Supreme Court of India
RAM SINGH & ORS.versusUNION OF INDIA
- Citation
- 2015 INSC 231
- Decided
- 17 March 2015
- Disposal
- Case Allowed
- Bench
- RANJAN GOGOI
Holding
The Union Government’s notification including the Jats in the Central OBC List is invalid because the NCBC’s advice, which was not overruled on any compelling ground, must be adhered to, and the decision failed to satisfy the social backwardness test under Article 16(4).
Summary
The Union Government issued a Gazette Notification on 4 March 2014 including the Jat community in the Central List of Other Backward Classes (OBC) for nine states, despite the National Commission for Backward Classes (NCBC) advising against such inclusion. The petitioners challenged the notification, arguing that the NCBC’s advice is ordinarily binding under the NCBC Act and the Indira Sawhney judgment, and that the decision to include Jats was based on outdated data and political considerations rather than the required test of social backwardness. The Court examined the statutory framework, the binding nature of NCBC advice, the criteria for determining backwardness under Article 16(4), and the relevance of contemporaneous data. It held that the NCBC’s detailed, reasoned advice could be overruled only for compelling reasons, which were absent in this case. Consequently, the Court quashed the notification and allowed the writ petitions, reaffirming that inclusion in OBC lists must be based on social backwardness supported by current evidence.
Issues considered
- The extent to which the advice of the National Commission for Backward Classes is binding on the Union Government under the NCBC Act and the Indira Sawhney precedent.
- Whether the Union Government can bypass the NCBC’s advice to include the Jat community in the Central OBC List without compelling reasons.
- The proper test for determining backwardness under Article 16(4) – whether it is social backwardness or a combination of social, educational and economic factors.
- The adequacy and contemporaneity of data used to assess the Jats' backwardness for inclusion in the Central List.
Legislation cited
Subjects
Article 16(4)Other Backward ClassesNational Commission for Backward ClassesSocial backwardnessReservationConstitutional lawStatutory interpretationJudicial reviewGovernment notificationAffirmative action
Judgment
[2015] 5 S.C.R. 670
A RAM SINGH & ORS.
v.
UNION OF INDIA
(Writ Petition (civil) No. 274 of 2014)
B
MARCH 17, 2015
[RANJAN GOGOi AND R. F. NARIMAN, JJ.]
c Constitution of India, 1950 - Art. 16(4) - Inclusion of 'Jal
Community' in the Central List of Other Backward Classes
for 9 States - By Notification dated 04.03.2014 by Central
Government - Bypassing the contrary view taken by Na-
tional Commission for Backward Classes - Propriety of -
D Held: In view of the observations in Indra Sawhnev case
and s. 9 of National Commission for Backward Classes Act,
the advice of the Commission is ordinarily binding on the
Government and the same can be overruled only on com-
pelling reasons - The decision of the Commission not to
E include the 'Jat Community' in the Central List was based
on detailed consideration of various reports of the State
Backward Classes Commissions and the findings of Expert
Committee - The Government cannot be permitted to dis-
card the statutory norms - The terms 'backward classes' and
F 'socially and educationally backward classes' are not syn-
onymous - Backward classes contemplated by Art. 16(4) is
'social backwardness' - Hence the crucial test for determin-
ing entitlement of 'Jats' in Central List is social backward-
ness - However, determining factors for inclusion of Jats in
G the Central List by the Government was educational back-
wardness - Government also decided the issue on the ba-
sis of inputs which were not contemporaneous except the
State of Haryana - Such a course adopted by the Govern-
H
670
RAM SINGH v. UNION OF INDIA 671
ment is retrograde governance - Therefore, the Notification A
passed on the basis of view of the Government which was
contrary to the advice of the Commission which was ad-
equately supported by good and acceptable reasons, is not
justified - National Commission for Backward Classes Act,
1993 - ss. 9 and 11 - National Commission for Backward B
Classes (Power to Review Advice) Rules, 2011 - r. 4- No-
tification No. 63 dated 4.3.2014.
Allowing the writ petitions, the Court
c
HELD: 1. The observations in *Indra Sawhney case
and the expressed provisions contained in Section 9 of
the National Commission for Backward Classes Act
clearly indicate that the advice tendered by the National
Commission for Backward Classes is ordinarily binding o
on the Government and the same can be overruled/
ignored only for strong and compelling reasons which
reasons would be expected to be available in writing.
As the constitution of the Commission is traceable to
the opinion rendered in *Indra Sawhney case, there can E
be no doubt that even when the exercise undertaken by
the Central Government is one under Section 11 of the
Act, the views expressed by the NCBC in the process
of the consultation mandated by Section 11 of the Act,
would have a binding effect in the normal course. [Para F
26] [692-G-H; 693-A-B]
*Indra Sawhney & Ors. Vs. Union of India & Ors. 1992
(2) Suppl. SCR 454: 1992 Supp (3) SCC 217; Barium
Chemicals Ltd. Vs. Company Law Board 1966 Supp SCR G
311; Rohtas Industries Ltd. Vs. S.D. Agarwal & Ors. 1969
(3) SCR 108: (1969) 1 SCC 325; Shri Sitaram Sugar Co.
Ltd. & Anr. Vs. Union of India & Ors. 1990 (1) SCR 909:
(1990) 3 SCC 223; Gazi Saduddin Vs. State of Maharashtra
H
672 SUPREME COURT REPORTS [2015) 5 S.C.R.
A & Anr. 2003 (2) Suppl. SCR 966: (2003) 7 sec 330 -
referred to.
2. The report dated 26.02.2014 of the Commission
was made on a detailed consideration of the various
B reports of the State Backward Classes Commissions;
other available literature on the subject and also upon
consideration of the findings of the Expert Committee
constituted by the ICSSR to examine the matter. The
decision not to recommend the Jats for inclusion in the
C Central List of OBCs of the States in question cannot
be said to be based on no materials or unsupported by
reasons or characterized as decisions arrived at on
consideration of matters that are, in any way,
extraneous and irrelevant. [Para 46) [713-E-F]
D
3. Having requested the ICSSR to go into the matter
and upon receipt of the report of the Expert Committee
constituted in this regard, the Commission was under
a duty and obligation to consider the same and arrive
E at its own independent decision in the matter, a duty
cast upon it by the Act in question. Consideration of the
report of the Expert Body and disagreement with the
views expressed by the said body cannot, therefore,
amount to sitting in judgment over the views of the
F experts. In fact, the Expert Body of the ICSSR did not
take any particular stand in the matter and did not come
up with any positivP recommendation either in favour
or against the inclusion of the Jats in the Central List
of OBCs. The report of the said Body merely recited the
G facts as found upon the survey undertaken, leaving the
eventual conclusion to be drawn by the NCBC. [Para 46)
[713-G-H; 714-A-C]
4. There may be possibility that the Commission
H upon consideration of the various materials
RAM SINGH v. UNION OF INDIA 673
documented before it had underplayed and/or A
overstressed parts of the said material. Such an
approach, by itself, would not make either the decision
making process or the decision taken legally infirm or
unsustainable. Something more would be required in
order to bypass the advice tendered by the Commission B
which judicially (by Indra Sawhney case) and. statutorily
(by NCBC Act) would be binding on the Union
Government in the ordinary course, The mere possibility
of a different opinion or view would not detract from the
binding nature of the advice tendered by the C
Commission. [Para 46] [714-C-D]
5. Undoubtedly, Article 16(4) of the Constitution
confers power on the Union to bypass the Commission
to include groups of citizens in the Central List of D
OBCs, but what cannot be overlooked is the enactment
of the specific statutory provisions constituting a
Commission, whose recommendations in the matter are
required to be adequately considered by the Union
Government before taking its final decision. Surely, the E
Union cannot be permitted to discard its self-professed
norms which in the present case are statutory in
character. [Para 47] [714-G-H; 715-A]
6. The backwardness contemplated by Article 16(4) F
is 'social backwardness'. 'Educational and economic
backwardness' may contribute to social backwardness.
But 'social backwardness' is a distinct concept having
its own connotations. The extracts of the Minutes of the
Meeting of the Cabinet held on 2"d March, 2014 which G
had preceded the impugned notification dated 4th
March, 2014 tends to overlook the fact that crucial test
for determination of the entitlement of the Jats to be
included in the Central Lists is 'social backwardness'. H
674 SUPREME COURT REPORTS [2015] 5 S.C.R.
A [Paras 49 and 50] [715-H; 716-A-B, G]
7. The two expressions used in Articles 15(4) and
16(4) cannot be read synonymously. The terms
"backward class" and "socially and educationally
B backward classes" are not equivalent and that in Article
16(4) the backwardness contemplated is mainly social.
A social class therefore has to be understood as an
identifiable section of society which may be internally
homogenous (based on caste or occupation) or
C heterogeneous (based on disability or gender e.g.
transgender). [Para 53] [718-F-H]
8. While there can be no doubt that in the matter of
inclusion in the Central Lists of other backward classes,
o the exercise undertaken by the State Governments in
respect of the State Lists may be relevant, what cannot
be ignored in the present case is the very significant
fact that in respect of all the States (except Haryana) the
inclusion of Jats in the OBC Lists was made over a
E decade back. A decision as grave and important as
involved in the present case which impacts the rights
of many under Articles 14 and 16 of the Constitution
must be taken on ~he basis of contemporaneous inputs
and not outdated and antiquated data. In fact, under
F Section 11 of the Act revision of the Central Lists is
contemplated every ten years. The said provision further
illuminates on the necessity and the relevance of
contemporaneous data to the decision making process.
[Para 48] (715-0-G]
G
9. Proceeding on that basis what is clear is that
save and except the State Commission Report in the
case of Haryana which was submitted in the year 2012,
all the other reports as well as the literature on the
H
RAM SINGH v. UNION OF INDIA 675
subject would be at least a decade old. The necessary A
data on which the exercise has to be made, has to be
contemporaneous. Outdated statistics cannot provide
accurate parameters for measuring backwardness for
the purpose of inclusion in the list of Other Backward
Classes. Any other view would amount to retrograde B
governance. Yet, the facts of the case indicate a
governmental affirmation of such negative governance
inasmuch as decade old decisions not to treat the Jats
as backward, arrived at on due consideration of the
existing ground realities, have been reopened, inspite C
of perceptible all round development of the nation. [Para
51] [717-E-H; 718-A]
M.R. Balaji Vs. State of Mysore 1963 Suppl. (1) SCR
439; Janaki Prasad Vs. State of Jammu & Kashmir 1973 o
(3) SCR 236: (1973) 1 SCC 420 - referred to.
10. Article 16(4) as also Article 15(4) lays the
foundation for affirmative action by the State to reach
out the most deserving. Social groups who would be E
most deserving must necessarily be a matter of
continuous evolution. New practices, methods and
yardsticks have to be continuously evolved moving
away from caste centric definition of backwardness.
This alone can enable recognition of newly emerging F
groups in society which would require palliative action.
[Para 53] [719-B-E]
National Legal Services Authority vs. Union of India
(2014) 5 sec 438 - relied on.
G
11. The perception of a self-proclaimed socially
backward class of citizens or even the perception of the
"advanced classes" as to the social status of the "less
fortunates" cannot continue to be a constitutionally
permissible yardstick for determination of H
676 SUPREME COURT REPORTS [2015) 5 S.C.R.
A backwardness, both in the context of Articles 15(4) and
16(4) of the Constitution. Neither can any longer
backwardness be a matter of determination on the
basis of mathematical formulae evolved by taking into
account social, economic and educational indicators.
B Determination of backwardness must also cease to be
relative; possible wrong inclusions cannot be the basis
for further inclusions but the gates would be opened
only to permit entry of the most distressed. Any other
inclusion would be a serious abdication of the
C constitutional duty of the State. Judged by the aforesaid
standards, it is held that inclusion of the politically
organized classes (such as Jats) in the list of backward
classes mainly, if not solely, on the basis that on same
parameters other groups who have fared better have
0
been so included cannot be affirmed. [Para 54] [720-A-
E]
12. The view taken by the Union Government that Jats
in the 9 (nine) States in question is a backward
E community so as to be entitled to inclusion in the
Central Lists of Other Backward Classes for the States
concerned, is not correct. The view taken by the
Commission to the contrary is adequately supported by
good and acceptable reasons which furnished a sound
F and reasonable basis for further consequential action
on the part of the Union Government. Therefore, the
Notification dated 4.3.2014 is not justified. Accordingly
the aforesaid Notification bearing No. 63 dated 4.3.2014
G including the Jats in the Central List of Other Backward
Classes for the States of Bihar, Gujarat, Haryana,
Himachal Pradesh, Madhya Pradesh, NCT of Delhi,
Bharatpur and Dholpur Districts of Rajasthan, Uttar
Pradesh and Uttarakhand is set aside and quashed.
H [Para 55] [720-F-H; 721-A]
RAM SINGH v. UNION OF INDIA 677
Case Law Reference A
1992 (2) Suppl. SCR 454 referred to. Para 15
•
1966 Supp SCR 311 referred to. Para 21
1969 (3) SCR 108 referred to. Para 21 B
1990 (1) SCR 909 referred to. Para 21
2003 (2) Suppl. SCR 966 referred to. Para 21
1963 Suppl. (1) SCR 439 referred to. Para 53 c
1973 (3) SCR 236 referred to. Para 53
(2014) 5 sec 438 relied on. Para 54
D
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
274 of 2014.
[Under Article 32 of the Constitution of India]
WITH E
W. P. (C) Nos. 261, 278, 297, 298, 305, 357 and 955 of
2014
Mukul Rohatgi, AG, Tushar Mehta ASG, Guru Krishan
Kumar, Vibha Datta Makhija, Mahabir Singh, Jayant Bhushan, F
Manjit Singh, AAG, Rakesh Kumar, Gaurav Yadava, Raj
Kumar Yadav, Naik H. K., Prabhat Kaushik, Venkat Prasnna,
Manjunath Melad, B. Subramanian Prasad, Ombir Singh, Anuj
Saini, Yadav Narender Singh, Abhishek Yadav, Anurag Singh, G
Sudhir Nargar, L. R. Khatana, Alok Shukla, A. K. Shukla, Mohit
Singh, Ram Parasher, Nihal Ahmed, Ram Naresh Yadav,
Farrukh Rasheed, Pawan Anchal, Lal Bahadur Khowal,
Ganesh K. Sharma, Disha Vaish, Sudhansu Palo, Lal Bahur .
Paliwal, R. K. Yadav, D. L. Chidananda, Madhvi Divan,. H
678 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Meenakshi Grover, Nivesh Rastogi, D.S. Mahra, Dr. Vijendra
Mahndiyan, Pallavi Awasthi, Deepak Goel, Mamta Rani,
Nagendra Singh, Gyanandra Singh, Yogendra Pal Singh,
Surjeet Singh, Yogesh Kumar, Sajiv K. Baliyan, Aankhi Ghosh,
Somvir Singh Deswal, Satbir Singh Pillania, Nishchal Kumar
B Neeraj, Pranab Kumar Mullick, Soma Mullick, Varun Thakur,
Sharddha Saran, Varinder Kr. Sharma, Dr. Sushi! Balwada,
Pahlad Singh Sharma, Vishwa Pal Singh, Lalita Kaushik,
Ameet Singh, Sandeep Singh, Praveen Swarup, Devesh
Kumar, Manjeet Kirpal, Tarjit Singh, Vivekta Singh (For Kamal
C Mohan Gupta), Naresh Kaushik, Navdeep for the appearing
parties.
The Judgment of the Court was delivered by
D RANJAN GOGOi, J. 1. The challenge in the present
group of writ petitions is to a Notification published in the
Gazette of India dated 04.03.2014 by which the Jat
Community has been included in the Central List of Backward
Classes for the States of Bihar, Gujarat, Haryana, Himachal
E Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and
Dholpur districts of Rajasthan, Uttar Pradesh and
Uttarakhand. The said Notification was issued pursuant to the
decision taken by the Union Cabinet on 02.03.2014 to reject
the advice tendered by the National Commission for
F Backward Classes (NCBC) to the contrary on the ground that
the said advice "did not adequately take into account the
ground realities".
RESUME OF THE CORE FACTS :
G
2. Pursuant to several requests received from individuals,
organisations and associations for inclusion of Jats in the
Central List of Backward Classes for the States of Haryana,
Rajasthan, Madhya Pradesh and Uttar Pradesh, the National
H Commission for Backward Classes (NCBC) studied their
RAM SINGH v. UNION OF INDIA 679
[RANJAN GOGOi, J.]
claims and submitted a report on 28.11.1997. It A
recommended inclusion in the Central List only of the Jats of
Rajasthan, except the Bharatpur and Dhaulpur districts.
3. The NCBC also examined the claim for inclusion of
Jats in the Central List for the State of Delhi, and tendered B
its advice rejecting their claim on 25.11.2010.
4. The significant developments that took place after
submission of the aforesaid two reports may be relevant to
be taken note of at this stage. c
On 03.05.2011 the National Commission for Backward
Classes (Power to Review Advice) Rules, 2011 was notified
by the Ministry of Social Justice and Empowerment. By virtue
of the aforesaid Rules, the NCBC"'Was. empowered to review
its advice tendered to the Central Government under Section D
9(1) of the Act. Rule 4 of the Rules provides that the "provision
of Section 114 and Order 47 of the Code of Civil Procedure,
1908 shall mutatis mutandis apply to a review undertaken by
the Commission." E
5. In a meeting of the NCBC held on 20.06.2011, a large
number of representations received from the Jat Community
for review of the earlier advice of the NCBC was taken up
for consideration. It was decided that consideration of all such F
representations be deferred till finalisation of the Socio-
economic Caste Census (SCC) 2011 which was being
conducted by the Registrar General of India all over the
country for enumerating castewise population of the country.
However, in a meeting held on 19.07.2011 the NCBC decided G
to approach the Indian Council of Social Science Research
(ICSSR) to conduct a full-fledged survey in the States of Uttar
Pradesh, Haryana, Madhya Pradesh, Rajasthan, Himachal
Pradesh and Gujarat to ascertain the socio-economic status
of the Jat Community. The said decision was prompted by H
680 SUPREME COURT REPORTS [2015] 5 S.C.R.
A the necessity to have adequate quantifiable data to enable
. the NCBC to consider the request of the Jat Community for
inclusion in the Central List of Other Backward Classes in the
concerned States.
B 6. What happened to the survey entrusted to the ICSSR
would not be very relevant except that in October 2012 the
NCBC decided to reduce the comprehensive survey to a 2%
sample survey which work, once again, was entrusted to the
ICSSR.
c
7. It appears that in the midst of the aforesaid exercise
the office of the Prime Minister addressed a communication
dated 04.06.2013 to the Ministry of Social Justice and
Empowerment to the effect that a decision has been taken
o to constitute a Group of Ministers chaired by the Finance
Minister and comprising, inter alia, of the Home Minister for
the following purpose:-
(i) To interact with the representatives of the Jat
E · Community with regard to their demand for inclusion and
to keep them apprised of the progress in the matter.
(ii) To monitor the expeditious completion of the survey
undertaken by the NCBC through the ICSSR and to
facilitate an early decision in the matter by the NCBC.
F
8. The Group of Ministers in its meetings held on
28.10.2013 and 30.10.2013, upon consideration of the matter,
perceived that two options were available to it. The first was
to request the NCBC to reconsider its earlier decision of
G conducting the sample survey and to tender its advice on the
basis of materials already available. The second was that the
survey work which had already begun in Gujarat would be
restricted to confirmed list of Jat variants and on the basis of
H the results of the survey done by the ICSSR the NCBC will
RAM SINGH v. UNION OF INDIA 681
[RANJAN GOGOi, J.]
tender its advice." Thereafter, in a meeting of the Cabinet held A
on 19.12.2013, decision was taken to request NCBC to go
ahead with first option i.e. to tender its advice based on
existing material. The cabinet further took the decision that
the cases of States of Bihar, Uttarakhand and NCT of Delhi
be also included in the reference made to the NCBC. B
9. On the basis of the aforesaid decision of the cabinet
communicated to the NCBC, the Commission took the view
that as it did not have sufficient expertise in the matter, the
ICSSR be requested to set up an Expert Committee to C
conduct an extensive literature survey on the subject in order
to collect sufficient materials for the impending exercise.
Thereafter, the NCBC forwarded all reports/documents
received by it in this regard including representations for and
against the inclusion of the Jat Community to the ICSSR. The D
expert body constituted by the ICSSR submitted its report
(hereinafter referred to as the report of the ICSSR) In the
matter which primarily was based on the reports of the
various State Commissions submitted to the respective State
Governments in connection with the inclusion of the Jat E
Community in the OBC list of the concerned States. The
ICSSR, apparently, did not undertake any study of the other
materials by way of books/literature/representations. The
report of the ICSSR, noticeably, did not make any F
recommendations but only set out the existing facts. The said
. report of the ICSSR was, thereafter, discussed by the NCBC
, ..in several of its meetings. Simultaneously, the NCBC
addressed letters to the State Governments for fixing public
hearings in the respective State capitals. As there was no G
response from the States in this regard, the NCBC published
notices for conducting public hearings fixing different dates
for hearing the claims and counter-claims (objections). The
public hearings were to be held in Siri Fort Auditorium, New
H
682 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Delhi on two sets of dates in February, 2014.
10. On conclusion of the public hearings, which appear
to have received what may at best be termed as a mixed
response, the NCBC submitted its advice/opinion/report
B dated 26.02.2014 to the Central Government stating that the
Jat Community had not fulfilled the criteria for inclusion in the
Central List of OBCs. It observed that merely belonging to an
agricultural community cannot confer backward status on the
Jats. It suggested the need for a non-caste based
C identification of backward classes. The NCBC found that the
Jats were not socially backward. They were also. not
educationally backward. It similarly rejected the claim of
inadequate representation in public employment, finding them
adequately represented in armed forces, government
D services and educational institutions.
11. Thereafter, the Union Cabinet in a meeting held on
02.03.2014 decided that the advice tendered by the NCBC
did not adequately take into account the "ground realities." The
E Cabinet, therefore, resolved not to accept the said advice and
instead to include the Jat Community in the Central List of
Backward Classes for the States of Bihar, Gujarat, Haryana,
Himachal Pradesh and NCT of Delhi, Bharatpur and Dholpur
districts of Rajasthan, Uttar Pradesh and Uttarakhand.
F Thereafter, the impugned notification came to be issued on
04.03.2014.
12. At this stage it may be relevant to notice the dates
on which the Jat Community was included in the List of OBCs
G in the States in question which are set out herein:
"(1) 03.11.1999 State of Rajasthan
(2) 10.03.2000 State of Uttar Pradesh
H
RAM SINGH v. UNION OF INDIA 683
[RANJAN GOGOi, J.]
(3) 31.05.2000 NCT of Delhi A
(4) 06.11.2000 State of Bihar
(5) 24.01.2002 State of Madhya Pradesh
(6) 16.11.2002 State of Himachal Pradesh B
(7) 22.03.2010 State of Uttarakhand
(8) 24.01.2013 State of Haryana-As
Special OBC c
(9) Gujarat Not included"
Relevant Constitutional and Statutort Provisions
13. The relevant Constitutional and Statutory provisions D
in the light of which the issues arising will have to be
determined may be taken note of at the outset:
Article 15 of the Constitution prohibits discrimination on
ground of religion, race, caste, sex or place of birth. Clause E
(4) of Article 15 provides 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". Article 16 F
which provides for equality of opportunity in matters of public
employment provides in Clause (4) thereof that "nothing in this
article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State, G
is not adequately represented in the services under the State".
14. Reference to the provisions of Article 38 and 46 of
in Part IV of the Constitution may also be made. Article 38 of
H
684 SUPREME COURT REPORTS [2015] 5 S.C.R.
A the Constitution enjoins a duty on the State to endeavour to
promote the welfare of the people by securing and protecting
as effectively as it may a social order by, inter alia, eliminating
inequalities in status, facilities and opportunities not only
amongst individuals but also amongst groups of people either
B residing in different areas or engaged in different vocations.
Article 46 casts upon the State a duty to promote the
educational and economic interests of the weaker sections
of the population particularly of the Scheduled Castes and
Scheduled Tribes and to protect such citizens from .social
C injustice and exploitation. Article 340 of the Constitution
envisages the creation of a Commission, inter alia, to
investigate the conditions of the socially and educationally
backward classes and the difficulties under which such
classes labour; and to make recommendations as to the
0
steps that should be taken to remove such difficulties and
improve their conditions etc.
15. The National Commission of Backward Classes Act,
1993 was enacted following the decision of this Court in Indra
E Sawhney & Ors. Vs. Union of India & Ors. 1 which
visualised the necessity of establishment of a permanenU
specialised body to which complaints of non-inclusion or
wrong inclusion of groups, classes and sections in the list of
F Other Backward Classes can be made from time to time. In
this regard, the following part of the opinion of Justice Jeevan
Reddy in Indra Sawhney case (supra) may be noticed :-
"We are of the considered view that there ought to be a
permanent body, in the nature of a Commission or
G Tribunal, to which complaints of wrong inclusion or non-
inclusion of groups, classes and sections in the lists of
Other Backward Classes can be made. Such body must
H 1
1992 Supp (3) sec 211
RAM SINGH v. UNION OF INDIA . 685
[RANJAN GOGOi, J.]
be empowered to examine complaints of the said A
nature and pass appropriate orders. Its advice/opinion
should ordinarily be binding upon the Government.
Where. however, the Government does not agree with
its recommendation. it must record its reasons therefor.
Even if any new class/group is proposed to be included B
among the other backward classes, such matter must
also be referred to the said body in the first instance and
action taken on the basis of its recommendation. The
body must be composed of experts in the field, both
official and non-official, and must be vested with the C
necessary powers to make a proper and effective
inquiry. It is equally desirable that each State constitutes
such a body, which step would go a long way in
redressing genuine grievances. Such a body can be
0
created under Clause (4) of Article 1§ itself - or under
Article 16(4) read with Article 340 - as a concomitant
of the power to identify and specify backward class of
citizens, in whose favour reservations are to be
provided. We direct that such a body be constituted both E
at Central level and at the level of the States within four
months from today. They should become immediately
operational and be in a position to entertain and
examine forthwith complaints and matters of the nature
aforementioned, if any, received. It should be open to F
the Government of India and the respective State
Governments to devise the procedure to be followed by
such body. The body or bodies so created can also be
consulted in the matter of periodic revision of lists of
O.B.Cs ... " G
(para 847)
16. The National Commission for Backward Classes Act,
1993 (for short "the Acf') contain provisions for the constitution
H
686 SUPREME COURT REPORTS [2015] 5 S.C.R.
A of the National Commission For Backward Classes (NCBC),
its powers and functions and other allied matters. The salient
features of the Act which will require to be specifically noticed
may be set out hereunder.
B Section 2(a) and 2(c) provides as follows:
"2(a) - "backward classes" means such backward
classes of citizens other than the Scheduled Castes and
Scheduled Tribes as may be specified by the Central
c Government in the lists;
2(c) - "lists" means lists prepared by the Government
of India from time to time for purposes of making
provision for the reservation of appointments or posts
in favour of backward classes of citizens which, in the
D
opinion of that Government, are not adequately
represented in the services under the Government of
India and any local or other authority within the territory
of India or under the control of the Government of India".
E
Section 3 deals with constitution of NCBC. It provides
that the NCBC shall consist of the following persons
nominated by the Central Government.
F
(a) A Chairperson, who is or has been a Judge of the
Supreme Court or of a High Court;
(b) A social scientist;
G (c) Two persons, who have special knowledge in mat-
ters relating to backward classes; and
(d) A Member-Secretary, who is or has been an of-
ficer of the Central Government in the rank of a
H
RAM SINGH v. UNION OF INDIA 687
[RANJAN GOGOi, J.]
Secretary to the Government of India. A
Sections 9 and 11 of the Act read as under:
"9. Functions of the Commission
(1) The Commission shall examine requests for inclu- B
sion of any class of citizens as a backward class
in the lists and hear complaints of over-inclusion
or under-inclusion of any backward class in such
lists and tender such advice to the Central Govern-
ment as it deems appropriate. c
(2) The advice of the commission shall ordinarily be
binding upon the Central Government.
11. Periodic Revision of Lists by the Central D
Government ·
(1) The Central Government may at any time, and shall,
at the expiration of ten years from the coming into
force of this Act and every succeeding period of E
ten years thereafter, undertake revision of the lists
with a view to excluding from such lists those
classes who have ceased to be backward classes
or for including in such lists new backward classes.
F
(2) The Central Government shall, while undertaking
any revision referred to in sub-section (1), consult
the Commission."
17. Section 8 of the Act empowers the Commission to
lay down its own procedure while Section 10 enumerates the G
powers of the Commission while performing its functions
under Section 9(1) of the Act. There is no specific provision
in the Act which empowers the Central Government to
override the advice/recommendation of the Commission.
H
688 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Arguments on aeh!Jikof :PetitioM,CS
18. To begin with, learned counsel for the petitioners
seeks to attribute legal malice to the decision making process
resultantly vitiating the decision taken by the Union
B Government. The manner in which the decision was taken
commencing with the conferment of the review power in the
year 2011 by enactment of the extant Rules; the constitution
of Group of Ministers to oversee the matter; the exercise of
the first option available and the repeated requests made by
C the Government to the Commission to tender its advice
indicate the pre-determined manner in which the Central
Government was proceeding in the matter, it is urged. The
meeting of the cabinet on a Sunday (2.3.2014); the
publication of the notification on 4.3.2014 when the General
D Elections were notified on the next day i.e. 5.3.2014 has been
mentioned to contend that the impugned notification is based
on wholly extraneous considerations and is actuated by
political motives, namfi!ly, to gain electoral advantages.
E 19. It is contended that the impugned notification dated
04.03.2014 has been issued in derogation of the provisions
of Section 9(2) of the Act which provides that "advice of the
Commission shall ordinarily be binding upon the Central
Government". Even in a situation contemplated by Section 11
F of the Act the views of the NCBC would be equally compulsive
and binding and should commend for acceptance of the
Central Government except in situations where there are
strong compelling and overwhelming reasons not to do so.
None of the aforesaid situations do exist in the present case,
G it is claimed on behalf of the petitioners.
20. It is submitted that the earlier reports of the NCBC
dated 28.11.1997 and 25.11.2010 were founded on an
elaborate reasoning and upon a comprehensive consideration
H
RAM SINGH v. UNION OF INDIA 689
[RANJAN GOGOi; J.]
of all relevant materials. Not only the circumstances leading . A
to the submission of the report dated 26.2.2014 of the NCBC
make the decision of the Union Government to reject the
same wholly premeditated, even otherwise, the decision of
the Central Government to override the advice tendered by
the NCBC is not supported by any reasons recorded or by B
notings in the file. Neither the said decision can be said to
be a reasonable or possible conclusion that could have been
reached by the Union Government on the available materials.
21. The decisions in Barium Chemicals Ltd. Vs. C
Company Law BoarcP; Rohtas Industries Ltd. Vs. S.D.
Agarwal & Ors. 3; Shri Sitaram Sugar Co. Ltd. & Anr. Vs.
Union of India & Ors. 4 and Gazi Saduddin Vs. State of
Maharashtra & Anr. 5 have been relied upon to contend that
the satisfaction of the Central Government is open to challenge D
and within the reach of the judicial scrutiny both on grounds
of its legal fragility and ex facie unreasonableness. Learned
counsel for the petitioners has very elaborately taken us
through the advice/report of the NCBC dated 26.02.2014 to
contend that the exhaustive report of the said body contain a E
detailed analysis of the facts recorded in the reports of the
various State Commissions. The said exercise clearly
demonstrates that the Jats are a forward community in all the
States in question. The contrary view of the Union Government F
is wholly unsupported by any adequate, reasonable a~d
relevant grounds or basis. The decision of the Union
Government is also not based on any relevant quantifiable
data or material to enable recognition of the Jat Community
as backward within the meaning of Article 16(4) of the G
Constitution. Learned counsel for the petitioners has
2 1966 Supp SCR 311 /
3 (1969) 1 sec 325
• (1990) 3 sec 223
• (2003) 1 sec 330 H
690 SUPREME COURT REPORTS [2015] 5 S.C.R.
A elaborately placed the relevant materials on record in respect
of each of the States under consideration and has contended
that the said materials cannot reasonably sustain the decision
to include Jats in the Central lists of other Backward Classes
of the concerned States.
B
22. In reply, the learned Attorney General has argued that
the power to make provisions for reservation by inclusion of
the eligible classes in the Central lists flow from Article 16(4)
of the Constitution. The advice of the NCBC, according to the
C learned Attorney General, would not be very material
inasmuch as even dehors the provisions of the NCBC Act the
Union Government would not be denuded of its powers to add
or subtract from the Central Lists of Other Backward Classes.
The learned Attorney has alternatively contended that the
D present exercise of inclusion of Jats in the list of Other
Backward Classes is not pursuant to any exercise undertaken
under Section 9 of the NCBC Act so as to 'bind' the Union to
the advice tendered by the NCBC. It is also argued that the
inclusion of classes or groups in the State OBC Lists will be
E a strong and compelling factor for inclusion of such classes
in the Central Lists also inasmuch as the considerations
which had weighed with the State Government to include a
particular class as an other backward class would always be
F relevant for being taken into account for inclusion of the said
class in the Central List of Other Backward Classes. Such a
course, according to the learned Attorney, is necessary for
purposes of consistency and uniformity of action by the Union
and the States.
G 23. Pointing out the facts antecedent to the submission
of the report/advice of the NCBC on 26.2.2014, the learned
Attorney General has drawn the attention of the Court to the
fact that the process of tendering such advice had really
H commenced in the year 2011 and the delay that has occurred
RAM SINGH v. UNION OF INDIA 691
[RANJAN GOGOi, J.]
is attributable to the NCBC. The NCBC has been vacillating A
from time to time as would be evident from its decisions,
firstly, to defer consideration of the matter till finalisation of the
Caste Census Survey conducted by the Registrar General of
India and thereafter in deciding to approach the ICSSR for a
full survey in the six States and subsequently its decision to B
opt for a 2% sample survey. It is pointed out that even after
the decision to go for a sample survey, nothing had happened
for over a year. It is only in December 2013 after the Central
Government had 'reminded' the NCBC of the matter that the
NCBC had decided to entrust the ICSSR to carry out a study C
based on the available literature, books/documents. There
was no undue haste in the process claims the learned Attorney
General who also points out that timing of the notification i.e.
on the eve of the commencement of the General Elections
0
would not, by itself, be sufficient to hold the decision taken to
be vitiated in law or by legal malice.
24. The learned Attorney General has taken us through
the exhaustive materials on record i.e. the report dated
26.2.2014 of the NCBC; the reports of the various State E
Commissions; and report of the ICSSR including the report
of the llPA relied upon by the ICSSR. It is submitted, on the
basis of the said materials, that there is overwhelming
evidence to permit a conclusion to be reached that the Jat F
Community should be included in the Central Lists of Other
Backward Classes in the States in question. It is only after
such consideration that the impugned notification dated
04.03.2014 came to be issued. The conduct of the NCBC in
entrusting the responsibility of carrying out a literature survey G
to the Expert Body i.e. ICSSR on the ground that the NCBC
itself is not equipped to perform the task and, thereafter, in
acting as an Appellate Body sitting in jL•dgment over the views
of the said Expert Body has come in for sharp criticism by
the learned Attorney General. By referring to the specific H
692 SUPREME COURT REPORTS [2015] 5 S.C.R.
A conclusions of the NCBC recorded in its report dated
26.02.2014, it has been contended that the conclusions
reached are wholly untenable and unacceptable being
contrary to specific findings recorded by the ICSSR or in the
reports of the State Commissions with regard to the social,
B economic as well as educational status of the Jats.
25. The above submission advanced by the learned
Attorney General have been echoed by the learned counsels
appearing on behalf of the other respondents in the writ
C petitions i.e. Akhil Bharatvarshiya Jat Mahasabha, Jat
Aarakshan Sangharsh Samiti and the Jat Sabha Zila, Meerut.
The limited scope of judicial review that will be available to
this Court to scrutinise the decision taken by the Union
Government has been particularly urged by Shri Mohan
D Parasaran, learned senior counsel appearing for the Akhil
Bharatvarshiya Jat Mahasabha. In so far as Jat Sabha Zila,
Meerut is concerned, Shri Jayant Bhushan, learned senior
counsel has further urged that the test for determining social,
educational and economic backwardness laid down in Indra
E Sawhney case (supra) are fully satisfied by the Jat
Community so as to make its members eligible for inclusion
in the Central lists of OBCs.
26. What weight-age the advice/recommendation
F tendered by the NCBC should receive in the decision making
by the Union Government is a crucial determination that this
Court is required to make in the present case. The
observations in Indra Sawhney (extracted above) and the
expressed provisions contained in Section 9 of the NCBC Act
G clearly indicate that the advice tendered by the NCBC is
ordinarily binding on the Government meaning thereby that the
same can be overruled/ignored only for strong and compelling
reasons which reasons would be expected to be available in
H writing. As the constitution of the NCBC is traceable to the
RAM SINGH v. UNION OF INDIA 693
[RANJAN GOGOi, J.]
opinion rendered in Indra Sawhney (extracted above) there A
ean be no doubt that even when the exercise undertaken by
the Central Government is one under Section 11 of the Act,
the views expressed by the NCBC in the process of the
consultation mandated by Section 11, would have a binding
effect in the normal course. B
27. It will, therefore, be necessary to note what had
prevailed with the NCBC in tendering its advice in the instant
case not to include the Jat community in the Central Lists of
other backward classes in the nine States in respect of which C
the reference was made to the Commission. A lengthy
narration is unavoidable for it is only upon setting out the
relevant facts and circumstances in their proper conspectus
that the intrinsic merit of the advice tendered by the NCBC
can be determined. D
28. The NCBC had entrusted the task of the surv.ey of the
relevant literature to an Expert Committee constituted by the
ICSSR. On completion of the task the said Committee had
submitted its report in the matter to the NCBC. The State-wise E
summary of the findings of the Expert Body of the ICSSR may
be extracted below:
SUMMARY OF FINDINGS OF ICSSR
F
BIHAR
"The analysis is based on the Bihar State Backward
Classes Commission Report (1999) which had
recommended the inclusion of Jats in State OBC list. The
estimated population of Jats in Bihar from independent G
sources is about 80 thousand in 1988. Jats reside in
selected districts- in the Sta'te and there are both Hindu and
Muslim Jats. The Bihar State Backward Class Commission
considered the social, educational and economic condition H
694 SUPREME COURT REPORTS [2015] 5 S.C.R.
A of both Hindu and Muslim Jats and concluded that the Jat
community in Bihar is backward. The recommendation of
the Bihar State Backward Classes Commission is based on
the information sought through the questionnaires filled by
members of the community (the number of questionnaire
B received by the commission is not specified) and
representations from the Jat community. Since the report
is not based on household survey, "this committee is
not in a position to give facts and figures." The
Commission concluded that the Jat community in Bihar
C is not represented at all in the Group I and Group II jobs
in the Government. They are educationally backward
compared to other communities in Bihar and are
primarily engaged in agriculture and allied activities."
D DELHI
"The estimated population of Jats in Delhi is around 1.2
million (independent source). There are two reports, one
prepared by Delhi OBC Commission and another by an
E Independent researcher, The Delhi state OBC Commission
report does not have any absolute indicators on educatioria1
status, employment structure etc. However, the Commission
has reported indicator on net social standing, net
educational standing and net economic standing. Or net
F educational standing, Jats with composite score of 1. 17 are
behind Gujars (1.34) and Ahirs (1.22). On net social
standing, the composite score of Jats is 17.24, which is
significantly lower than the Gujars (27.14) and Ahirs (19.85).
On composite economic score, score of Jats is 16.55, lower
G than Gujars (19.38) but higher than the Ahirs (14.86). Thus,
with respect to social and educational standing, Jat lags
behind Gujars and Ahirs while in case of economic
standing, they lag behind compared to Gujars but ahead
H of Ahirs. It is to be noted that both Gujars and Ahirs are
RAM SINGH v. UNION OF INDIA 695
[RANJAN GOGOi, J.]
included in the Central OBC list." A
GUJARAT
"In case of Gujarat, the estimated Jat population is 0.65
million (independent source) but there is no documentation
8
available about spatial or religion-wise break-up of Jat
population. Further, there is lack of information on the
parameters (social, educational and economic) specified
by the NCBC. However, the Gujarat government website
mentions that Jat Muslims are included in the Central OBC c
list."
HARYANA
"One of the states where Jats have sizeable population ·
is Haryana. Our observations are based on the Haryana D
State OBC Commission report, which recommended
reservation for Jats as OBC in the state in 2012. The
commission based its recommendations on a sponsored
study conducted by Sangwan (2012). The findings of the
study indicate that on occupational structure, Jats in E
Haryana are a landowning community. Nearly 87% of the
Jats are engaged in agriculture. The other economic
activities pursued by Jats include animal husbandry and
trade. In government employment, Jats have about 21%
share in the total class I & II services in the state which F
is about four percentage points tower than their share
in population (25%) in 2012. However, they lag behind
compared to Bishnoi and Brahmins whose share in
government employment in Class I & II is higher than their G
respective population share. The comparable figures for
Ahir/Yadava and Gujar (the other two comparable OBC
communities with Jats) are not reported in Haryana
Backward Classes Commission Report 2012. On the
educational achievements, more than 12% Jat children in H
696 SUPREME COURT REPORTS [2015] 5 S.C.R.
A the age group of 6-14 years never attended school, which
is higher than many other backward castes. At the
graduation level, Jats have about 6.5% enrolment, which is
less than average level of 8. 3%. At the postgraduate level,
enrolment of Jats is 1. 71% against the average of 2.26% of
B the respondents. The available data, therefore, suggests
that in Haryana Jats are land-owning community. Their
share in class I & II government service is close to their
population share but they lag behind in both school and
higher education enrolment."
c
HIMACHAL PRADESH
"In case of Himachal Pradesh, the HP State OBC
Commission Report is the only available source of
D information. The Report is based on hearing of about 866
persons conducted by the full bench of the Commission.
The Commission estimated the Jat population in Himachal
Pradesh is 43, 252. The Commission evolved a 25-point
criteria based on NCBC guidelines. However, the Report
E does not contain any quantitative information about the
social, economic and educational status of Jats vis-a-vis
• other communities. The State Commission has
recommended for inclusion of Jats in the State OBC list.
Data on literacy rate and higher education enrolment of Jat
F children is lacking in the State Commission Report.
However, the report observed that dropout rate of
children beyond primary level being high, they are put
to household work or work as agriculture labour. On
share in the government service, the State Commission
G Report observed that the incidence of representation of
Jats In the state services in comparison to general
average is very low. Similarly, the state commission
report observes that the representation of Jats in the
H public sector is negligible. The report of the commission
RAM SINGH v. UNION OF INDIA 697
[RANJAN GOGOi, J.]
also mentions that most of the members (male, female and A
children) of this community are depending on agriculture
labour on a much larger scale than Rajputs and Brahmins.
It is to be noted that the Commission Report does not
include quantitative information on literacy, occupation
and representation in government service on the basis B
of which it has made these recommendations. The
Commission came to unanimous conclusion that this
community is socially, educationally and economically
backward and is fit for inclusion in the State list of OB Cs."
c
MADHYA PRADESH
"In case of Madhya Pradesh, in 2002, State
Government included Jats in the State OBC list though
no details are available on the parameters or criterion D
used by the State OBC Commission for the inclusion of
Jats in the State list. Earlier, in the year 1999, the NCBC
had observed that the Jats in Madhya Pradesh are not
socially backward and were not included in the central
ooc~· E
RAJASTHAN
"In case of Rajasthan, the available information
suggests that Jats are included in both the Central and State F
OBC list since 1999. But the report of the Rajasthan State
OBC Commission has not been made available to us by
NCBC. Therefore, we have based this comparative picture
on a study sponsored by the State Government and
conducted by Institute of Development Studies, Jaipur. The G
report of the sponsored study was submitted to the
Department of Social Justice and Empowerment,
Government of Rajasthan 2012. The available information
shows that more than 91% Jat households own land, which
is higher than that of Ahir, Gujar and the rest of OBCs. H
698 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Around 29% of the Jat population in the age group of 7-59
years is reported to be illiterate in 2012. This is substantially
lower than several caste groups that are included in the OBC
list. Among the Jats, 7. 5% households have at least one
member who is graduate, which is lower than the Ahir and
B Charan communities but somewhat better than the rest of
the OBCs. Among the Jats, it is reported that more than 6. 8%
household have at least one member in the government
service. This is marginally lower than Ahir, Vishnoi and
Charan households but higher than the rest of the backward
C classes. Thus, Jats in Rajasthan are better off with
respect to ownership of land but somewhat lag behind
with respect to literacy rate, enrolment in graduation and
representation in government service."
D UTTAR PRADESH AND UTTARAKHAND
"The Jat population is primarily concentrated in western
Uttar Pradesh and Uttarakhand. Jat community got included
in the State OBC list in 2000. Our observations are based
E on the Social Justice Committee Report (SJCR) 2001; which
has been prepared after the Jat community was already
included in the state OBC list by the Uttar Pradesh
Government in 2000, The SJCR population estimates are
based on the Village Panchayat Family Register,
F Accordingly the highest population at 19. 6% is that of Ahir
followed by 7.5 % Kurmi (different variants) and 3.6% Jats.
The comparable socioeconomic indicators are available in
Singh (2003) that we use in this report. Singh (2003) shows
that about 92% Jat households own land. The figures for Ahir
G and Kurmi are 95% and 100%, respectively. Singh (2003)
also reports that 89% of the workers among the Jats in rural
areas are engaged in primary sector activities, which is
similar to that of Ahir!Yadava but lower than the Gujar
community. The proportion of tho~e completed
H graduation and above in the Jat community is 1. 7%
RAM SINGH v. UNION OF INDIA 699
[RANJAN GOGOi, J.]
compared to 3% for Yadava. Similarly, the proportion of A
post-graduate is 0.2% for Jat and 0,7% for Yadava. The
data compiled by SCJR in_ 2001 from higher educational
institutions on 207,000 students indicate that the share
of Jats is much less than their share in the population
while that of Ahir and Kurmi was much higher than their B·
population share. The information compiled by SJCR
suggests that share of Ahir!Yadava is 3: 4% whereas
Kurmis have 11.2% in professional education. Share of
Jats is only.0.3% that is way below the share of Ahir and
Kurmi shares. In the Group A & B Government C
Employment, the share cff Jat is 5.5% and 4.3%,
respectively, which is slightly higher than their share in
OBC population. Corresponding figures for Yadava and
their variant for Group A & B services is 46% and 42% Of D
the OBC which is much higher than their share in the
population of OBC which is 19.4%. Similar differences are
observed in case of Kurmi and their variants. As far as
Uttarakhand is concerned, no separate report is available.
Apparently, Uttarakhand has accepted the list of OBC as that E
of Uttar Pradesh. Thus, Jats are at par compared to OBCs
such as Ahir/Yadav as far as ownership of the land is
concerned. However, in case of enrolment in higher and
technical education they lag behind Ahir!Yaday. In case of
representation in the government service, the share is F
proportionate to their population but relatively lower than
the Ahir!Yadava and Kurmi."
INTER-STATE COMPARISON
"The NCBC has asked this committee fo_provide inter- G
state variation in the social, economic and occupational
status of Jats vis-a-vis other backward class communities.
Going by the summary of the status of different communities
reported from paras 9 to 16 above, the committee is of the
view that due to lack of comparable quantitative data on the H
700 SUPREME COURT REPORTS [2015] 5 S.C.R.
A social, educational and economic status of Jats and other
backward class communities in the nine states, any
meaningful comparison is not possible. However, based on
available quantitative and qualitative information, it is the
impression of the committee that the situation of Jats
B with respect to ownership of land and occupation,
education level and representation in the government
service, the Jats from the states of Bihar, Gujarat and
Himacha/ Pradesh are worse off compared to the Jats
from Delhi, Haryana, Rajasthan and Uttar Pradesh and
C Madhya Pradesh. Nevertheless, these are impression of
the committee based on the limited comparable data and
information."
29. The report of the Expert Committee constituted by the
D ICSSR was based on a study of eight specific reports which
were sent by the Group of Ministers to the NCBC at the time
of seeking a review of the earlier decision of the NCBC. The
said eight reports, details of which are mentioned below, in
turn, were forwarded by the Commission to the ICSSR -
E
(1) Social Justice Committee Report, Uttar
Pradesh (2001)
(2) Socio-Economic Status of Farming
F Communities in Northern India, Uttar Pradesh
(2003)
(3) Caste, Land and Political Power in UP, Uttar
Pradesh
G (4) Justice Gurnam Singh Commission Report,
Haryana (1990)
(5) Justice K.C. Gupta Report, Haryana (2013)
H (6) Justice Gummanmal Lodha Commission
RAM SINGH v. UNION OF INDIA 701
[RANJAN GOG91, J.]
Report, NCT of Delhi (1999) A
(7) Dr. Lipi Mukhopadbyay Report, Delhi (2005)
(8) State Backward Classes Commission's
Reports of State Governments of Rajasthan, B
Madhya Pradesh, Himachal Pradesh and
Gujarat.
30. Apart from the aforesaid eight reports, fifty one
representations in favour of inclusion of Jats in the Central
Lists and fifty eight representations against such inclusion C
received by the NCBC were also forwarded to the ICSSR.
On receifilt of the report of ICSSR, the summary of which has
been indicated above, the Commission on an extensive study
of the same and on a further detailed examination of the eight D
specific reports which were referred to it by the Group of
Ministers carried out a State-wise analysis of the aforesaid
materials. Thereafter it came to specific findings in respect
of each of the States, summary of which findings, is indicated
below: E
RsJevant Findings in the Report of the NCBC
Haryana
The NCBC found that the report of the State Backward F
Commission of the year 2012 (Justice K.C. Gupta
Commission Report) was the primary document pertaining to
Haryana. The NCBC found certain inherent flaws in the said
report which, in its view, made the same unworthy of
acceptance. Some of the reasons recorded by the NCBC for G
taking the above view are :
1) Justice K.C. Gupta Commission's report is primarily
based on the survey conducted in the year 2012 by
Maharishi Dayanand University (MDU), Rohtak which H
702 SUPREME COURT REPORTS [2015] 5 S.C.R.
A was a very selective study.
2) Apart from Justice Gupta, the Commission consisted
of at least two other persons who belonged to the
classes/groups which were under consideration i.e.
B Bishnoi and Ror who came to be included in the State
List of Other Backward Classes.
3) The survey undertaken by the MDU, Rohtak was by one
Prof. K.S. Sangwan who belong to the Jat community;
c the Vice-chancellor of the MDU was also a Jat. In the
public hearing conducted by the Commission, the
aforesaid two persons were accused of bias.
4) The survey undertaken by MDU was a comparative
study of the Jats with higher castes like Brahmins,
D
Rajputs etc and comparable figures in relation to Ahirs,
Yadavs, Kurmis and Gujars were not available. In the
course of the public hearing it transpired that in com-
parison to the aforesaid communities i.e. Ahirs,
E Yadavs, Kurmis and Gujars, the Jats were superior.
5) The villages where the survey was undertaken were as
per details provided by the State Commission and not
independently undertaken by the MDU.
F 6) The representation of the Jats in the Armed Forces was
not studied.
31. The Justice Gurnam Singh Commission Report be-
ing of the year 1990 and having been earlier considered at
G the time of submission of the report of the NCBC on
28.11.1997, was not considered appropriate for being con-
sidered orr:e again.
32. The NCBC had evolved a set of guidelines, criteria,
H formats and parameters against which all claims for inclusion
RAM SINGH v. UNION OF INDIA 703
[RANJAN GOGOi, J.]
as an other backward class are required to be considered. A
The said parameters were evolved on the basis of the Manda!
Commission Report and the judgment in Indra Sawhney. 11
indicators under three broad heads i.e. social, economic and
educational, details of which are indicated below, were iden-
tified. 8
A. Social
(i) Castes/Classes considered as socially backward by
others. c
(ii) Castes/Classes which mainly depend on menial
labour for their livelihood.
(iii) Castes/ Classes where at least 25% females and
10% males above the State average get married at D
an age below 17 years in rural areas and at least 10%
females and 5% males do so, in urban areas.
(iv) Castes/Classes where participation of females in work
is at least 25% above the State average. E
B. Educational
(v) Castes/Classes where the number of children in the
age group of 5-15 years who never attended school
F
is at least 25% above the State average.
(vi) Castes/Classes where the rate of student drop-out in
the age group of 5-15 years is at least. 25%. above
the State average.
G
(vii) Castes/Classes amongst whom the proportion of
matriculates is at least 25% below the State average.
C. Economic
H
704 SUPREME COURT REPORTS [2015] 5 S.C.R.
A (viii) Castes/Classes where the average value of family
assets is at least 25% below the State average.
(ix) Castes/Classes where the number of families living in
Kuccha houses is at least 25% above the State
B average.
(x) Castes/Classes where the source of drinking water is
beyond half a kilometer for more than 50% of the
households.
c (xi) Castes/Classes where the number of households
having taken consumption loan is at least 25% above
the State average.
33. Relative weight-age to each of the parameters under
D the aforesaid three broad heads is to be in the proportion of
3:2:1. The Justice K.C. Gupta Commission however followed
12 Social indicators, 7 Educational indicators and 5
Economic indicators. That apart, according to the
Commission, backwardness that was required to be
E determined, is primarily social backwardness which, in turn,
depended on how the other castes/classes perceived whether
the Jats were socially backward or not. Justice K.C. Gupta
Commission did not proceed in the matter from the aforesaid
F perspective. Further in its report the NCBC found that
indicators like Infant Mortality Rate, Maternal Mortality Rate,
Deliveries at Home etc. had been considered to determine
social backwardness. Such data, according to the NCBC, are
actually Public Health Statistics and are wholly irrelevant for
G determination of social backwardness.
34. The NCBC in its report also recorded its
disagreement with the views of the K.C. Gupta Commission
that despite there being 26 (out of 90) MLAs belonging to the
H Jat community and 4 Members of Parliament (out of 15), the
RAM SINGH v. UNION OF INDIA 705
[RANJAN GOGOi, J.]
Jats have not progressed socially, educationally and A
economically. In this regard, the NCBC had also recorded that
in the course of public hearing it transpired that several Chief
Ministers of Haryana who held office for long periods of time
belong to Jat Community and in fact there has been a Prime
Minister of the country who was a Jat (Ch. Charan Singh). B
Uttar Pradesh
The NCBC in coming to its conclusion with regard to the
claim of Jats of the State of Uttar Pradesh for inclusion in the c
Central Lists of other backward classes relied on three basic
documents, namely, -
(i) Social Justice Committee Report popularly known as
Hukum Singh Committee Report (2001).
D
(ii) Social Economic Booklet on Social economic status
of farming community in Northern India by Shri Ajit
Kumar Singh {2003).
(iii) Caste and Class in India by K.L.Sharma (1994). E
35. The Hukum Singh Report, being 14 years old, was
understood by the NCBC as having serious limitations in fur-
nishing current data. The said committee, in fact, did not un-
dertake any study of the socio-educational status of the Jat F
community. Rather, its primary object was to investigate the
facilities extended to SCs/STs and OBCs in the State of U.P.
and to propose modification in the quota of reservation in the
new State of Uttarakhand and the truncated State of UP. In
performing the said exercise, the Committee recommended G
the inclusion of Jats in Schedule 'B' consisting of 8 different
other backward classes who were to have the benefit of 9%
reservation. No study of the Jats of UP as a socially, economi-
cally or educationally backward group of people was under-
taken by the Committee. H
706 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 36. The booklet compiled by Shri Ajit Kumar Singh (in the
year 2003) is based on a small sample survey of 2000 rural
households selected from 20 villages spread over 5 districts
of Western UP. By its very nature it was found to be of lim-
ited utility. In the said book it is recorded that "Jats, Gujars,
B Kurmis and Yadavs were the main beneficiary of the
green revolution and have acquired political clout due to
their numerical strength. They are the main land own-
ing classes now and have progressed educationally as
well and are seeking greater access to government jobs
C through reservation politics. These intermediate castes
enjoy relatively better economic conditions as compared
to Lodhs and the motley group f)f ;;astes called Other
Backward Castes or OBC, who together form the rela-
D tively poorer section of the middle classes in the rural
areas." The said view/findings were specifically taken note
of by the NCBC while making its recommendations.
37. The statistics and data available in the book - Caste
and Class in India by K.L. Sharma are of considerably old vin-
E tage. The book, itself, is 20 years old. In any case, in the said
book it has been recorded that "the intermediate caste in
U.P. can be broadly divided into three categories i.e. Jats,
Tyagis, Bhumihars, who have a considerable position in
F land, possess high ritual status and because of their
regional concentration are dominapt in the politics of a
few districts". The aforesaid view was specifically taken note
of by the NCBC while tendering its advice to the Government.
Delhi
G
Two pieces of literature formed the foundation of the study
undertaken by the NCBC with regard to the status of Jats in
the State of Delhi. The first is Justice Gumanmal Lodha
Commission Report which is the State OBC Commission
H Report for Delhi. The survey undertaken was limited to about
RAM SINGH v. UNION OF INDIA 707
[RANJAN GOGOi, J.]
2500 households belonging to 18 castes out of which 11 were A
already in the OBC category. The said report (2002) was
considered by the NCBC while tendering its earlier advice in
November, 2010 against the inclusion of Jats. The second
document is a report prepared by one Prof. Lipi
Mukhopadhyay on behalf of the Indian Institute of Public B
Administration (llPA). The said report was prepared on the
basis of a structured questionnaire with topics of relevance
to the subject and collected from a total sample of 2000
households. A total of 46 villages covered under 5 districts
were surveyed. The Lipi Mukhopadhyay Report records the C
social profile of the Jat community in detail, relevant extract
of which is set out below :
"Jats occupy prominent position in Haryana,
western Uttar Pradesh, Punjab, Delhi and eastern D
Rajasthan, being the largest group in North
Western India. They are divided into twelve clans
and about three hundred gotras. Though the origin
of Jat is shrouded in mystery, they are believed to
be an lndo-Aryan tribe, connected to the Vedic E
civilization (4500 BC- 2500 BC) that existed along
the Saraswati River. Even today the highest density
of Jat population is along the dried beds of
Saraswati, starting from Haryana, going on to F
Punjab and ending up in Rajasthan. They play a.
predominant role in this, region. Agricultur(!,
soldiering and cattle rearing have been the main
occupation of Jats. Jats are brave and hardworking
and independent minded people. The Jats led a G
fairly autonomous political life.
Historically, it is argued that the Jats and Rajputs
were of one race. But a certain section of the·.·.
people having risen in the social scale started H
708 SUPREME COURT REPORTS [2015] 5 S.C.R.
A associating themselves as the original Rajputs and
hence Kshatrias. These Rajputs disassociated
themselves from the so-called Jats or descendent
ofjata of Lord Shiva.
B During the survey the overall response in respect
to the social status was not very clear. The
community as a whole responded that they are not
treated well by other castes and considered lowly
especially by upper caste Hindus like Brahmins and
C Kshatriyas. They follow a strict gotra system in their
social structure. Simiar to the Hindu custom
marriages within the same gotra is not allowed.
Jats in the National Capital Territory of Delhi, as a
D community cannot be discriminated into any social
structure except the gotra. However depending on
the social treatment meted out to them this
community is divided. Hence different sections of
the society feel associated with different castes. As
E comparison to other castes the Jat community as
whole is also treated lowly and in the present
situation especially by the Brahmins and also by
Rajputs. They are not considered as kshatriyas or
of the same status to them. There is social stigma
F like being called gawars or unwise and seen as of
low status. Apart from the varna system there is
gotra division among the Jats like Chitania, Chadel,
Bambolia, Taporwadia Nain, Bahadu, Ladhowal,
Rinwan and many more specially in Punjab and
G Rajasthan."
In sharp contradiction of the above the Committee also
found -
H "Half of the Jat community opined that they are
RAM SINGH v. UNION OF INDIA 709
[RANJAN GOGOi, J.]
treated well by other dominant castes like Brahmins and A
kshatriyas. It is significant to note that these are the
people who assumed or considered themselves closer
to the kshatriyas, so much so that they enjoy the same
status as the former. A significant 29. 7% of the population
felt the social stigma of inferiority by other castes. In fact B
they said that their standing in the society is like the
shudras. Others which is about 19.2% said that there is
no social discrimination against them."
38. Insofar as education is concerned, though the literacy C
rate is high i.e. 85.7% as against 83,7% for the general
population, the level of education is mainly high school and
drop-out at school level is very high. The economic standard
of the Jat community was, however, found to be relatively
better. The employment .in the government jobs, however, D
according to the report, was quite low. Only 2.4% Jats
engaged in high-end services while 19.1% Jats are engaged
in low-end services like "peons, OTC drivers, teachers in
primary school etc."
E
39. On the basis of the aforesaid report of the llPA, the
NCBC Commission recorded, inter alia, the following findings
"However, examination of the report of /IPA leaves F
no manner of doubt that Jats as a class cannot be
treated as a backward class. Ethnically, they are at
a higher level; they are of lndo Aryan Descent; their
educational level is high; and social status they
command is higher than ordinary shudras. In the G
absence of social and educational backwardness
coupled with inadequacy of representation in the
services, Article 15(4) and 16(4) do not apply for the
purpose treating the Jat as backward classes.
H
710 SUPREME COURT REPORTS [2015) 5 S.C.R.
A No case is made out for any review of the advice
of the NCBC."
Himachal Pradesh
40. The NCBC took into account that the claim of the Jats
8
for inclusion in the State List of OBCs in Himachal Pradesh
had been differently considered at different points of time by
the State Commission itself. While the State Commission had
rejected the said claim in the year 1999 and its
c recommendations had been accepted by the State
Government in the year 2000, the Report of the State
Commission prepared in October 2002 recommended
inclusion of the Jats who, accordingly, came to be included
in the State List. From the Report of the NCBC it appears that
o a public hearing was conducted by the Commission in Shimla
on 17.08.2011 and on the basis of what had transpired and
also upon consideration of the Report of the State
Commission prepared in October 2002, the NCBC decided
to keep the matter pending. No compulsive material,
E according to the NCBC, was laid before it in the course of
the present exercise so as to enable a recommendation in
favour of the Jats of Himachal Pradesh to be made by it.
Rajasthan
F
41. The NCBC in its report dated 28.11.1997 had
recommended the inclusion of Jats (excluding Dholpur and
Bharatpur districts) in the Central List of other backward
classes. On the basis of the recommendation of the NCBC,
G the Government of India had issued a Notification dated
27.10.1999 to the above effect. Following the said
Notification, the State Government had also issued a
Notification including Jats in the State List of other backward
classes (excluding the two districts). Thereafter, the State
H Commission recommended for the removal of the area
RAM SINGH v. UNION OF INDIA 711
[RANJAN GOGOi, J.]
restriction of the Jats in the two districts which was also A
accepted by the Government of Rajasthan and a Notification
dated 10.01.2000 was issued. It appears that in the course
of survey undertaken by ICSSR, the report of the State
Commission for OBCs was not made available. In the
absence of the said Report, a study sponsored by the State B
Government and conducted by the Institute of Development
Studies, Jaipur, was considered. On the basis of the findings
recorded by the ICSSR in its report, (earlier extracted), the
Jats were found to be better off in regard to ownership of land
though in respect of literacy rate and representation in C
Government service they were found to be marginally lower
than Ahirs, Vishnois and Charans but better than rest of the
OBCs. In the aforesaid backdrop the NCBC came to the
conclusion that on the basis of the materials available as well
0
as what had been revealed in the course of the the public
hearings conducted on 10.02.2014 and 13.02.2014 "the
preponderance of evidence adduced by those speaking
against the motion was much more than those
speaking for." Under these circumstances the NCBC did not E
find any reason to interfere with its earlier order issued on the
subject.
Madhya Pradesh
42. The State Backward Classes Commission of the F
State of Madhya Pradesh undertook a study of Jat Community
in the districts of Dewas and Hoshangabad in the year 1994.
The findings of the study had indicated that the Jats
considered themselves equal to the Rajputs; "their political
situation is very good" and so is their social status. The State G
Commission therefore did not recommend the inclusion of the
Jats in the State List of OBCs. The said recommendation was
approved by the State Government on 21.12.1999. Thereafter,
on account of the representations received by the State H
712 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Commission, another study was conducted in January 2002
in a single district of the State i.e. "Harda" district. Based on
the aforesaid study, which the NCBC found to be cursory, the
Jats came to be included in the State List. The aforesaid
materials failed to convince the NCBC that it would be
B justified to include the Jats in the State of Madhya Pradesh
in the Central List of Other Backward Classes.
Bihar
c 43. The Jat Hindus of 4 districts of Bihar and Jat Muslims
in 5 districts are included in the State List of Other Backward
Classes. In the report of the ICSSR it has been mentioned
that the recommendation of the State Commission is based
on information received through questionnaire (number not
D indicated) and not on the basis of any household survey.
Considering the materials made available to it, the NCBC
came to the conclusion that the recommendation of the State
Commission was based on a "flimsy four page report" without
any formal survey or study. Furthermore, according to the
E NCBC nothing was revealed in the course of the public
hearings to justify the inclusion of Jats of Bihar in the Central
List of Other Backward Classes.
Uttarakhand
F
44. No separate report was prepared for Uttarakhand by
the State Commission and the Jats in the State came to be
included in the State List of OBCs merely because the State
of Uttarakhand had accepted the list of OBCs in the State List
G of Uttar Pradesh. In the absence of an independent survey
and information, the claims of the Jats of Uttarakhand for
inclusion in the Central List had been negatived by the NCBC
particularly when it had recommended that the claims of the
Jats in the State of U.P. be rejected.
H
RAM SINGH v. UNION OF INDIA 713
[RANJAN GOGOi, J.]
Gujarat A
45. The Jat Muslims were included in the Central List of
OBCs way back in the year 1993 but the Jat Hindus had not
been so included either in the State List or the Central List.
The cases of Jat Hindus in Gujarat were considered by the B
NCBC in the year 2011 but in the absence of relevant
information its decision was deferred till the report of the
ICSSR is received. The said report of the ICSSR prepared
on the basis of the literature survey mentions (as noted and
extracted above) that there is lack of information on the C
parameters (social, educational and economic) specified by
the NCBC. In these circumstances, the claim of the Jats in
Gujarat was not recommended by the NCBC in its report
dated 26.2.2014.
D
Our Conclusions
46. Undoubtedly, the report dated 26.02.2014 of the
NCBC was made on a detailed consideration of the various
reports of the State Backward Classes Commissions; other E
available literature on the subject and also upon consideration
of the findings of the Expert Committee constituted by the
ICSSR to examine the matter. The decision not to recommend
the Jats for inclusion in the Central List of OBCs of the States
in question cannot be said to be based on no materials or F
unsupported by reasons or characterized as decisions
.arrived at on consideration of matters that are, in any way,
extraneous and irrelevant. Having requested the ICSSR to go
into the matter and upon receipt of the report of the Expert
Committee constituted in this regard, the NCBC was under G
a duty and obligation to consider the same and arrive at its
own independent decision in the matter, a duty cast upon it
by the Act in question. Consideration of the report of the
Expert Body and disagreement with the views expressed by
H
714 SUPREME COURT REPORTS [2015] 5 S.C.R.
A the said body cannot, therefore, amount to sitting in judgment
over the views of the experts as has been sought to be
contended on behalf of the Union. In fact, as noticed earlier,
the Expert Body of the ICSSR did not take any particular stand
in the matter and did not come up with any positive
B recommendation either in favour or against the inclusion of
the Jats in the Central List of OBCs. The report of the said
Body merely recited the facts as found upon the survey
undertaken, leaving the eventual conclusion to be drawn by
the NCBC. It may be possible that the NCBC upon
C consideration of the various materials documented before it
had underplayed and/or overstressed parts of the said
material. That is bound to happen in any process of
consideration by any Body or Authority of voluminous
inform~tion that may have been laid before it for the purpose
0
of taking of a decision. Such an approach, by itself, would not
make either the decision making process or the decision
taken legally infirm or unsustainable. Something more would
be required in order to bypass the advice tendered by the
E NCBC which judicially (Indra Sawhney) and statutorily
(NCBC Act) would be binding on the Union Government in
the ordinary course. An impossible or perverse view would
justify exclusion of the advice tendered but that had, by no
means, happened in the present case. The mere possibility
F of a different opinion or view would not detract from the
binding nature of the advice tendered by the NCBC.
47. Of relevance, at this stage, would be one of the
arguments advanced on behalf of the Union claiming a power
G to itself to bypass the NCBC and to include groups of citizens ·
in the Central List of OBCs on the basis of Article 16(4) itself.
Undoubtedly, Article 16(4) confers such a power on the Union
but what cannot be overlooked is the enactment of the specific
statutory provisions constituting a Commission (NCBC) whose
H recommendations in the matter are required to be adPquately
RAM SINGH v. UNION OF INDIA 715
[RANJAN GOGOi, J.)
considered by the Union Government before taking its final A
decision. Surely, the Union cannot be permitted to discard its
self-professed norms which in the present case are statutory
in character.
48. Certain other issues arising may be conveniently B
considered at this stage.
One such issue arises from the contentions advanced on
behalf of the respondents, particularly on behalf of the Union
Government, that the OBC lists of the concerned States, by c
themselves, can furnish a reasonable basis for the exercise
of inclusion in the Central Lists. The above contention is
sought to be countenanced by the further argument that the
Union and the State Governments under the constitutional
scheme have to work in tandem and not at cross purposes. o
While there can be no doubt that in the matter of inclusion in
the Central Lists of other backward classes, the exercise
undertaken by the State Governrnents in respect of the State
Lists may be relevant what cannot be ignored in the present
case is the very significant fact that in respect of all the States E
(except Haryana) the inclusion of Jats in the OBC Lists was
made over a decade back. A decision as grave and important
as involved in the present case which impacts the rights of
many under Articles 14 and 16 of the Constitution must be
taken on the basis of contemporaneous inputs and not F
outdated and antiquated data. In fact, under Section 11 of the
Act revision of the Central Lists is contemplated every ten
years. The said provision further illuminates on the necessity
and the relevance of contemporaneous data to the decision
making process. G
49. The backwardness contemplated by Article 16(4) is
social backwardness. This is implicit in the judgment in Indra
Sawhney (supra), as will be noticed in a later part of the
present order. Educational and economic backwardness may H
716 SUPREME COURT REPORTS [2015] 5 S.C.R.
A contribute to social backwardness. But social backwardness
is a distinct concept having its own connotations. The extracts
of the Minutes of the Meeting of the Cabinet held on 2nd
March, 2014 which had preceded the impugned notification
dated 4th March, 2014 tends to overlook the fact that crucial
B test for determination of the entitlement of the Jats to be
included in the Central Lists is social backwardness. This
would be evident from Para 3 of the Minutes of the Cabinet
Meeting dated 2nd March, 2014 which is extracted below:
c 3. "The /CSSR has observed that Jats in Haryana
are a land owning community and while their share
in Class I & II Government services is closer to their
population, they lag behind both in school and
higher educational enrolment. In the National
D Capital Territory of Delhi, in terms of social and
educational standing, Jats lag behind as compared
to Gujars, who have been included as OBC in the
Central List. Similarly, in Uttar Pradesh and
Uttarakhand, in the enrolment in higher and
E technical education, Jats lag behind Ahirs/Yadavs.
In Himachal Pradesh, the State Commission has
come to the conclusion that the Jat Community is
socially, educationally and economically backward
and is fit for inclusion in the State list of OBCs. In
F
Rajasthan, too, as regards literacy rate, enrolment
in graduation level courses and representation in
Government services, Jats lag behind."
50. In so far as Haryana is concerned, the test adopted
G appears to be educational backwardness. Similarly for the
NCT of Delhi also, educational backwardness has been taken
into account as the determining factor for inclusion of Jats
along with the fact that the Jats are behind the Gujars who
H are already included in the Central Lists of OBCs. Similarly,
RAM SINGH v. UNION OF INDIA 717
[RANJAN GOGOi, J.]
in Uttar Pradesh and Uttarakhand, the test appears to be A
educational backwardness; same is the position with regard
to Rajasthan. Though the States of M.P., Gujarat and Bihar
have also been included in the Central Lists of OBCs by
impugned notification, no apparent consideration of the cases
of these States is reflected in the Minutes of the Cabinet B
Meeting dated 2"d March, 2014. Of course, the Cabinet is not
expected to record the manner of its consideration of each
of the States but when it is done so for some of the States,
the absence of any mention of the other States would be a
strong basis to conclude that the States that do not find any C
mention in the Minutes, in fact, did not receive the
consideration of the Cabinet, at all.
51. A very fundamental and basic test to determine the
authority of the Government's decision in the matter would be D
to assume the advice of the NCBC against the inclusion of
the Jats in the Central List of Other Backward Classes to be
wrong and thereafter by examining, in that light, whether the
decision of the Union Government to the contrary would pass
the required scrutiny. Proceeding on that basis what is clear E
is that save and except the State Commission Report in the
case of Haryana (Justice K.C. Gupta Commission Report)
which was submitted in the year 2012, all the other reports
as well as the literature on the subject would be at least a F
decade old. The necessary data on which the exercise has
to be made, as already observed by us, has to be
contemporaneous. Outdated statistics cannot provide
accurate parameters for measuring backwardness for the
purpose of inclusion in the list of Other Backward Classes. G
This is because one may legitimately presume progressive
advancement of all citizens on every front i.e. social,
economic and education. Any other view would amount to
retrograde governance. Yet, surprisingly the facts that stare
at us indicate a governmental affirmation of such negative H
718 SUPREME COURT REPORTS [2015] 5 S.C.R.
A governance inasmuch as decade old decisions not to treat
the Jats as backward, arrived at on due consideration of the
existing ground realities, have been reopened, inspite of
perceptible all round development of the nation. This is the
basic fallacy inherent in the impugned governmental decision
B that has been challenged in the present proceedings. The
percentage of the OBC population estimated at "not less than
52%" (Indra Sawhney) certainly must have gone up
considerably as over the last two decades there has been
only inclusions in the Central as well as State OBC Lists and
C hardly any exclusion therefrom. This is certainly not what has
been envisaged in our Constitutional Scheme.
52. In so far as the contemporaneous report for the State
of Haryana is concerned, the discussion that has preceded
D indicate adequate and good reasons for the view taken by
the NCBC in respect of the said Report and not to accept the
findings contained therein. The same would hardly require any
further reiteration.
· E 53. Past decisions of this Court in M.R. Ba/aji Vs. State
of Mysore 6 and Janaki Prasad Vs. State of Jammu &
Kashmir had conflated the two expressions used in Articles
15(4) and 16(4) and read them synonymously. It is in Indra
Sawhney's case (supra) that this Court held that the terms
F "backward class" and "socially and educationally backward
classes" are not equivalent and further 'hat in Article 16(4) the
backwardness contemplated is mainly social. The above
interpretation of backwardness in Indra Sawhney (supra)
would be binding on numerically smaller Benches. We may,
G therefore, understand a social class as an identifiable section
of society which may be internally homogenous (based on
caste or oc1 upation) or heterogeneous (based on disability
or gender e.g. transgender). Backwardness is a manifestation
H 6
1963 Suppl. (1) SCR 439
1
(1973) 1 sec 420
RAM SINGH v. UNION OF INDIA 719
[RANJAN GOGOi, J.]
caused by the presence of several independent A
circumstances which may be social, cultural, economic,
educational or even political. Owing to historical conditions,
'
particularly in Hindu society, recognition of backwardness has
been associated with caste. Though caste may be a
prominent and distinguishing factor for easy determination of B
backwardness of a social group, this Court has been routinely
discouraging the identification of a group as backward solely
on the basis of caste. Article 16(4) as also Article 15(4) lays
the foundation for affirmative action by the State to reach out
the most deserving. Social groups who would be most C
deserving must necessarily be a matter of continuous
evolution. New practices, methods and yardsticks have to be
continuously evolved moving away from caste centric
definition of backwardness. This alone can enable recognition
0
of newly emerging groups in society which would require
palliative action. The recognition of the third gender as a
socially and educationaMy backward class of citizens entitled
to affirmative action of the State under the Constitution in
National Legal Services Authority vs. Union of lndia 8 is E
too significant a development to be ignored. In fact it is a path
finder, if not a path-breaker. It is an important reminder to the
State of the high degree of vigilance it must exercise to
discover emerging forms of backwardness. The State,
therefore, cannot blind itself to the existence of other forms F
and instances of backwardness. An affirmative action policy
that keeps in mind only historical injustice would certainly result
in under-protection of the most deserving backward class of
citizens, which is constitutionally mandated. It is the
identification of these new emerging groups that must engage G
the attention of the State and the constitutional power and duty
must be concentrated to discover such groups rather than to
enable groups of citizens to recover "lost ground" in claiming
• (2014) s sec 438 H
720 SUPREME COURT REPORTS [2015] 5 S.C.R.
A preference and benefits on the basis of historical prejudice.
54. The perception of a self-proclaimed socially backward
class of citizens or even the perception of the "advanced
classes" as to the social status of the "less fortunates" cannot
B continue to be a constitutionally permissible yardstick for
determination of backwardness, both in the context of Articles
15(4) and 16(4) of the Constitution. Neither can any longer
backwardness be a matter of determination on the basis of
mathematical formulae evolved by taking into account social,
C economic and educational indicators. Determination of
backwardness must also cease to be relative; possible wrong
inclusions cannot be the basis for further inclusions but the
gates would be opened only to permit entry of the most
distressed. Any other inclusion would be a serious abdication
D of the constitutional duty of the State. Judged by the aforesaid
standards we must hold that inclusion of the politically
organized classes (such as Jats) in the list of backward
classes mainly, if not solely, on the basis that on same
parameters other groups who have fared better have been
E so included cannot be affirmed.
55. For the various reasons indicated above, we cannot
agree with the view taken by the Union Government that Jats
in the 9 (nine) States in question is a backward community
F so as to be entitled to inclusion in the Central Lists of Other
Backward Classes for the States concerned. The view taken
by the NCBC to the contrary is adequately supported by good
and acceptable reasons which furnished a sound and
reasonable basis for further consequential action on the part
G of the Union Government. In the above situation we cannot
hold the notification dated 4.3.2014 to be justified. Accordingly
the aforesaid notification bearing No. 63 dated 4.3.2014
·' including the Jats in the Central List of Other Backward
H Classes for the States of Bihar, Gujarat, Haryana, Himachal
RAM SINGH v. UNION OF INDIA 721
[RANJAN GOGOi, J.]
Pradesh, Madhya Pradesh, NCT of Delhi, Bharatpur and A
Dholpur Districts of Rajasthan, Uttar Pradesh and
Uttarakhand is set aside and quashed. The writ petitions are
accordingly allowed.
Kalpana K. Tripathy Writ Petitions allowed. B
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