THE NATIONAL COMMISSION FOR SCHEDULE CASTE AND SCHEDULE TRIBES

educational backwardness and economic backwardness. They are mutually contributory to each other and are inter- twined with low occupations in the Indian society. A caste can be and quite often is a social class in India. Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16(4). The weaker sections referred to in Article 46 do include SEBCs referred to in Article 340 and covered by Article 16(4).

(3) Even under Article 16(1) reservations cannot be made on the basis of economic criteria alone.

(4) The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situation inherent in the great diversity of this country and the people. It might happen that in far- flung and remote areas the population inhabiting those areas might, on account of their being out of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.

To the extent, Devadasan is inconsistent herewith, it is over-ruled.

(5) There is no constitutional bar to classification of backward classes into more backward and backward classes for the purposes of Article 16(4). The distinction should be on the basis of degrees of social backwardness. In case of such classification, however, it would be advisable -- nay, necessary -- to ensure equitable distribution amongst the various backward classes to avoid lumping so that one or two such classes do not eat away the entire quota leaving the other backward classes high and dry.

For excluding 'creamy layer', an economic criterion can be adopted as an indicium or measure of social advancement.

(6) A 'provision' under Article 16(4) can be made by an excutive order. It is not necessary that it should be made by Parliament/Legislature.

(7) 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.

(8) Reservation of appointments or posts under Article 16(4) is confined to initial appointment only and cannot extend to providing reservation in the matter of promotion. We direct that our decision on this question shall operate only prospectively and shall not affect promotion already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion -- be it Central Services or State Services, or for that matter services under any corporation, authority or body falling under the definition of 'State' in Article 12 -- such reservations may continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so."

Effects of the ruling

1.11 The supreme Court ruling will have effect on a number of aspects of the situation of the Scheduled Castes and Scheduled Tribes in the matter of their representation at various levels in the Government services. In the first place, another segment of the disadvantaged class of society would enter the sphere of reservations and although such reservations have been in existence for a long time in some States of the South, it would be a new concept in the Central Government services and some States. It is felt in some quarters that percentage of reservation in Government jobs could form a plank for populist moves by appearing to help more and more sections of society on the basis of caste specially those who are vocal or who are perceived to be disadvantaged in the eyes of the Government of the time. Higher percentages of reservation may create a hue and cry from those advanced sections of population. On a different dimension this may adversely affect the general sympathy for SC & ST, as many people are unable to see the distinction and associate reservation with SC & ST only and feel that all the high reservation is for SC & ST. With the extension of the reservation benefits in recruitment there would soon be a demand for extending all the benefits enjoyed by SC & ST to OBC. While the Commission has no objection for the measures taken for the advancement of OBC, the Government must ensure that there is no dilution in the application and implementation of the safeguards provided for SC & ST under the Constitution or under any other provision made by the Government.

1. 12 The dimension of the safeguards meant for SC & ST which is likely to be adversely affected by the Supreme Court judgment is the area of promotions. According to the ruling reservation in promotion shall cease to be operative after five years. Within the period of five years from the date of pronouncement of the judgment (16-11-92) it would be open to the appropriate authorities to revise, modify or reissue the relevant rules to ensure the achievement of the objective of Article 16 (4).

1.13 The Commission is happy to report that suitable measures have been taken to ensure that there is adequate representation of SC & ST at all levels ensuring reservations in promotions and by adding clause 16 (4A) to the Constituion. "Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State, are not adequately represented in the services under the State", thus nullyfying the effect of the judgment and keeping continuity of reservations in promotions.

1.14 The country is passing through a phase of transformation. There are visible signs of the rich sections of the society becoming richer with every passing year and there are indications of general upward mobility. At the same time the deprived sections of the society, especially in the backward and remote areas, are finding their lives more miserable than before due to high prices and growing contrast in the standards of living. The Government sector seems to be shrinking or at least not growing as in the past and, therefore, its capacity to provide jobs is becoming limited. In this scenario it becomes imperative to think of new and effective planning strategy for the development of the weaker sections of the population. Perhaps a time has come, as an old saying goes to teach them how to fish rather than giving them a fish. only that path would create a far reaching and lasting generation of wealth and capacity.