be placed on a higher stratum. It is the obligation on the part of

the State to ameliorate and augment the social standards of these social

groups belonging to the Muslims.

127. In Ashoka Kumar Thakur’s case (6 supra), the working of the

NCBC on grounds including that no guideline or criteria were evolved by the

Commission. However, it was noticed by the apex Court various guidelines

that were that were prescribed by the NCBC and Sri Balakrishnan, CJI, in his

judgment had reasoned that the elaborate questionnaire was prepared by the

NCBC and the answers in that questionnaire were considered in detail for

inclusion/rejection in the list and concluded by saying that, “it is clear that the

lists of socially and educationally backward classes of citizens are being

prepared not solely on the basis of the caste and if caste and other

considerations are taken into account for determining backwardness, it cannot

be said that it would violative of Article 15(1) of the Constitution.”

128. Even in Archana Reddy’s case (1 supra) this Court also had

referred to the NCBC guidelines and appreciated the role adopted by it.

129. The above guideline has a direct bearing on the occupation either

hereditary or traditional on various social groups, be it the Hindus or the

Muslims. As already pointed out above, whether it is a Hindu or a non-Hindu

whoever is involved in a particular occupation will be identified with that

occupation for the purpose of assessing the backwardness. So, if a

naibrahmin (barber) in Hindu community belongs to a backward class, how a

hajam (barber) can be treated as not belonging to backward class among

Muslims. Perhaps that is the reason why the NCBC had formulated the above

guideline indicating that the individuals who have no other mark in the society

for identification, all shall be treated as having been suffering from the same

backwardness as his occupational counterparts.

130. Therefore, what is obvious is – many of the social groups among

the Muslims have been involved in the same occupations among the Hindus

which were classified as backward. Here comes the role of Article 14 of the

Constitution in the context of Articles 15(4) and 16(4) of the Constitution with

regard to socially and educationally backward classes among the Muslims.

Whether the APCBC’s Report and Recommendations are vitiated by

failure to publish criteria in advance, amounts to lack of transparency and

violation of the principles of natural justice ?

131. It was argued by the learned Senior Counsel

Sri Ramakrishna Reddy and also the learned Counsel

Sri Ravichandran that the APCBC ought to have informed at least to the

objectors about the criteria to be adopted and also provided data and material

collected by it. The failure of the CBC in this regard is violative of the

principles of natural justice.

132. In this regard, as pointed out by the learned Advocate General that

the apex Court did not at any time held that the criteria evolved/adopted by the

Commission need to be published. The APCBC Act 1993 also would not

obligate the Commission to publish the criteria evolved. In this regard, it has

been pointed out by the learned Advocate General that the Commission was

entrusted with two different functions under Section 9 (1) of the APCBC Act,

1993 – firstly; to ‘examine’ the requests for inclusion of any class of citizens

as ‘backward class’ in the ‘list’ and secondly; to ‘hear’, ‘examine’ the

complaints of over-inclusion or under-inclusion of already included ‘Backward

Classes’ in the ‘list’.

133. So far as the first function is concerned, the Commission is not

expected to finally decide about the rights of class of citizens and on the

contrary, it is supposed to submit its recommendation as a fact finding

authority.

134. So far as the second function is concerned, the Commission has to

deal with the ‘Backward Classes’, which were already included in the ‘list’ and

express its view about the excess-inclusion or under-inclusion of any

backward class in the ‘list’. The concept of ‘hearing’ as enunciated under

Section 9 (1) of the APCBC Act, 1993 and the question of furnishing material to

the objectors does not arise, inasmuch as the same is not adversarial

litigation.

135. In other words, at the stage of ‘hearing’, it cannot be construed as a

‘lis’ involved. If that is the real intention of the Legislature, the expression

‘examine’ would turn out to be a regular and routine litigation before a court or

courts of law and in such an event, it would again turn out to be an unending

litigation leading to far reaching consequences in the society and as a

consequence thereof, the constitutional obligation on the part of the State in the

context of extending the benefits under Articles 15(4) or 16(4) of the

Constitution would and could never be achieved and in all probability, may lead

to a social disorder or disharmony. In other words, Section 9 (1) of the Act of

2007/1993 would only contemplate ‘examination’ but not ‘hearing, since the

Legislature is absolutely clear in its mind in not employing the expression

‘hearing’, was obviously for the above reasons.

136. So far as the other limb of Section 9 (1) of the Act is concerned,

complaints can always be made by the person or persons aggrieved as and

when it was felt that there was an excessive inclusion or under inclusion, as

the case may be, of a class in the category of socially and educationally

backward classes and in such a case, there would be “hearing” of the

aggrieved persons belonging to a particular class.

137. Therefore, in the context of the second limb of

Section 9 (1) of the Act, it is not as though the aggrieved persons are denied of

the opportunity of ‘hearing’. In the present case, the question before the

Commission to address is regarding the first part of Section 9 (1) of the Act of

2007 and therefore, the aspects which have already been covered in the earlier

paras would have to be taken note of and accordingly, I am of the considered

view that the concept of introducing the ‘hearing’ and grievance that the

principles of natural justice are violated cannot be countenanced.

138. In Archana Reddy’s case (1 supra), Sri V.V.S.Rao, J., had made

certain observations at para 325, which are as under:

“ … … … We may add that mere educational backwardness and politicalbackwardness of a class/group of citizens for different sociological andcultural reasons, by itself would not lead to an inference that the class/groupis backward. Such an approach would not only ignore the law laid down bythe Supreme Court but also amounts to putting cart before the horse. Bethat as it is, as we already noticed, the "absence of social structure, socialhierarchy, absence of technology to control the environment, traditionalapathy for education on account of such social status, organization in thesociety to create inducements to uplift people and improve economy, andabsence of paraphernalia like enterprise, economic resources for creatingsocial welfare are all indicative of social backwardness".

139. The above observations indicate that mere educational

backwardness and political backwardness may not lead to an inference that

such class/group is backward.

140. It is indiscernible in this context as to how in the context of Articles

15(4) and 16(4) of the Constitution the educational backwardness and political

backwardness can be mixed.

141. Political backwardness is totally a different subject and certainly

not covered by either Articles 15(4) or 16(4) of the Constitution and the above

observations are again contrary to the principles laid down in Indra Sahwney’s

case (5 supra).

142. Basically the issue before the Court was as to whether the Muslim

community as a whole can be declared as socially and educationally backward

and political backwardness does not find any place in that context and on that

premise, the learned Judge had proceeded, with which I respectfully disagree.

143. Later part of the above observations, in fact, are the views

expressed in Pradip Tandon vs. State of U.P. The said case was decided by

a 3-Judge bench of High Court of Allahabad.

144. Keeping in view the totality of the circumstances and the context, I

am of the view that the observations made by a 3-Judge bench of High Court

of Allahabad in Pradip Tandon’s case (supra) cannot be accepted and I am of

the further view that

Sri V.V.S.Rao, J., in my considered opinion, was totally misplaced in placing

reliance on those observations, which are totally not relevant nor binding on

this Court in the light of the analysis made by the apex Court in Indra

Sahwney’s case (5 supra).

145. In Archana Reddy’s case (1 supra) Sri V.V.S.Rao, J. further

pointed out, in paras 276 and 292, that the Commission shall conduct enquiry

in a scientific method for the purpose of effective enforcement of Fundamental

Rights in Articles 15 and 16 of the Constitution. But, again these observations

are contrary to the principles laid down in Indra Sahwney’s case (5 supra),

wherein it was said that the enquiry need not necessarily be scientific.

146. A good deal of discussion has been made by

Sri V.V.S.Rao, J., about the transparency in governance and fair procedure in

administration. The learned Judge observes in this connection that the

transparency and fair procedure in administration is sine qua non and basic

facet of ‘rule of law’ (see para 279).

147. In this regard, it is necessary for me to reiterate that the

Commission was discharging its functions under Section 9(1) of the Act, 1993,

and while discharging such a function, it was not deciding any rights and

instead, dealt with only fact finding and discharges the duty of making

recommendations only. Therefore, the Commission, while exercising the

powers under Section 9(1) of the Act, 1993, cannot deal with the concept of

governance or fair procedure in administration. Even otherwise, there is no

yardstick to measure the transparency or fair procedure adopted by the

Commission. These two aspects are subject to the satisfaction of the

government, which is the authority and can take a final decision after

considering the recommendations of the Commission.

148. The Commission, as was already pointed out, was not dealing with

adversarial litigation and was only performing its duty as a fact finding

authority. In fact, the Commission is not expected to conduct the enquiry or

investigation or examine (in the present case, ‘examine’ as per Section 9(1) of

the Act, 1993) as a regular court deciding a ‘lis’ between the parties.

149. The apex Court in KESHAR SINGH vs. STATE (DELHI ADMN)

[(1988) 3 SCC 609] held that the Commission constituted under Commissions

of Enquiries Act is not deciding any lis and the process of Commission, in

such cases, is inquisitorial rather than adversarial.

150. It has been pointed out by the learned Senior Counsel

Sri Satyanarayana Prasad, representing the Commission, that in none of the

earlier Commissions, including Anantha Raman’s Commission, made such

pre-publication. It is further pointed out that, in fact, in Anantha Raman’s

Commission, the criteria was arrived at after collection of its material and the

said criteria was not pre-notified or pre-published. Even in Mandal

Commission’s report, the Commission did not pre-notify or pre-publish the

criteria.

151. In the light of Indra Sahwney’s case (5 supra), it is to be pointed

out that nowhere in the said case, the apex Court described that the

Commission should publish the criteria in advance. It is not the intention of the

apex Court to tie down the Commission with the conditions which would render

the tasks of the Commission more complex or near impossible.

152. Therefore, Archana Reddy’s case (1 supra), in my considered

opinion, is not right in giving directions to formulate the publication of criteria

and the same are contrary to the Mandal’s case and Ashoka Kumar Thakur’s

case (6 supra).

153. The apex Court in Indra Sawhney’s case (5 supra) approved its

earlier judgment in U.S.V.Balram’s case (supra) that despite best efforts that

any Commission may make in collecting material and data in the matters of

this nature, the conclusions cannot always be scientifically accurate and that

the proper approach should be to see whether the relevant data and materials

referred in the report of the Commission justified its conclusion.

154. Sri Jeevan Reddy, J. in Indra Sahwney’s case (5 supra) had

pointed at para 857, which is as under:

“… … … In a social measure like the impugned one, the court must givedue regard to the judgment of the Executive, a co-equal wing of the Stateand approach the measure in the spirit in which it is conceived.”

155. The further observations in para 854 are as under:

“… … … But in an exercise of such magnitude and complexity, such errorsare not uncommon. These errors cannot be made a basis for rejectingeither the relevance of the criteria evolved by the Commission or the entireexercise of identification. It is one thing to say that these errors must berectified by the Government of India by evolving an appropriate mechanismand an altogether different thing to say that on that account, the entireexercise becomes futile. There can never be a perfect report. In humanaffairs, such as this, perfection is only an ideal – not an attainable goal. …… …”

156. It is the further observation in Indra Sahwney’s case (5 supra), at

para 857, that the rules of law are made to enable the law to promote social

justice and should not be used to nullify the social justice and that sacrificing

the too many social goals on the altar of the rule of law, they make the law

barren and empty.

157. While so holding the apex Court was emphasizing that the courts

may not entertain trivial/technical pleas, however attractive they may be, while

dealing with the matters of social justice, that too, at the behest of those who

are opposed to the doctrine of equality and removal of inequality including

socially included, which is a constitutional obligation.

158. For the above reasons and in the light of the judgments of the apex

Court in U.S.V.Barlam’s case (supra) and in Indra Sahwney’s case (5 supra)

at paras 849 and 857, it cannot be held that the argument that the function of

the identification of backward classes by the B.C. Commission shall be

scientific and error-proof, shall not stand.

Are the recommendations of the Commission vitiated by inadequacy of

the sample surveyed, or on the ground that survey was conducted not by

the Commission but by members of its staff, or the survey at irrelevant

places and absence of any survey of sample of two social groups ?

159. In this regard, I have to fall back necessarily upon the reasons

assigned in the above paragraphs.

160. At the cost of repetition, I reiterate that the apex Court did not

choose to entertain the contention in Indra Sahwney’s case (5 supra) that the

survey conducted was inadequate.

161. The learned Advocate General points out that the survey conducted

by the Commission was only to find out, whether there is no contra evidence

and even then the Commission has conducted survey by making enquiries

from more number of persons. At any rate, the sufficiency or otherwise of the

material gathered by the Commission would not fall within the ambit of judicial

scrutiny of this Court.

162. It is well accepted principle that the quality is more relevant than

the quantity. In fact, there is no requirement of enquiry/survey at all in view of

the fast track/rough and ready methods adopted instead of straightaway

identifying the groups, the Commission made an additional effort only to find

out, if there is any contra evidence against such groups to be identified as

Backward Classes.

163. In other words, if this exercise is expected to be undertaken by the

Commission and the same is to be subjected to strict scrutiny as was sought

in Archana Reddy’s case (1 supra), it may amount to a fault finding exercise

instead of being fact finding in the pursuit of achieving the avowed objective of

social justice under the Constitution in the context of Articles 15(4) and 16(4)

of the Constitution.

164. Further, I reiterate that no procedure has been prescribed either

under the Act or Rules of 1993 in order to conduct the survey of this nature. In

such a case, the Commission has to necessarily adopt its own

procedure/criteria, while discharging its duty of identifying the Backward

Classes in the Muslim community.

165. It was brought to the notice of this Court by the learned Senior

Counsel for the Commission that the Commission had surveyed at an average

of 183 persons and 43 household per community recommended. Incidentally,

it was also pointed out that Anantha Raman’s Commission had taken into

account the samples of 9 persons per community recommended.

166. Dealing with the absence of survey of two communities viz., ‘Guddi

Eluguvallu’ and ‘Gosangi Muslims’, the learned Advocate General pointed out

that the procedure adopted by the B.C. Commission for all the groups is fact

track/rough and ready method and in which event, there was no necessity for

conducting enquiry as was done by the Commission, at all.

167. Unless there is a palpable arbitrariness, which is capable of

defeating the very purpose and object of the Commission, any such lapse

cannot be attached with the ability of nullifying the report of the Commission.

168. According to the learned Advocate General, in fact, as held in Indra

Sahwney’s case (5 supra), there are certain groups/communities, which

deserve dispensation under Articles 14, 15 and 16 of the Constitution

straightaway and that one can identify such group by mere mention of their

names.

169. To illustrate – ‘Gosangi Muslims’ are beggars and a mendicant

community providing services for corpses at burial-ground. ‘Katikapala’ is a

B.C. Community among the Hindus rendering similar services.

170. ‘Guddi Eluguvallu’ is another mendicant community by way of

entertaining the public using animals. There are some social groups among

the Muslims, which are equivalent to the groups among the Hindus, who are

per se leading a human life.

171. If one requires adequate details and particulars in such cases also,

social obligation on the part of the Government can never be achieved and on

the other hand, any such attempt or expectation in that direction would render

such social obligation a myth. A beggar is a beggar regardless of the insular

religion.

172. Similarly, some of the insular groups among the Muslims are

identifiable as their counterparts among the Hindus by their traditional

occupation.

173. For example, ‘Guddi Eluguvallu’ and ‘Gosangi Muslims’, but for

their attachment with the religion, they would have been regarded as belonging

to the socially and educationally backward classes.

174. Therefore, religion is the date-line between the Hindus and the

Muslims in the context of Articles 15(4) and 16(4) of the Constitution. I may

also venture to say that these social groups though eke out their livelihood on

the same lines as their counterparts among the Hindus, if not extended the

benefits under Articles 15(4) and 16(4) of the Constitution, the same would be

hit by Article 14 of the Constitution and for a naked eye that appears to be

totally irrational and a severe dent to the secularism.

175. There are certain groups like ‘Khureshis’, ‘Dhobi Muslims’, whose

geographical location is broadly identified as a particular region. But, the

services rendered by such classes are almost all pervasive.

176. For example, Khureshis – whose geographical location is identified

as ‘Rayalaseema’, their traditional occupation being butchering of animals for

meat consumption, are spread everywhere. This caste practice is known both

to the Hindus and the Muslims. In other words, butchering is their hereditary

or traditional occupation, which they live on.

177. Likewise, ‘Dhobis’. It is hard to imagine in a district or a region

where we do not find a Dhobi. If the religious distinction is erased, Dhobis live

anywhere in the State.

178. Another example is regarding ‘Garadi’. The geographical location is

a village in Karnataka and a village in Andhra Pradesh. But, as per the ASI

report, ‘Garadi’ is the name of a class of mendicant in Telugu country and

Mysore. Therefore, it is safe to infer that community belongs to Andhra

Pradesh also, which is a Telugu country.

179. If I have to deal with each and every community, virtually that

amounts to redoing the whole exercise done by the Commission or trying to

identifying, if not making, holes to the recommendations of the Commission.

180. It is necessary also to make a few observations on the position of

minorities since the presently identified backward classes also belong to a

religious minority.

181. The learned Senior Counsel Sri K.G.Kannabiran explained in detail

the disadvantages and the plight of minorities internationally as well as

nationally and pointed out the danger of the majority overlooking facts and

rights pertaining to minorities. Instances of such oversights have already been

noticed in respect of the Anantaraman Commission regarding “Mehtar” and in

respect of that Commission and Muralidhara Rao Commission generally

regarding Muslims. This has been discussed in detail above.

182. In this context, an observation by Sri B.P.Jeevan Reddy, J. in

Bommai’s case (supra) delivered on his behalf and on behalf of Justice

Agarwal is important. In that judgment, paras 302 to 310 deal with the issue of

secularism under the heading “The Constitution of India and the concept of

secularism” in para 319 at pages 235-236.

183. This judgment made the following weighty pronouncement:

“It is true – as Shri Ram Jethmalani was at pains to emphasise – that Indiawas divided on the basis of religion and that areas having majority Muslimpopulation were constituted into a new entity – Pakistan – whichimmediately proceeded to proclaim itself as an Islamic Republic, but isequally a fact that even after partition, India contained a sizable population ofminorities. They comprised not less than 10 to 12% of the population. Inspired by the Indian tradition of tolerance and fraternity, for whose sake,the greatest son of Modern India, Mahatma Gandhi, laid down his life andseeking to redeem the promise of religious neutrality held forth by theCongress Party, the Founding Fathers proceed to create a State, secular inits outlook and legalitarian in its action. They could not have countenancedthe idea of treating the minorities as second class citizens. On the contrary,the dominant thinking appears to be that the majority community, Hindus,must be secular and thereby help the minorities to become secular. For, itis the majority community alone that can provide the sense of security to

others. The significance of the 42nd (Amendment) Act lies in the fact that itformalized the pre-existing situation. … … …”

184. The bulk of the Muslim backward classes have been kept out of the

BC list all these decades, till now.

185. No less regard and, in fact, even more regard needs to be given by

the court to the legislature and an Act passed by it because the Executive is

recognized as co-equal of the judiciary under our Constitution.

CONCLUSIONS:-

186. In conclusion, I reiterate the following points:

(1) The impugned Act is an act of the legislature in furtherance of the

Constitutional obligation cast on the State to bring about real

equality in society by bringing in the ambit of constitutional

provisions under Articles 15 and 16 of the Constitution, the socially

and educationally backward classes of citizens of Muslim society of

Andhra Pradesh;

(2) As per law laid down by the Supreme Court in various authoritative

judgments including in Saurab Chaudri’s case (9 supra) and

Ashoka Kumar Thakur’s case (6 supra), when such actions

are challenged the courts have to scrutinize the challenge on the

basis of the presumption of Constitutional validity of the legislation

and the extent of judicial review of the Act and the circumstances

leading to it will be limited to examining whether there has been

anything unreasonable on the face of the Act or the surrounding

circumstances on which the Act is based;

(3) In the present case, on examination of the evidence adduced

before us, I am of the view that there is nothing in the

circumstances leading to the Act, i.e., the material basis of the Act

as laid out in the APCBC’s report and other materials that the State

had in its knowledge, which could be termed as either perverse on

per se defective or totally unrelated to the identification of backward

classes made in the Act. I have no reason at all to hold that the

methodology and procedure adopted in the exercise leading to the

Act are either distorted or deliberately calculated to give effect to a

pre-conceived result as has been made out by the challengers of

the Act in this case;

(4) I hold that the criteria evident in the APCBC Report are in

accordance with the well-tested principles in social enquiry as

adopted by the National Commission for Backward Classes, the

Mandal Commission and other Backward Classes Commissions in

the country since a long time;

(5) Irrespective of any inadequacies or deficiencies in the APCBC

report and other materials, once a legislation is enacted the

judiciary has to take into account the principle of presumption of

constitutional validity of any legislation under the Indian Constitution

and set it aside only if there is anything in the legislation which

strikes the conscience and strikes the eye as totally unreasonable.

That is not the position in the present case;

(6) The case of the petitioners is only that there could have been better

criteria and procedure, which would make the social enquiry more

perfect and scientific. In view of the pronouncement of the 9-

Member Bench of the Supreme Court in the authoritative Indra

Sawhney’s case judgment in so many words including that “the

result arrived at cannot be questioned on the ground that other valid

criteria were also available for such identification” and “no method

is perfect particularly when sociological findings are in issue” and

also that even if the result so arrived at may be defective marginally

or in marginal number of cases, that does not invalidate the

exercise itself and marginal defects when found may be cured in

individual cases but the entire finding is not rendered invalid on that

account”, I am not in a position to accept the present challenge of

the petitioners, which are based merely on procedural and technical

grounds.

(7) I hold that, in view of the Supreme Court judgment in Saurab

Chaudri’s case (9 supra) and the Indra Sawhney’s case (5 supra),

my brother judges in Archana Reddy’s case (supra) have not been

correct in taking the extent of judicial review to the exacting

standards evolved in the American constitutional context where the

principles of “suspect legislation”, “strict scrutiny”, Compelling State

interest”, “narrow tailoring” have been applied by the American

Supreme Court in view of the fact that the American Constitution

does not contain a mandatory provision for equality and where it is

left to the discretion of individual educational institutions and States

to introduce “affirmative action” programmes in favour of individual

candidates perceived to be in a disadvantaged position. The Indian

Constitution, unlike the American Constitution, clearly casts a

mandate on the State to undertake measures for securing social

justice, economic justice and political justice as well as equality of

status and equality of opportunity, binding the State in all its limbs

and all institutions of the State to achieve this goal by appropriate

social justice measures including Reservation and they have no

need to affirm and no freedom to deny. While adopting these

measures the State need to consider the claim of all sections of

people, irrespective of differences in religion. The views expressed

and conclusions in Archana Reddy’s case (supra) on the above

concepts and principles and the consequent view taken in Archana

Reddy’s case (1 supra) about burden of proof are per incurium

and not applicable to the present case;

(8) When the State in A.P., holds the view that coverage under Articles

15 and 16 of the Constitution in respect of certain social groups

among Muslims have been missed until the impugned Act even

while the same coverage in respect of other religious communities

have been in existence since long time, the court cannot accept any

challenge to the Act on the ground that it is religion-specific. On the

contrary, the impugned Act is an act of delayed rectification of

injustice done to them all along and extending of justice to the now

included social groups who have been identified not on the basis of

their religion but on the parameters of social and educational

backwardness. By including the now identified groups in the BC list

the State has not made any discrimination based on religion and no

rights of any citizens have been violated;

(9) The petitioners’ plea that item 15 in the schedule of the impugned

Act will encourage conversions is irrational and unrealistic and is

rejected;

(10) Importantly, it has to be taken note that while enacting the impugned

Act, the State has not only identified socially and educationally

backward classes but also taken care to specifically identify, spell

out clearly and exclude the socially and educationally advanced

social groups from the list of BCs. With such diligent care taken by

the State, there is no scope for any socially advanced social groups

of Muslims to take advantage of item 15 of the schedule and there

is no scope for inferring mala fide intentions on the part of the State

to give undue advantage to any class of citizens on the basis of

religion only or to deny the rights under Articles 14, 15 and 16 of the

Constitution to any class or individual citizens. If in addition to the

10 social groups identified as ‘not socially backward’ are excluded,

if any citizen has any information to show that there is any other

social group of Muslims which is not socially backward, it is open to

such citizen to move the NCBC with a complaint of over-inclusion

and seeking the removal of such non-backward social groups from

the ambit the benefit of the Act and to add such social groups to the

list of the excluded social groups;

(11) None of the specific inclusion of socially groups recommended by

the APCBC and made in the impugned Act and its schedule is

unjustified. Provision of 4% reservation for the backward social

groups of Muslims now identified is neither unjustified nor

excessive;

(12) The challenges to the Act by the petitioners merely on the basis of

procedural and technical aspects are not substantive and deserve

to be rejected and the Act has to be upheld as fully in conformity

with the Constitutional provisions and not violative of any

fundamental rights of any citizen of India;

(13) The appointment of Sri P.S.Krishnan by the State is within the

constitutional powers of the State and is legal and from his

background, profile, experience and quality as seen from his report,

his choice for this task was appropriate. His appointment is not

parallel to the APCBC and does not, in any way, affect the APCBC’s

role. The APCBC report is not vitiated for failure to publish criteria

in advance. The observations in Archana Reddy’s case (supra)

requiring such publication is contrary to the Indra Sawhney’s case

(supra) judgment and is per incurium. Though I have discussed the

merits of the contentions of the petitioners on this and other issues

on procedural aspects of identification of BCs, having come to the

constitutional validity of the impugned Act on the basis of the

content and output of the Act, I hold that these challenges regarding

procedural aspects are not adequate to invalidate the impugned

Act.

187. In the result, all the writ and PIL petitions are dismissed with the

above observations. No costs.

___________________

JUSTICE D.S.R.VARMA

08th February, 2010.

Msr/Ak

211. After the pronouncement of the judgment, the learned Advocate General has

made a request for suspension of the order for 90

days. The request of the learned Advocate General is rejected.

_______________________Anil R. Dave, CJ

___________________________ _____________________Smt. T. Meena Kumari, J. B. Prakash Rao, J. _________________ ________________________ D.S.R. Varma, J. A. Gopal Reddy, J. __________________ _______________________V. Eshwaraiah, J. Goda Raghuram, J.

February 08, 2010

svs

[1] AIR 1963 SC 649[2] AIR 1968 SC 1379[3] (1972) 1 SCC 660[4] 1992 Supp. (3) SCC 217

[5] 2004 (6) ALD 1 = 2004 (5) ALT 634[6] 2005 (6) ALD 582

[7](2008) 6 SCC 1

[8](2003) 11 SCC 146

[9]AIR 1958 SC 538

[10]AIR 1967 SC 1643[11](1973) 4 SCC 225[12] (2007) 2 SCC 1[13] (2007) 3 SCC 184[14] (1994) 3 SCC 1[15](2008) 3 SCC 1[16]AIR 1968 SC 1379[17](2005) 1 SCC 394[18](2006) 8 SCC 212[19](1990) 3 SCC 223[20]AIR 1960 SC 430

[21] AIR 1951 SC 226[22] 1975 (2) SCR 761 = AIR 1975 SC 563[23] (1971) 1 SCC 38[24] (1973) 1 SCC 420[25] 57 L Ed 2d 750 = 438 US 265 (1978)[26] Judgment dated 04.8.2009 delivered in SLP (C) No.24327 of 2005 (SBSinha & Cyriac Joseph, JJ)[27] (1980) 2 SCC 768

§ Annexure - 3a at pg.174 of Commission’s report.† NCBC guidelines for filling up questionnaire is enclosed as Annexure-3b. “Fast track” procedure discussed at the bottom of pg.181.[28]AIR 1955 SC 549[29]AIR 1967 SC 266[30]AIR 1966 SC 1942[31](1976) 2 SCC 521[32](1982) 1 SCC 39[33](2008) 7 SCC 117

[34] AIR 1960 SC 1208 (para 9)[35] AIR 1969 SC 1 (para 4)[36] 1994 Supp. (1) SCC 324 (para 137)[37] 2005(6)ALD 582 (LB)

[38][103] (1983) 2 AC 570 (CA)

[39][104] (2002) 2 SCC 333 = AIR 2002 SC 350

[40] 2004 ALT (5) 634

[41] 2005 (6) ALD 582 (5 J LB)

[42] 2008 (3) SCC 243

[43] 1981 Supp.SCC 38

[44] 2006 (6) SCC 258

[45] AIR 1987 A.P page 53

[46] (2008) 6 SCC 1

[47] 1996 (3) SCC 709

[48] 1997(2)SCC 453

[49] 2004(1) SCC 712

[50] 1992 Suppl.(3) SCC 217

[51] AIR 1967 SC 295)

[52] AIR 1966 SC 497

[53] 1981 Supple SCC 87

[54] 2001 (5) SCC 175

[55] 1973 (4) SCC 225

[56] 1988 (3) SCC 609

[57] 2005 (6) ALD 582 (LB)

[58] (2008) 3 SCC 243

[59] 1981 Supp. SCC 38

[60] (2006) 6 SCC 258

[61] 1992 Supp. (3) SCC 217

[62] (2008) 6 SCC 1

[63] (2006) 8 SCC 212

[64] AIR 1958 SC 538

[65] (2003) 11 SCC 146

[66] 1968 2 SCR 786

[67] 2004 (6) ALD 1

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