Appeal No 1336 of 1967
Appeal by special leave from the judgment and order dated October 7 1966 of the Andhra Pradesh High Court in Writ Petition No 1268 of 1966
P Ram Reddy and A V V Nair for the appellants
KNarayana Rao and G Narayana Rao for the intervener
The Judgment of the Court was delivered by Shah J
Against the order passed by the High Court of Andhra Pradesh declaring invalid the reservation for backward classes under Rule 4A and 5A respectively of the Telangana and the Andhra Rules and the directions in respect of the President s Scouts and
Guides under Government orders Nos
1135  1136 Health Housing  Municipal Administration Department dated June 16 1966 as modified by GO MS 1880 dated July 29 1966 for the Telangana region and by GOMS 1786 dated August 2 1966 for the Andhra Region the State of Andhra Pradesh has appealed to this Court with special leave
The State of Andhra Pradesh is divided into two areas Telan gana and Andhra areas
In the Telangana area there are two Medical Colleges having in the aggregate 270 seats for entrants to the medical degree course
In Andhra area there are four Medical Colleges having in the aggregate 550 seats for new entrants
In admitting candidates for the medical degree course by Government orders Nos
1135  1136 Health Housing and Municipal Administration Department dated June 16 1966 seats were reserved for Central Government nominees for NCC ACC President s Scouts  Guides for candidates with sports and extracurricular proficiency for children of ex Service army personnel for children of displaced goldsmiths for candidates from Scheduled Castes and Tribes for women candidates for candidates appearing from HSC Multipurpose ISC  PUC Examinations 597 and for candidates who had secured the MSc  BSc de grees
By Government order No 1880 dated July 29 1966 twenty per cent
of the total number of seats were reserved for backward classes in each area and pursuant thereto the Telangana Rules were amended by GO MS No 1784 Health and the Andhra Rules were amended by GO MS No 1783 Health dated August 2 1966
The Validity of the Government orders Nos
1135  1136 was challenged on the ground that they infringed the fundamental freedoms guaranteed under articles 154 164 and 292 of the Constitution
The High Court held that in reserving seats for nominees of the Central Government and from other States for cultural scholars for women for graduates and for students from HSC  PUC Courses no fundamental rights were infringed but the reservations for members of the backward classes described in the list prepared by the Government of Andhra Pradesh were invalid
By article 15 of the Constitution as originally enacted it was provided that 1 The State shall not discriminate against any citizen on grounds only of religion race caste sex place of birth or any of them
2      3Nothing in this article shall prevent the State from making my special provisions for women and children
 Article 292 provided that No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion race caste language or any of them
By article 46 which occurs in Ch
IV relating to Directive Principles of State Policy the State was enjoined to promote the educational and economic interests of the weaker sections of the people but articles  15 and 29 as originally framed prohibited the making ofany discrimination against any citizen on grounds only of religion race caste sex place of birth or any of them
In the State of Madras vs Shrimati Champakam Dorairajan1 an order issued by the Government of the State of Madras fixing the number of seats for particular communities for selection of candidates for admission to the Engineering and Medical Colleges in the State was challenged on the ground that it violated the guarantee against d crimination under article 252 of theConstitution
This Court held that the Government order constituted a violation of the 1  598 fundamental right guaranteed to the citizens of India by article 292 of the Constitution notwithstanding the directive principles of State policy laid down in Part IV of the Constitution
The Part thereafter added cl
4 in article 15 by the Constitution First Amendment Act 1951 providing that Nothing in this article or in clause 2 of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
 On July 31 1962 the State of Mysore in supersession of all previous orders made under article I 54 divided backward classes into two categories  backward classes and more backward classes and reserved 68 of the seats in the Engineering and Medical Colleges and other technical institutions for the educationally and socially backward classes and the Scheduled Castes and Scheduled Tribes and left 32 seats for the merit pool
That order was challenged by a group of writ petitions under article 32 of the Constitution before this Court
This Court in M R Balaji  others vs State of Mysore1 held that the order passed by the State of Mysore was a fraud on the constitutional power conferred on the State by article 154 and was liable to be quashed because the order categorised contrary to the plain intendment of article 154 the backward classes on the sole basis of caste
A similar order GO MS No 1880 Health issued by the State of Andhra Pradesh on June 21 1963 notifying a list of castes for the purpose of selecting candidates from the backward classes in the Medical Colleges in the State of Andhra Pradesh was declared invalid by the High Court of Andhra Pradesh on the ground that the order which classified the backward classes solely on the basis of caste subverted the object of article 154 of the Constitution  see P Sukhadev and others vs The Government of Andhra Pradesh 2
On February 3 1964 the
previous order issued by the State of Andhra Pradesh was cancelled
Thereafter it is claimed by the  State of Andhra Pradesh that it took steps to prepare a fresh list of backward classes consistently with the provisions of the Constitution
The Chief Secretary of the Government of Andhra Pradesh has sworn in his affidavit that the Council of Ministers appointed a Sub Committee to draw up a list of backward classes inter alia for the purpose of admission of students to professional Colleges
The Committee invited the Law Secretary and the Director of Social Welfare to attend the meetings of the Sub Committe and letters were written to the other States calling for information about the criteria adopted by those States for determining backward classes for purposes of Am
154 and 164 of the 1 1963 Supp 1 SCR 439
2 1966 1 Andbra WR 294
599 Constitution that after considering the replies received from the Chief Secretaries of the various States it was resolved that the existing list of backward classes pertaining to Andhra and Telangana areas he scrutinised with a view to selecting from that list those castes or communities which are considered backward on account of the low standard of living education poverty places of habitation inferiority of occupations followed etc  that at another meeting it was resolved that the list of 146 backward communities prepared by the Director be rearranged in the order of priority in consultation with the Law Secretary taking into consideration the criteria given by Law Secretary in his note to the Cabinet Sub Committee and that in doing so such of the criteria as capable of being practically possible for consideration may be taken into account and accordingly the Law Secretary and the Director of Social Welfare considered the representations made by certain communities to the Government from time to time and drew up a list of the order of priority as called for by the Cabinet Sub Committee that thereafter the Cabinet Sub Committee made its recommendations which were considered by the Council of Ministers on July 4 1966 and that the Council of Ministers considered the social educational and economic conditions of the backward classes named in the lists submitted to them and dealt with each individual class and deleted certain items or classes in the lists changed the denomination of certain classes for the more premise effectuation of concessions to those classes only who really need them and consolidated the backward classes into one list ruling out the priorities suggested by the Director of Social Welfare in accordance with the opinion of the Cabinet Sub Committee and thereafter published resolution No GO 1880 pursuant to which the rules were amended reserving 20 of the seats for the backward classes mentioned in the list prepared by the Cabinet of the State
The list prepared on the basis of reservations for socially and educationally backward classes is indisputably a list community wise
On behalf of the petitioners it was contended in the High Court that the Government of Andhra Pradesh had adopted the same list of backward classes which was struck down by the High Court in P Sukhadev s caw with some slight modifications and the new list also having made a reservation in favour of castes and not classes it infringed the guarantee Under article 151
On behalf of the State it was urged that caste is one of the relevant tests in determining backwardness and cannot be ignored in determining the socially and educationally backward classes if a group has been classified as backward on other relevant considerations the classification is not liable to be changed as invalid on the ground that for the purpose of classifyingthe designation of caste is given
The High Court held that the earlier GO was struck down 1 1966 1 Andhra WR 294
600 in P Cukhadev s case  on the ground that it was based on caste alone and since the GO under challenge was again prepared on the same basis it could not be sustained as falling withinthe exception provided in article 154
Counsel for the State contends that the High Court erred in holding that the impugned rules reserving seats for backward classes made caste the determining factor
In the context in which it occurs the expression class means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status rank occupation residence in a locality race religion and the like
In determining whether a particular section forms a class caste cannot be excluded altogether
But in the determination of a class a test solely based upon the caste or community cannot also be accepted
By cl
1 article 15 prohibits the State from discriminating against any citizen on grounds only of religion race caste sex place of birth or any of them
By cl
3 of article 15 the State is notwithstanding the provision contained in cl
1 permitted to make special provision for women and children
By cl
4 a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes is outside the purview of cl
But cl
4 is an exception to cl
Being an exception it cannot be extended so as in effect to destroy the Guarantee of cl
The Parliament has by enacting cl
4 attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement
In order that effect may be given to cl
4 it must a pear that the beneficiaries of the special provision are classes which are backward socially and educationally and they are other than the Sche duled Castes and Scheduled Tribes and that the provision made is for their advancement
Reservation may be adopted to advance the interests of weaker sections of society but in doing so care must be taken to see that deserving and qualified candidates are not excluded from admission to higher educational institutions
The criterion for determining the backwardness Must not be based solely on religion race caste sex or place of birth and the backwardness being social and educational must be similar to the backwardness from which the Scheduled Castes and the Scheduled Tribes suffer
These are the principles which have been enunciated in the decision of this Court in
M R Balaji s case3 and R Chitralekha  Another vs State of Mysoreand
others2
In R Chitralekha s case 2 Subba Rao J speaking for the majority of the Court observed at p 388 1 1963 Supp1 SCR439 2 1964 6 SCR368 601 lm15 The important factor to be noticed in article 154 is that it does not speak of castes but only speaks of classes
If the makers of the Constitution intended to take castes also as units of social and educational backwardness they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes
Though it may be suggested that the wider expression cLasses is used in cl
4 of article 15 as there are communities without castes if the intention was to equate classes with castes nothing prevented the makers of the constitution from using the expression backward classes or castes 
The juxtaposition of the expression backward classes and Scheduled Castes in article 154 also leads to a reasonable inference that the expression classes is not synonymous with castes
It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not his or their caste may have some relevance but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong
 In a recent judgment of this Court P Rajendran  Ors
vs The State of Madras and others  Wanchoo CJ speaking for the Court observed  
if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question it would be violative of article 151
But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of article 154
It is true that in the present cases the list of socially and educationally backward classes has been specified by caste
But that does not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens
 That case makes no departure from the rule enunciated in the earlier cases
The list dated June 21 1963 of castes prepared by the Andhra Pradesh Government to determine backward classes for the purpose of article 154 was declared invalid by the High Court of  Andhra Pradesh in P Sukhadev s case 
A fresh list was published under the amended rules with some modifications but the 1  2 1966 1 Andhra WR 294
602 basic scheme of the list was apparently not altered
It is true that the affidavits filed by the Chief Secretary in the High Court and the Director of Social Welfare in this Court have set out the steps taken for preparing the Est of backward classes
It is also stated in the affidavit of the Director of Social Welfare that he considered the representations made to him consulted the Law Secretary and certain publications relating to the study of backward classes eg Thurston s Caste and Tribes and Sirajul Hasan s Castes and Tribes and made his recommendations which were modified by the Sub Committee appointed by the Council of Ministers and ultimately the Council of Ministers prepared a final list of backward classes
But before the High Court the materials which the Cabinet Sub Committee or the Council of Ministers considered were not placed nor was any evidence led about the criteria adopted by them for the purpose of determining the backward classes
The High Court observed  A perusal of this affidavit Chief Secretary s affidavit as well as that of the Director of Social Welfare
which are filed on behalf of the Government do not say what was the material placed before the Cabinet Sub Committee or the Council of Ministers from which we could conclude that the criteria laid down by their Lordships of the Supreme Court have been applied in preparing the list of backward classes
After referring to the opinion of the Law Secretary and the views of the Director of Social Welfare they observed 
We are not able to ascertain whether any material and if so what material was placed before the Cabinet Sub Committee upon which the list of backward classes was drawn
On the other hand it is stated that the Law Secretary and the Director of Social Welfare sat together and drew up a list the former specifying the legal requirements and the latter as an expert advising on the social and educational backwardness of class or classes
 It was urged before the High Court that expert knowledge of the Director of Social Welfare and of the Law Secretary was brought to bear upon the consideration of the relevant materials in the preparation of the list and they were satisfied that the correct tests were applied in the determination of backward classes and on that account the list should be accepted by the High Court
The High Court in dealing with the argument observed  the impugned backward classes list cannot be and has not been sustained by the Government as 603 coming within the exception provided in article 154 on any material placed before this Court
In fact there is a total absence of any material from which we can say that the Government applied the criteria enunciated by their Lordships of the Supreme Court in the above referred cases in preparing the list of backward classes
We cannot accept the contention of the learned Advocate General that once there is proof that the Government bona fide considered the matter it is sufficient
Acceptance of this argument would make for arbitrariness absolving the party on whom the burden of proof to bring it within the exception rests from proving it
The mere fact that the act is bona fide and that there was total absence of mala fides is not relevant
 Article 15 guarantees by the first clause a fundamental right of far reaching importance to the public generally
Within certain defined limits an exception has been engrafted upon the guarantee of the freedom in cl
1 but being in the nature of an exception the conditions which justify departure must be strictly shown to exist
When a dispute is raised before a Court that a particular law which is inconsistent with the Guarantee against discrimination is valid on the plea that it is permitted under cl
4 of article 15 the assertion by the State that the officers of the State had taken into consideration the criteria which had been adopted by the Courts for determining who the socially and educationally backward classes of the Society are or that the authorities had acted in good faith in determining the socially and educationally backward classes of citizens would not be sufficient to sustain the validity of the claim
The Courts of the country are invested with the power to determine the validity of the law which infringes the fundamental rights of citizens and others and when a question arises whether a law which prima facie infringes a guaranteed fundamental right is within an exception the validity of that law has to be determined by the Courts on materials placed before them
By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon and was within the exception the jurisdiction of the Courts to determine whether by making the law a fundamental right has been infringed is not excluded
The High Court has repeatedly observed in the course of their judgment that no materials at all were placed on the record to enable them to decide whether the criteria laid down by this Court for determining that the list prepared by the Government conformed to the requirements of cl
4 of article 15 were followed
On behalf of the State it was merely asserted that an enquiry was in fact made with the aid of expert officers and the Law Secretary and the question was examined from all points of view by the L7Sup
CI68 14 604 officers of the State by the Cabinet Sub Committee and by the Cabinet
But whether in that examination the correct criteria were applied is not a matter on which any assumption could be made especially when the list prepared is exfacie based on castes or communities and in substantially the list which was struck down by the High Court in P Sukhadev s case1 Honesty of purpose of those who prepared and published the list was not and is not challenged but the validity of a law which apparently infringes the fundamental rights of citizens cannot be upheld merely because the law maker was satisfied that what he did was right or that he believes that he acted in manner consistent with the constitutional guarantees of the citizen
The test of the validity of a law alleged to infringe the fundamental rights of a citizen or any
act done in execution of that law lies not in the belief of the maker of the law or of the person executing the law but in the demonstration by evidence and argument before the Courts that the guaranteed right is not infringed
The appeal therefore fails and is dismissed
 RKPS Appeal dismissed
1 1966 1 Andhra WR 294


Summary:
By an order of the State Government Andhra Pradesh issued on July 29 1966 20 of the total number of seats for admission to medical colleges in the State were reserved for members of the backward classes described in a list prepared by the Government
This order and the list were challenged in writ petitions before the High Court on the ground that another list published by the State Government on June 21 1963 determining backward classes for the purpose of article 154 of the Constitution had been declared invalid by the High Court in an earlier case as being violative of article 151 it was contended that the State Government had adopted substantially the same list of backward classes with slight modifications and as the new list also made the reservation in favour of castes and not classes it infringed the guarantee under article 151
On behalf of the State Government it was urged that caste is one of the relevant tests in determining backwardness and cannot be ignored in determining socially and educationally backward classes and if a group has been classified as backward on other relevent considerations the classification is not liable to be challenged as invalid on the ground that for the purpose of classifying the designation of caste is given
It was stated in an affidavit on behalf of the State that the new list had been prepared by a Cabinet sub committee and approved by the Cabinet after a detailed enquiry of the conditions of the castes in question and on expert advice of the Director of Social Welfare as well as under the guidance of the Law Secretary and that they were both satisfied that the correct tests were applied in the determination of the backward classes
The High Court held that the reservations of seats for the members of the backward classes described in the list prepared by the Government were in  Aid
The State appealed to this Court by special leave
HELDdismissing the appeal The impugned list prepared by the State was ex facie based on castes or communities and wag substantially the same list which bad been struck down by the High Court as invalid in the earlier case
No materials were placed on the record to enable the Court to decide whether the criteria laid down for determining that the list prepared by the Government conformed to the requirements of cf
4 or article 15 were followed
Article 15 guarantees by the first clause a fundamental right of farreaching importance
Clause 4 is an exception engrafted upon the guarantee in cl
1 but being id the nature of an exemption conditions which justify departure must be strictly shown to exist
When a dispute is raised before a Court that a particular
law which is inconsistent with the guarantee against discrimination is valid on the plea that it is permitted 596 under cl
4 of article 15 the mere assertion by the State that the officers of the State had taken into consideration the criteria which had been adopted by the courts for determining who the socially and educationally backward classes of the Society are or that the authorities had acted in good faith in determining the socially and educationally backward classes of citizens would not be sufficient to sustain the validity of the claim
If a question arises whether a law which prima facie infringes a fundamental right is within an exception the validity of that law has to he determined by the courts on materials placed before them
By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon and was within the exception the jurisdiction of the courts to determine whether by makinig the law a fundamental right has been infringed is not excluded
603 C G
Case law referred to