Indian Kanoon - Search engine for Indian Law

7. Defective educational system which does not train students for appropriate occupations and professions. (p.- 107).

The Committee realised that, in substance, the problem of the Backward Classes is really the problem of Rural India (p. 55). It appears that having considered several criteria which may be relevant in determining which classes are backward, the Committee ultimately decided to treat the status of caste as an important factor in that behalf, and it is on that basis that it proceeded to make a list of Backward Communities which were specified in Volume 11 of the Report.

The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of persons. In a sense, the problem of social. backwardness is the problem of Rural India and in that behalf, classes of citizens occupying a socially backward position in rural area fall within the purview of Art. 15(4). The problem of determin- ing who are socially backward classes is undoubtedly very complex. Sociological, social and economic considerations come into play in solving the problem and evolving proper criteria for determining which classes are socially backward is obviously a very difficult task; it will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. That is the function of the State which purports to act under Art. 15(4). All that this Court is called upon to do in dealing with the present petitions is to decide whether the tests applied by the impugned order are valid under Art. 15(4). If it appears that the test applied by the order in that behalf is improper and invalid, then the classification of socially backward classes based on that test will have to be held to be inconsistent with the requirements of Art. 15(4). What then is the test applied by the State in passing the impugned order ? We have already seen that the Nagan Gowda Committee appointed by the State was inclined to treat the caste as almost the sole basis in determining the question about the social backwardness of any community. The Committee has no doubt incidentally referred to the general economic condition of the community as a contributory factor; but the manner in which it has enumerated the backward any more backward classes leaves no room for doubt that the predominant, if not the sole, test that weighed in their minds was the test of caste. When we consider the impugned order itself. the position becomes absolutely clear. The impugned order has adopted the earlier order of July 10, 1961, with some changes as to the quantum of reservation, and so, it is necessary to examine the earlier order in order to see what test was applied by the State in classifying the backward Classes. In its preamble, the order of July 10, 1961, clearly and unambiguously states that the Committee had come to the conclusion that in the present circumstances, the only practicable method of classifying the Backward Classes in the State is on the basis of castes and communities and the State Government accepts this test. In. other words, on the order as it stands there can be no room for doubt that the classification of backward and more backward classes was made by the State Government only on the basis of their castes which basis was regarded as a practicable method. It is true that in support of the inclusion of the Lingayats amongst the Backward Classes the order refers to some other factors, but neither the Report of the Nagan Gowda Committees, nor the orders passed by the State Government on July 10, 1961, and July 31, 1962, afford any indication as to how any test other than that of the caste was applied in deciding the question. The learned Advocate-General has contended that the statement in the preamble of' the order of July 10, 1961 should not be literally construed and he has argued that the words used in the relevant portion are inartistic and he has suggested that the order is not based on the sole basis of castes. We are not impressed by this argument. We have considered both the orders in the light of the Report' and the recommendations made by the Nagan Gowda Committee and we are satisfied that the classification of the socially backward classes of citizens made by the State proceeds on the only consideration of their castes without regard to the other factors which are undoubtedly relevant. If that be so, the social backwardness of the communities to whom the impugned order applies has been determined in a manner which is not permissible under Art. 15(4) and that itself would introduce an infirmity which is fatal to the validity of the said classification. The next question to consider is in regard to the educational backwardness of the classes of citizens. The Nagan Gowda Report and the impugned order proceed to deal with this question on the basis of the average of student population in the last the High School classes of all High Schools in the State in relation to a thousand citizens of that community. On the figures supplied to the Committee which admittedly are approximate and not fully accurate, the Committee came to the conclusion that the State average of student population in the last three High School classes of all High Schools in the State was 69 per thousand. The Committee decided that all Castes whose average was less than the State average of 6.9 per thousand should be regarded as backward communities, and it further held that if the average of any community was less than 50% of the State average, it should be regarded as constituting the more backward classes. It may be conceded that in determin- ing the educational backwardness of a class of citizens, the literacy test supplied by the Census Reports may not be adequate; but it is doubtful if the test of the average of student population in the last three High School classes is appropriate in determining the educational backwardness. Having regard to the fact that the test is intended to determine who are educationally backward classes, it may not be necessary or proper to put the test as high as has been done by the Committee. But even assuming that the test applied is rational and permissible under Art. 15(4), the question still remains as to whether it would be legitimate to treat castes or communities which are just below the State average as educationally backward classes. If the State average is 6.9 per thousand, a community which satisfies the said test or is just below the said test cannot be regarded as backward. It is only communities which are well below the State average that can properly be regarded as educationally backward classes of citizens. Classes of citizens whose average of student population works below 50% of the State average are obviously educa- tionally back-ward classes of citizens. Therefore, in our opinion, the State was not justified in including in the list of Backward Classes, castes or communities whose average of student population per thousand was slightly above, or very near, or just below the State average. It will be recalled that the Nagan Gowda Committee had recommended that the Lingayats should not be treated as Backward Classes. The State has decided otherwise, and in doing so, the State has taken the view that the figures arrived at by the Committee should be corrected to the nearest integer as, in the nature of things, says the order of July 10, 1960, it is not possible to attain absolute mathematical precision in making such assessments. That is how the State average was raised from (6.9 to 7 per thousand. Even after increasing the State average to 7, the position with regard to Lingayat community was that its average of student, population was 7.1 per thousand according to the Committee's calculations and according to the decision of the State 7, and yet the Lingayats as a community have been held to be an educationally backward class of citizens under the State order. This result has been achieved by adding,1 to the State average and deducting ,1 from the Lingayats' average. The Ganigas whose average of student population is 7 per thousand are likewise included in the list of Backward Classes. If the State average is 6.9 or 7, it would, we think, be manifestly erroneous to regard those communities as educationally backward whole student population ratio works at the same level as the State average.

That takes us to the question about the extent of the special provision which it would be competent to the State to make under Art. 15(4). Article 15(4) authorises the State to make any special provision for the advancement of the Backward Classes of citizens or for the Scheduled Castes and Scheduled Tribes. The learned Advocate-General contends. that this Article must be read in the light of Art. 46, and he argues that Art. 15(4) has deliberately and wisely placed no limitation on the State in respect of the extent of special provision that it should make. Art. 46 which contains a directive principle, provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all form,% of exploitation. There can be no doubt that the object of making a special provision for the advancement of the castes or communities, there specified, is to carry out the directive principle enshrined in Art. 46. It is obvious that unless the educational and economic interests of the weaker sections of the people are promoted quickly and. liberally, the ideal of establishing social and economic equality will not be attained, and so, there can be no doubt that Art. 15(4) , authorises the State to take adequate steps to achieve the object which it has in view. No one can dispute the proposition that political freedom and even fundamental rights can have very little meaning or significance for the Backward Classes and the Scheduled Castes Scheduled Tribes unless the backwardness and inequality from which they suffer are immediately redressed. The teamed Advocate-General, however, suggests that the absence of any limitation on the State's power to make an adequate special provision indicates that if the problem of backward classes of citizens and Schedule a Caste and Tribes in any given State is of such a magnitude that it requires the reservation of all seats in higher educational institutions, it would be open to the State to take that course. His argument is that the only test which can be applied is whether or not having regard to the problem which the State is called upon to meet, the provision made is reasonably adequate or not. Thus presented, the argument is, no doubt, prima facie attractive, and so, it must be carefully examined.

In this matter again.. we arc reluctant to say definitely what would be a proper provision to make. Speaking generally and in a ];road way, a special provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing circumstances in each case. In this particular case it is remarkable that when the State issued its order on July 10, 1961, it emphatically expressed its opinion that the reservation of 68% recommended by the Nagan Gowda Committee would not be in the larger interests of the State. What happened between July 10, 1961, and July 31, 1962, does not appear on the record. But the State changed its mind and adopted the recommendation of the Committee ignoring its earlier decision that the said recommendation was contrary to the larger interests of the State. In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Art. 15(4), it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations. Therefore, we are satisfied that the reservation of 68% directed by the impugned order is plainly inconsistent with Art. 15 (4). The petitioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Art. 15(4). This argument is well-founded, and must be upheld. When it is said about an executive action that it is a fraud on the Constitution, it does not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra, vires the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred oil it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not 'permitted by Art. 15(4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Art. 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Art. 15(4). The learned Advocatc-General has made an earnest and strong plea before us that we should not strike.down the order, but should strike down only such portions of the order which appear to us to be unconstitutional on the doctrine of severability. He has urged that since 1938, the State has had to make five orders to deal with the problem of advancing.the lot of the Backward Classes and the State is anxious that the implementation of the impugned order should not be completely prohibited or stopped. We do not see how it would be possible to sever the invalid provisions of the impugned order. If the categorisation of the Backward Classes is invalid, this Court cannot and would not attempt the task of enumerating the said categories; and if the percentage of reservation is improper and outside Art. 15(4), this Court would not attempt to lay down definitely and in an inflexible manner as to what would be the proper percentage to reserve. In this connection, it may be relevant to refer to one fact on which the petitioners have strongly relied. It is urged for them that the method adopted by the Government of Maharashtra in exercising its powers under Art. 15(4) is a proper method to adopt. It appears that the Maharashtra Government has decided to afford financial assistance, and make monetary grants to students seeking- higher education where it is shown that the annual income of their families is below a prescribed minimum. The said scheme is not before us and We are not called upon to express any opinion on it. However, we may observe that if any State adopts such a measure, it may afford relief to and assist the advancement- of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and more educational institutions, polytechnics, vocational institutions and even rural Universities and thereby create more opportunities for higher education. This dual attack on the problem posted by the weakness of backward communities can claim to proceed on a rational, broad and scientific approach which is consistent with, and true to, the noble ideal of a secular welfare democratic State set up, by the Constitution of this country. Such an approach can be supplemented, if necessary by providing special provision by way of reservation to aid, the Backward classes and Scheduled castes and Tribes. It may well be that there may be other ways and means of achieving the same result. In our country where social and economic conditions differ from State to State, it would be idle to expect absolute uniformity of approach; but in taking executive action to implement the policy of Art. 15(4). It necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attainment of social and economic justice that Art. 15(4) authorises the making of special provisions for the advancement of the communities there contemplated even if such provisions may be inconsistent with the fundamental; rights, guaranteed tinder Art. 15 or 29(2). The context, therefore, requires that the executive action taken by the State must be based on an objective approach, free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be done.