When Supreme Court said poverty can’t be test of backwardness

The Kalelkar panel also stated that the social position of a community in the caste hierarchy, as also its representation in government service or industrial sphere, would also have to be considered.

Kalelkar himself had second thoughts after signing the report, and in the enclosing letter addressed to the President virtually pleaded that it be rejected on the ground that caste-based reservations would not be in the country’s interest. The government was not satisfied with the commission’s approach in determining the criteria for identifying backward classes under Article 15(4).

In the Indra Sawhney vs Union of Indian case (Mandal Commission case), a nine-judge bench of the apex court wrote that Kalelkar “opined that the principle of caste should be eschewed altogether. Then alone, he said, would it be possible to help the extremely poor and deserving members of all communities.”

The Mandal Commission, which followed Kalelkar Commission in 1979, submitted its report in December 1980. It recommended extending reservation benefits to socially and educationally backward classes (SEBC). Implementing it, the V P Singh government issued an Office Memorandum (OM) on August 13, 1990, directing that “27% of vacancies in civil posts and services under the Government of India shall be reserved for SEBC”.

Following protests against its implementation, petitions were filed challenging the OM. The court stayed the decision.

After the P V Narasimha Rao government came in in 1991, another OM was issued on September 25, 1991, modifying the earlier memorandum. The new OM said that “10% vacancies in civil posts and services under the Government of India shall be reserved for other economically backward sections of the people who are not covered by any existing schemes of reservation”.

The apex court struck this down while deciding the Mandal Commission judgment.

The court, which went into various Constitutional provisions on reservation, noted, “…identification of such class cannot be caste based. Nor it can be founded, only, on economic considerations, as ‘mere poverty’ cannot be the test of backwardness.”

Striking down the provision, the court said, “This clause provides for 10% reservation (in appointments/posts) in favour of economically backward sections among open competition (non-reserved) category. Though the criteria is not yet evolved by the Government, it is obvious that the basis is either income of a person and/or the extent of property held by him. The impugned Memorandum does not say whether this classification is made under Clause (4) or Clause (1) of Article 16… we find it difficult to sustain.”

The top court observed, “Reservation of 10% vacancies among open competition candidates on the basis of income/property-holding means exclusion of those above the demarcating line from those 10% seats. The question is whether this is constitutionally permissible. We think not. It may not be permissible to debar a citizen from being considered for appointment to an office under the State solely on the basis of his income or property-holding. Since employment under the State is really conceived to serve the people (that it may also be a source of livelihood is secondary), no such bar can be created…”

Subsequently, some state governments tried to introduce economic reservation.

In 2008, the Kerala government, under then Chief Minister V S Achuthanandan, decided to reserve 10-per cent seats in all graduation and post-graduation courses in government colleges and 7.5 per cent seats in universities for students belonging to economically backward among ‘forward’ communities.

Kerala Muslim Jamaat Council challenged this in High Court, which upheld the government’s decision, and the council moved the Supreme Court. The case is pending.

The BSP has also been demanding reservation for the poor among upper castes. In 2011, when she was UP’s CM, BSP chief Mayawati had written to the Centre on this.